There are no requirements for a party to appear personally. Parties may appear by counsel.

The courts follow the common law rules of evidence and, in Quebec, the Civil Code of Quebec and related legislation. Section 40 of the Canada Evidence Act makes the laws of evidence in the province where the proceedings are taken applicable to all actions over which Parliament has legislative authority. Section 53 of the Federal Court Act recognizes the admissibility of evidence and, in addition, provides a saving clause for evidence which, although not admissible under the Canada Evidence Act, would be admissible under the relevant provincial evidence act. It provides as follows: "1) The evidence of any witness may by order of the Court be taken, subject to any rule or order that may relate to the matter, on commission, on examination or by affidavit. 2) Evidence that would not otherwise be admissible shall be admissible, in the discretion of the Court and subject to any rule that may relate to the matter, if it would be admissible in a similar matter in a superior court of a province in accordance with the law in force in any province, notwithstanding that it is not admissible by virtue of Section 40 of the Canada Evidence Act." The Federal Court Rules also deal with evidence: Rule 332 (affidavits), Rule 468 (pre-trial admission of facts and documents), Rules 477 to 479 (evidence de bene esse), Rule 481A (plans, models and photographs). and Rule 494 (procedure for introducing evidence at trial).

By virtue of section 19 of the Patent Act and Section 7.2 of the Integrated Circuit Topography Act, no action would lie against the use by the government of a patented invention or registered topography, if authorized by the Commissioner of Patents, who would award adequate remuneration.

Rule 344 of the Federal Court Rules provides as follows: "(1) The Courts shall have full discretionary power over payment of the costs of all parties involved in any proceeding, the amount and allocation of those costs and determining the persons by whom they are to be paid. ( … ) (3) In exercising its discretionary power pursuant to Subsection (1) the Court may consider (a) the result of the proceeding; (b) the amounts claimed and the amounts recovered; (c) the importance of the issues; (d) the apportionment of liability; … (f) any payment of money into Court . . . and the amount of that payment; (g) any offer of settlement in writing; (h) any offer of contribution …; (i) the volume of work; (j) the complexity of the issues; (k) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceedings; (l) the denial of or the neglect or refusal of any party to admit anything that should have been admitted; (m) whether any stage in the proceedings was, (i) improper, vexatious, or unnecessary, or (ii) taken through negligence, mistake or excessive caution; (n) whether or not two or more parties should be allowed more that one set of costs, where they defended the proceedings by different counsel or where, although they defended the proceeding by the same counsel, they separated their defence unnecessarily; (o) whether two or more parties, represented by the same counsel, initiated separate proceedings unnecessarily; and (p) any other matter relevant to the question of costs."

The superior courts of the provinces have inherent equitable jurisdiction to make such orders as are necessary for the administration of justice, in respect of patent infringement and breach of trade secrecy obligations. (The Federal Court has concurrent jurisdiction for patent infringement but not trade secrets).

Such a remedy might be ordered if necessary for the administration of justice. It would depend on the facts of the individual case. (It is noted that the requirement in Article 47 of the TRIPS Agreement is permissive not mandatory).

Canada has no ex officio enforcement procedures at the hand of its public authorities. Rather, as private rights of action, intellectual property rights are enforced by the right holders themselves through the judicial process.

A finding of urgency would depend on the facts of the individual case. It is a rare case that involves urgency of the type that warrants an ex parte injunction (M.C.A. Can. Ltd. v. Robert Simpson Productions [1971] F.C. 445, 3 C.P.R. (2d) 240 (Fed. Ct. T.D.)).

Irreparable harm cannot be adequately compensated by an award of damages, e.g., where there is serious doubt that the defendant would be able to pay any damages that might be awarded; where the loss of business would be devastating to the plaintiff and an accounting for profits would be an inadequate remedy; where the defendant enjoyed a disparate market power; or where damages would be unquantifiable. In determining the balance of convenience, the court may consider additional equitable factors, such as the effects an injunction would have on non-parties. Where the inconvenience to the plaintiff is equal to that of the defendant, the status quo should be maintained.

