The Federal Court of Appeal (“FCA”) recently issued a decision in the case of Mud Engineering Inc. v Secure Energy Services Inc. 

Mud Engineering moved for a summary trial in the Federal Court to determine ownership of a patent at issue in a pending infringement action. The Federal Court found the evidence at the summary trial insufficient to declare ownership in favour of Mud Engineering. Notably, Mud Engineering relied solely on lay affidavit evidence which was found to include expert evidence, untranslated foreign language evidence, hearsay evidence, irrelevant evidence, and matters covered by settlement privilege – all of which was excluded by the court.

On appeal, the FCA was of the view that Mud Engineering was effectively asking to reweigh the evidence before the Federal Court and re-do the Federal Court’s findings on factually suffused questions of mixed fact and law. The FCA refused to do so and added a strongly worded reminder to litigants:

Summary trials are not a time for parties to engage in strategic behaviour as far as the evidence is concerned. They are not a time to hold back evidence for later. Instead, the parties must put their best foot forward. If there are evidentiary shortcomings in a party’s case in the summary trial, that party may well lose.

This case should remind litigants to carefully consider the risks of cutting costs in preparing evidence for summary trials.