PRACTICE |
Judgments and Orders |
Summary Judgment |
Trojan Technologies, Inc. v. Suntec Environmental Inc.
A-321-03
2004 FCA 140, Pelletier J.A.
5/4/04
14 pp.
Appeal from order granting summary judgment in patent infringement action--Scope of Federal Court Rules, 1998, r. 216 dealing with summary judgment--Motions Judge construed patent claims in light of experts' evidence-- Disposed of issues of invalidity, obviousness, ownership, infringement based on affidavit evidence--R. 216 permitting Court to grant summary judgment where no genuine issue for trial--Appellant arguing Motions Judge not considering whether genuine issue for trial but proceeded as though he were trial judge--Appellant submitting r. 216(1) required consideration of whether genuine issue for trial--Motions Judge's reasons show concluded no genuine issues for trial because able to decide all issues based on affidavit evidence --While some case law emphasizing fact-finding role of judge hearing motion for summary judgment, other cases take more restrained view of ambit of motion for summary judgment-- Scope of summary judgment rules recently reviewed in MacNeil Estate v. Canada (Department of Indian and Northern Affairs), [2004] 3 F.C.R. 3 (C.A.) (MacNeil)-- Clearly issues of credibility should not be decided on summary judgment applications--Motions Judge found no serious issues of credibility herein--Notion of credibility discussed in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.)--Indicates assessment of credibility involves examination of witness' testimony and of its consistency with probabilities surrounding currently existing conditions-- Assessment of credibility must not be based on one element only to exclusion of others, but on all elements by which it can be tested in particular case--One such element is impression created by witness giving evidence in chief and under cross-examination--Clear from reasons for order Motions Judge required to resolve several credibility issues--When Motions Judge preferred evidence of one expert to evidence of other, difficult to say no credibility issue--Motions Judge required to send matter on for trial--Appeal allowed--Federal Court Rules, 1998, SOR/98-106, r. 216.