Under Rule 469 of the Federal Court Rules, the Federal court has jurisdiction, as part of its power to control its own process, to issue a Mareva injunction where there is a genuine risk that the defendant's assets would be removed or disposed of prior to judgement. Such an order requires affidavit evidence supporting the conclusion, on a prima facie basis, that further orders of the court would be frustrated if the injunction did not issue. Under Rule 470, the court may issue an Anton Piller order where the plaintiff establishes a strong prima facie case, that the potential damage would be very serious in the absence of an order, and that there is clear proof that the defendants would destroy the evidence, e.g., that there was a quantity of infringing goods which was about to be sold by the defendant to prospective buyers.

Ordinarily, ownership of intellectual property rights is proven by registration certificates, which are admissible in court (Patent Act, Section 14; Plant Breeders Rights Act, Section 65; Trade-marks Act, Section 54; Copyright Act, Section 53; Industrial Design Act, Section 7; and Integrated Circuit Topography Act, Section 15). Such certificates create a rebuttable presumption that the information contained therein is accurate.

The jurisdiction of the Federal Court (and the superior court of each province) to require an undertaking in damages or equivalent security exists as part of the court's power to control its own process.

Please see the answer to question 4, wherein Rule 469 of the Federal Court Rules is quoted in full. Subsection (2) of that Rule stipulates that any ex parte order lapses after ten days. In addition, subsection (5) makes such orders subject to recession, suspension or amendment by the court, including, in case of urgency, on an ex parte basis as well. The ordinary requirement would be for the party obtaining an order ex parte to notify the other party immediately. Under Rule 469 (2) of the Federal Court Rules, interim injunctions which have been obtained on an ex parte basis are only valid for ten days.

Under Rule 330 of the Federal Court Rules, the court may rescind ab initio an ex parte order of the court, where the party who moves for such an order establishes that it is proper for the order to be rescinded. Such motions are made on notice to the other party and are supported by affidavit evidence. In addition, under Section 27 of the Federal Court Act, an appeal lies to the Federal Court of Appeal from any interlocutory judgement of the Federal Court (Trial Division). Such an appeal would be brought by filing a notice of appeal within ten days after the pronouncement of the Trial Division.

Provisional measures such as an interim or interlocutory injunction are normally ordered only upon the plaintiff providing an undertaking in damages to the defendant. Such damages are assessed in the same manner as other assessments of damages, i.e., upon proof of losses sustained.

Customs does not apply border measures against the export of suspected intellectual property right infringing goods. We note that the provision in the last sentence of Article 51 of the TRIPS Agreement is permissive, not mandatory.

A certificate of registration of a trademark or copyright, together with an affidavit comparing the allegedly infringing good with that trademark or copyright would, where the infringement was self-evident, ordinarily constitute prima facie evidence of infringement. Where the infringement was not self evident, expert evidence may be required.

Both the Copyright Act and the Trade-marks Act require customs officials, under an order from the court, to take reasonable measures on the basis of information reasonably required by them and provided by the applicant to detain the goods. Customs officials do not make decisions on infringement of intellectual property rights, that is left to the courts. When customs officials receive a court order to detain certain goods, the officials will detect the goods by description, origin, importer, etc.. Describing the goods as counterfeit or pirated is not a useful description for customs purposes in detecting the goods. Once customs officials are satisfied that the goods are the subject of the court order, they will not release them without direction from the court to do so (or if the above two week time-limit expires). Furthermore, to assist in detecting shipments of any goods under a court order, customs officials may require some or all of the following information to be provided by the applicant: (a) Complete description of the goods (b) classification of goods under the Harmonized System (c) quantity and value of the goods (d) identity of importer. e.g., name, address (location), business number (e) identity of exporter and vendor (f) country of export (g) country of origin (h) place of importation/accounting of goods (i) approximate date of arrival (j) mode of transportation (e.g., sea, rail, land)

The authority of the courts to order the release of the detained goods, upon the condition described in the question, would fall within Section 53.1 of the Trade-marks Act, Section 44.1 of the Copyright Act, and Section 14 of the Integrated Circuit Topography Act, as the case may be. We are not aware of any cases where the courts have addressed this issue in reasons for judgement.

When customs officials are directed by a court order to detain specific suspected infringing goods, they will attempt to detect and detain those goods. Once a detention has been made, the applicant and the importer will be notified. The applicant has two weeks after the notification to notify customs officials that the applicant has commenced a proceeding for a final determination by the court of the issues. If customs officials have not received such notification within that two week time period (or whatever time period that the court may specify), the goods will be released back into the regular flow of customs traffic.