Associate Judge Trent Horne
Gowling WLG (Canada) for the Plaintiff
Dipchand LLP for the Defendant
Toronto-Dominion Bank v. Dyas (TD Benefits), 2024 FC 1651
October 21, 2024
In this decision, the Case Management Judge refused the defendant’s request to schedule a summary trial in a trademark infringement action commenced in June 2021. While a Case Management Judge has the discretion to refuse to schedule a summary trial, the Court has previously stated that such discretion should be exercised sparingly, and only in rare circumstances. The Court was satisfied, however, that this was “one of the rare circumstances where it is appropriate to refuse to schedule a summary trial.”
In July 2024, it became clear that a dispute resolution conference between the parties would not result in a settlement, and the plaintiff requested a trial date. At that time, the parties also set out a joint proposal for a timetable which included deadlines for examinations for discovery, discovery motions, and the delivery of expert reports. In September 2024, the defendant advised the plaintiff and the Court of its intention to move for a summary trial.
The Case Management Judge noted that the request for summary trial was made after the action had been before the Court for years, and where a schedule for steps leading to trial had already been agreed upon by the parties. Further, the Court found that it was not apparent that a summary trial would be more efficient: the defendant was not proposing summary trial on a narrow or discrete issue, and the estimated length of the summary trial was not significantly shorter than the alternative (1-2 days vs. 4-5 days).
Finally, the plaintiff had already been working on a jointly agreed-upon timetable when the defendant requested a summary trial, and the proposed schedule for a summary trial would significantly expedite the steps that the plaintiff was required to take. As a result, the plaintiff would be prejudiced if the request for summary trial were granted.
This decision indicates that requests for summary trial should be made as soon as practicable, in order to avoid prejudice to the other party. In addition, contested requests for summary trial are more likely to succeed where the moving party can demonstrate that significant efficiencies would be offered by proceeding under rule 216.
Prepared by David Bowden, Clark Wilson LLP