- Federal Court of Appeal Clarifies the Standard of Review for an Appeal of a Discretionary Interlocutory Order
- May 14, 2015 | Authors: Adrian J. Howard; Beverley Moore; Chantal Saunders
- Law Firm: Borden Ladner Gervais LLP - Ottawa Office
- Imperial Manufacturing Group Inc. v. Decor Grates Incorporated, 2015 FCA 100
This is a lawsuit for infringement of industrial designs. Imperial had appealed from an interlocutory order of the Federal Court (2013 FC 1189, unreported) refusing to order particulars of certain allegations in the respondent’s statement of claim. The appeal was dismissed.
The Court of Appeal found that there should only be one standard of review of a discretionary interlocutory order. Prior jurisprudence had suggested that “giving insufficient weight to relevant factors” could also be considered, but the Court stated that Housen v. Nikolaisen, 2002 SCC 33, should be used. Therefore, the Court held that “absent error on a question of law or an extricable legal principle, intervention is warranted only in cases of palpable and overriding error.”
On this standard, the appellants were unable to show a palpable and overriding error was made.