Overview
Summary trials are known for their efficiency and convenience. They help parties get results with less expense, doing away with some of the formalities of a full application or action.
That said, a summary trial is still a trial before the court. That means parties must lead their case in full. A recent decision reminds litigants to ensure they put forth their best possible case when in a summary trial because there's no second kick at the can.
The Case
The Federal Court of Appeal emphasized making one's case in summary trials.
The context for this decision is a patent ownership dispute. The plaintiffs brought an action in Federal Court alleging patent infringement. The defendants counterclaimed and alleged patent infringement. The plaintiffs sought and received summary judgment to deal with the issue of patent ownership.
On motion, the plaintiffs submitted little evidence regarding ownership of the patents. The minor amount they did submit was given little weight by the Federal Court . This evidence was largely centered around lay affidavit evidence, and also improperly included:
- Expert evidence.
- Untranslated foreign language evidence.
- Hearsay evidence.
- Irrelevant evidence.
- Material covered by settlement privilege.
The Federal Court excluded this improper evidence in making its decision.
The Federal Court ultimately found that neither party could establish true ownership due to insufficient evidence. Without any ownership, the plaintiffs could not pursue their patent infringement claim against the defendants.
On Appeal: No Round Twos
The plaintiffs appealed the Federal Court decision to the Federal Court of Appeal. On appeal, the plaintiffs claimed that the Federal Court decision created an absurd result: lack of patent ownership by either party. Further, the plaintiffs submitted that there was an issue regarding the trial judge's decision to exclude the improper evidence.
In its decision, the Federal Court of Appeal underscored the importance of parties putting their best evidence forward in summary trials. The court confirmed that summary trials "are not a time to hold back evidence for later…[i]f there are evidentiary shortcomings in a party's case in the summary trial, that party may well lose."
The majority of the judges hearing the appeal acknowledged that there likely were procedural errors within the trial judge's evidentiary decisions. Despite this, the court confirmed that discretionary and evidentiary decisions of a trial court are only overturned when there is a palpable and overriding error (e.g., a choice that is clearly incorrect and determinative of the entire issue). The court noted no palpable and overriding errors and upheld the trial judge's findings.
The court also disagreed with the plaintiffs' submission that neither party gaining patent ownership was an absurd result. The majority of the judges hearing the appeal noted that the trial judge ruled on what was before her, and that the decision doesn't prevent the parties from establishing ownership of the patents in other (separate) matters against third parties.
Dismissing the appeal, the majority of the court reiterated that summary trials should not become "a consequence-free dress rehearsal for a later trial" in the same matter.
Takeaways
This case reminds litigants that summary trials are meant to "end issues or litigation summarily and once and for all." If a party failed on issue in a summary trial and then had the issue retried in a full action, the court stated that there would be no real value to having the initial summary trial — an actual absurd result.
The takeaway is simple: do not strategically retain relevant evidence in a summary trial so you can try to relitigate an issue within a full trial. Be sure to submit all relevant evidence in a summary trial because you won't get a second shot.