Connection Between Patent Remedies and Competition Act Claims

Dywidag Systems International, Canada, Ltd. v. Garford Pty Ltd. 2011 FCA 264 Mainville J

I don’t normally comment on procedural matters, but there haven’t been many substantive decisions lately, so I thought I would summarize this motion.

Garford sued Dywidag on the basis of patent infringement and under the Competition Act. Dywidag obtained an order for bifurcation of liability and monetary remedy, which order was set aside by Zinn J 2010 FC 581, essentially solely on the basis that the financial information necessary at the remedy phase overlapped with the financial information necessary to prove liability under the Competition Act claim. Dywidag appealed (the Bifurcation Appeal). Subsequently, Russell J 2010 FC 996 granted a motion for summary judgment on Competition Act claim on the basis that the limitations period had run. That decision has also been appealed (the Competition Act Appeal).

In the present motion Dywidag sought to amend its Notice of Appeal in the Bifurcation Appeal, presumably to account for the implications of Russell J's Competition Act decision, and to ensure that the Bifurcation Appeal would be heard immediately after the Competition Act Appeal, even though the proceedings in the Bifurcation Appeal were much further advanced, and, but for the order sought, would be heard first. In light of the close connection between Zinn J's refusal of the bifurcation order and the Competition Act claim, Mainville J granted the orders sought by Dywidag.