Thursday, February 23, 2012

Bifurcation Restored

Dywidag Systems International, Canada, Ltd v Garford Pty Ltd 2012 FCA 50 Layden-Stevenson JA: Gauthier, Stratas JJA

As noted in yesterday’s post, Garford commenced an action against Dywidag based on alleged infringement of Garford’s patents, as well for alleged breaches of the Competition Act. Prothonotary Milczynski ordered bifurcation of the action, which was reversed by Zinn J 2010 FC 581 on the basis that the financial information necessary at the remedy phase would be relevant to the proof of the claim for lessening of competition under the Competition Act [FC 16]. Now that the Competition Act claim has been dismissed as being out of time, that basis for setting aside the bifurcation no longer exists [5], and the FCA accordingly restored the bifurcation order.

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