Summary judgment rule change
The Federal Courts of Canada have released new SJ rules as advertised in the Courts’ Notice to the profession dated December 17, 2009. The RIAS indicates that one of the major additions is the new summary trial procedure, patterned after the BC rules (similar new rules are coming to Ontario in January - see the changes to Rule 20 as described here by Watson & McGowan).
Highlights of the new Federal Courts Rules include:
- summary judgment motion to be heard by a judge, not a prothonotary
- hearsay evidence not admissible
- a party is generally limited to bringing one SJ motion
- a response to a SJ motion must not speculate but must set out specific facts and adduce the evidence showing that there is a genuine issue for trial
- the SJ motion may proceed even if there is a genuine issue for trial; a summary trial procedure is available in these instances
- SJ motion not available in simplified action under rule 292
Does this rule change suggest that construction of patent claims could be done by way of summary judgment (similar to a US Markman hearing, once attempted by Canadian defendants without success in 2003/2004)?
