Two recent decisions of the Federal Court have granted motions seeking summary trial in intellectual property cases.

Summary Trial

The Federal Courts Rules provide that a plaintiff or defendant may apply to the Court for summary trial judgment in an action for which a defence has been filed but before the time and place for trial have been fixed. If the Court is satisfied that there is sufficient evidence for adjudication, regardless of the amounts involved, the complexities of the issues and the existence of conflicting evidence, the Court may grant judgment either generally or on an issue, unless the Court is of the opinion that it would be unjust to decide the issues on the motion.

This recent amendment to the Rules was made in order to allow the Court to dispose summarily of actions in a greater range of circumstances than previously allowed under the prior Rules, which allowed for summary judgment only in matters where there was "no genuine issue for trial", and had been judicially interpreted to prevent summary judgment where credibility was an issue, where the evidence was conflicting, and/or where the outcome of the motion turned on the drawing of inferences.

If the Judge can find the facts as he or she would at a trial, the Judge should grant summary judgment, unless to do so would be unjust, regardless of complexity or conflicting evidence. In determining whether summary trial is appropriate, the Court considers factors such as the amount involved, the complexity of the matter, its urgency, any prejudice likely to arise by reason of delay, the cost of taking the case forward to a conventional trial in relation to the amount involved, the course of the proceedings and any other matters that arise for consideration.

A summary trial has the potential to save costs since a full trial will not be necessary and the motion will proceed on the basis of affidavits.

Recent Cases

Judgment on summary trial has been recently granted in a case relating to the manufacture, importation, distribution, sale and offer for sale of counterfeit goods, even with multiple defendants, a complex fact pattern, numerous investigations and affidavits, and relatively large damages awards.

In another recent case involving patents and the related proceedings involving the NOC regulations for pharmaceutical patents, a motion for summary trial was again granted.


The prospect of seeking a summary trial in cases involving the infringement of intellectual property is a recent development which merits careful consideration in the right case.