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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Federal Court - Summary Proceedings

. ViiV Healthcare Company v. Gilead Sciences Canada, Inc.

In ViiV Healthcare Company v. Gilead Sciences Canada, Inc. (Fed CA, 2021) the Federal Court of Appeal engaged in a prolonged discussion of summary judgment (also called Summary Trial', under the federal rules) at paras 12-42.

. Canmar Foods Ltd. v. TA Foods Ltd.

In Canmar Foods Ltd. v. TA Foods Ltd. (Fed CA, 2021) the Federal Court of Appeal considered an appeal from a federal rules summary judgment (patent infringment) on the grounds that it took place before discovery:
[23] In recognition of the fact that summary judgment motions are an important tool for enhancing access to justice, most provinces have adopted rules of civil procedure to provide for such a mechanism with a view to ensure a fair balance between expediency and a just resolution of disputes. These rules, according to the Supreme Court, must be interpreted broadly so as to promote affordable, timely and just adjudication of civil claims: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 5 [Hryniak]. The rationale and goal of summary judgments have been well summarized in the following citation:
…The summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and costs on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial.

Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372 at para. 10 [Lameman].
[24] At the federal level, Rule 215 of the Federal Courts Rules, SOR/98-106 (the Rules) requires the Court to grant summary judgment if it is satisfied that there is "“no genuine issue for trial”" with respect to a claim or defence. A motion for summary judgment may be brought "“at any time after the defendant has filed a defence”", but "“before the time and place for trial have been fixed”" (Rule 213). The test is not whether a party cannot possibly succeed at trial, but rather whether the case is clearly without foundation, or is so doubtful that it does not deserve consideration by the trier of fact at a future trial. There does not appear to be any definitive or determinative formulation of the test, but the underlying rationale is clear: a case ought not to proceed to trial, with all the consequences that would follow for the parties and the costs involved for the administration of justice, unless there is a genuine issue that can only be resolved through the full apparatus of a trial. See: Premakumaran v. Canada, 2006 FCA 213, [2007] 2 F.C.R. 191 at para. 8; Feoso Oil Ltd. v. Sarla (The), 1995 CanLII 3605 (FCA), [1995] 3 F.C. 68 (C.A.) at para. 13 [Feoso Oil]; Garford Pty Ltd. v. Dywidag Systems International, Canada, Ltd., 2010 FC 996, 375 F.T.R. 38 at para. 2 [Garford Pty], aff’d 2012 FCA 48. This should obviously translate into a heavy burden on the moving party.


[26] There is no doubt that the timing of the motion for summary judgment was, strictly speaking, in conformity with Rule 213 of the Rules. It was brought after the respondent’s Statement of Defence was filed, but before a time and place for trial were fixed. Whether or not discovery had taken place at this stage is not a factor contemplated by Rule 213, and ought not to be regarded as such.

[27] The legal burden to establish that there is no genuine issue for trial clearly falls on the moving party. That being said, once the moving party has discharged its burden, the evidentiary burden falls on the responding party, who cannot rest on its pleadings and must come up with specific facts showing that there is a genuine issue for trial: Cabral v. Canada (Citizenship and Immigration), 2018 FCA 4, [2018] F.C.J. No. 21 at para. 23. As the Federal Court stated in Watson v. Canada (Indian and Northern Affairs), 2017 FC 321 at paragraph 22, "“[w]hile the burden falls on the moving party, both parties must put their best foot forward”". See also: Lameman at para. 11; Feoso Oil at paras. 13-14; Garford Pty at para. 6.


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