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22 June 2009
On May 1 2009 the Canadian Federal Court issued a practice direction aimed at streamlining complex litigation. The practice direction is available from the Federal Court's website.(1)
The practice direction formalizes and extends to all practice areas various initiatives that have recently been implemented informally by the court in the context of IP litigation. Overall, the court's objective is to facilitate, where possible, the scheduling of trials to commence within two years of the start of the proceeding.
The practice direction reminds parties and their counsel that case management is always available to them and may preferably be requested at the outset of a proceeding.
The practice direction also identifies a number of techniques to facilitate the efficient conduct of discovery that may be implemented by way of an order for directions from the case management judge, including:
Parties are also encouraged to use the request to admit procedures provided for in Rules 255 and 256 prior to discovery to simplify the discovery of facts, documents and other non-controversial matters.
The practice direction also offers the following suggestions and reminders to parties:
As noted, the practice direction reflects a number of initiatives by the court that have already seen implementation in some IP actions in the Federal Court. Of note, in April 2009 closing arguments were completed in sanofi-aventis Canada Inc v Apotex Inc (Federal Court File Number T-161-07). This action commenced in January 2007 and concerned the drug ramipril. Early in the proceeding, the plaintiffs obtained an order setting the matter down for a 30-day trial to commence on January 12 2009 on all issues, including standing, liability and remedies. Aggressive use of case management permitted the action to be conducted within the two-year timeframe and for the trial to proceed as scheduled.
It will be readily appreciated by IP rights holders that the ability to bring an infringement action to trial and obtain judgment in a timely and cost-effective manner is critical to effective enforcement. It is expected that the court's continuing commitment to the efficient conduct of complex litigation illustrated by the May 1 2009 practice direction will lead to further examples like the ramipril litigation of IP infringement actions proceeding quickly to trial in Canada's Federal Court.
For further information on this topic please contact Colin B Ingram at Smart & Biggar/Fetherstonhaugh by telephone (+1 613 232 2486) or by fax (+1 613 232 8440) or by email (email@example.com).
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