PRACTICE |
Merck & Co., Inc. v. Brantford Chemicals Inc.
T-1780-03
2004 FC 1400, Martineau J.
13/10/04
13 pp.
Bifurcation order--Motion to set aside order of Prothonotary not to bifurcate proceeding (order separate trials on issues of liability and damages)--Prothonotary set out number of practical, economic considerations for determining issue of separation--Many factors inspired, imported from Ontario Superior Court of Justice decision--Although helpful, list not exhaustive, factors not necessarily having same importance, must be adapted to nature of proceeding, particular, unique circumstances of each case--Order for separate determination of issues, pursuant to Federal Court Rules, 1998, r. 107, made if Court satisfied, on balance of probabilities, in light of evidence, severance more likely than not to result in just, expeditious, least expensive determination of proceeding on merits (r. 3)--Would have been wrong for Prothonotary to grant or refuse to grant bifurcation order on basis trial of liability issue would or would not have likely facilitated or led to settlement of issue of damages --Clear this not overriding consideration for refusing bifurcation order in case at bar--As to whether splitting will save time, money, Prothonotary properly understood issue to be decided on balance of probabilities, not higher standard--Requirement in Ontario decision that factual structure upon which action based "extraordinary" or "exceptional" alien to intent, wording of rr. 3, 107--Whether opposing party would suffer injustice also key factor--Injustice must be real, go beyond disadvantage of procedural nature--Complexity of certain patent infringement actions relevant factor where elements of just, most expeditious, least expensive determination on merits considered by Court--Here, Prothonotary applied proper legal test--Conclusion complexity of issues not warranting departure from general rule issues be tried together, based on evidence, reasonable--In view of positions parties took before Prothonotary, not necessary to determine whether Prothonotary erred in law in affording any weight to affidavit of defendant's counsel--Both parties filed, relied on such affidavits, now legally introduced as evidence--Weight to be given to evidence matter better left to appreciation of Prothonotary--Fact evidence of defendant's counsel found inconclusive in other proceeding not constituting general ground of appeal--Each case determined on own merits--No palpable, overriding misapprehension of facts in Prothonotary's analysis of evidence--Prothonotary not fettering discretion--Conclusion based on her own appreciation of evidence, interpretation of circumstances of case--Appeal dismissed--Federal Court Rules, 1998, SOR/98-106, rr. 3, 107.