A recent decision of a U.K court concerning survey evidence may provide a view of where Canadian courts will be going in the future.[1]
The Supreme Court of Canada
In 2011 the Supreme Court of Canada considered theadmissibility of survey evidence in case where it was necessary to determine whether two trade marks were confusing. The case featured a significant amount of expert evidence of which the court was highly critical including survey evidence.
The court said that the survey evidence in that case was of little assistance to the trial judge and distracted from the required confusion analysis. As a result the court said
a) Where parties propose to introduce expert evidence, a trial judge should question the necessity and relevance of the evidence; and
b) it would be salutary to have a case management judge assess the admissibility and usefulness of proposed expert andsurvey evidence at an early stage so as to avoid large expenditures of resources on evidence of little utility.
In making these suggestions the court referred to a previous decision of the U.K Court of Appeal.
U.K Court of Appeal
In November of 2012 the admissibility of survey evidence was again considered by the U.K Court of Appeal. The court said that to avoid the spending of time and money on irrelevant and unsatisfactory evidence the following rules or practice would apply to survey evidence
i) A party may conduct a true pilot survey without permission, but at his own risk as to costs;
ii) No further survey may be conducted or adduced in evidence without the court’s permission; and
iii) No party may adduce evidence from respondents to any survey without the court’s permission.
In deciding whether to give permission, the court must evaluate the results of whatever material is placed before it. Only if the court is satisfied that the evidence is likely to be of real value should permission be given. The reliability of the survey is likely to play an important part in that evaluation. Even then the court must be satisfied that the value justifies the cost. This requires the court to conduct a cost/benefit analysis.
Comment
To date it does not appear that any Canadian court has yet issued a practice direction concerning survey evidence but the matters described above are relatively recent. It is quite possible that such an approach will be adopted in Canada and in particular in the Federal Court. If adopted it will add a new dynamic to actions where survey evidence is being considered.
[1]. Fage UK Ltd &Anor v Chobani UK Ltd [2012] EWHC 3755 (Ch) (11 December 2012)
John McKeown
John focuses on providing advocacy and advice concerning intellectual property and related matters, including protecting trade-marks, copyrights, patents, confidential information and misleading advertising and claims under the Competition Act. A growing component of his work relates to intellectual property claims on the Internet, including domain name disputes.
Direct Line: (416) 597-3371 | mckeown@gsnh.com
These comments are of a general nature and not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.