Bifurcation Refused Where Magnitude Of Savings Not Proven – Patent

The Federal Court refused bifurcation of a patent proceeding
into liability and quantification stages.

The defendant, British Columbia, moved for bifurcation asserting
the case was complex given the number of patent claims at issue and
the architecture of the alleged infringing system. The defendant
pointed to several alleged temporal and substantive infringement
issues and asserted bifurcation would save time and costs for the
parties and the Court.

The motions judge held it was “impossible to fathom from
the [defendant’s] record the magnitude of the potential
savings” of time and expense by bifurcation. She dismissed the
motion as the defendant had “not come close” to meeting
the threshold of satisfying the Court the savings were enough to
“outweigh the inherent inefficiencies of
bifurcation.”

Justice McHaffie dismissed the defendant’s appeal. He held
that although a moving party need not always precisely or exactly
quantify the anticipated savings in time or cost, it continues to
have the burden of demonstrating sufficient expected efficiencies
to justify bifurcation. Examples the Judge highlighted include: (i)
an approximation of the anticipated scope of documentary production
and or length of discovery; (ii) estimates of savings in expert
fees and time; (iii) the amount of time or resources a party will
have to dedicate to documentary discovery; and (iv) the anticipated
length of trial time dedicated to different issues. The judge noted
that the evidence may be different in each case but the motion
judges will assess whether that evidence satisfies that bifurcation
is more likely than not to lead to the just, expeditious, and least
expensive outcome of the proceeding.

Luc Bessette v.
British Columbia, 2023 FC 81

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