watson, wakeling and schutz jja

6.14: Appeal from master’s judgment or order
7.3: Summary Judgment (Application and decision)
9.13: Re-opening case
9.15: Setting aside, varying and discharging judgments and orders

Case Summary

The Plaintiffs appealed a Decision upholding a Master’s Order which had summarily dismissed their Claim. The Plaintiffs alleged that the Defendants unlawfully used the Plaintiffs’ technology to manufacture flexible composite pipe. The Defendants had applied for Summary Judgment on the basis that two of the Plaintiffs, Wolfe and Composite Technology Inc., had no interest in the disputed intellectual property and the other, Proflex Pipe Corporation, had been struck from the Corporate Registry and was not a legal entity when the Claim was filed, or at the time of the Application.

The Court considered Rule 7.3, and noted that the Court may grant Summary Judgment if there is no merit to the Plaintiff’s Claim. The test is whether the moving party’s position is unassailable: if the “likelihood of success is very high and the nonmoving party’s prospects of success are very low”. Additionally, each party must present its strongest case. Importantly, a Defendant who moves for Summary Judgment can rely on arguments not raised in the Statement of Defence, as the wording of Rule 7.3 permits an Application for Summary Judgment to be made before a Statement of Defence is filed.

The Court upheld the Decision affirming the dismissal of the Plaintiffs’ Claim. The Appeal was dismissed.

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