Federal Court or Superior Court: Which Is the Competent Court for Your IP Dispute?

For a tech founder watching a competitor infringe on your patent across multiple provinces, the immediate question isn’t just « how do I stop them? » but « where do I file to stop them most effectively? » The Canadian legal system presents a complex choice between the Federal Court and the various Provincial Superior Courts. Many believe the decision hinges on simple concurrent jurisdiction rules. They might hear that for trademark or copyright infringement, either court will do, and assume the choice is arbitrary.

This perspective overlooks the critical strategic implications. The reality is that the initial choice of forum is a decisive move in a high-stakes chess match. It can determine whether you obtain an injunction that is enforceable from British Columbia to Newfoundland or one that stops at the Ontario-Manitoba border. It dictates whether you can challenge the very validity of a competitor’s patent or if you are limited to arguing about infringement alone. The conventional wisdom focuses on what is permissible, but the winning strategy focuses on what provides the most leverage.

But what if the true key to this decision lies not in a simple checklist of rules, but in understanding the concept of *jurisdictional leverage*? This article deconstructs the strategic differences between these judicial bodies. We will move beyond the basics of jurisdiction to analyse which court offers the greatest advantage for a tech founder seeking swift, decisive, and nationwide enforcement of their intellectual property rights. We will explore the fatal errors that get cases dismissed, the procedural weapons available in each court, and how to draft a claim that is built for the right battleground from day one.

This guide will navigate the critical decisions you must make before ever stepping into a courtroom. Explore the detailed breakdown below to understand the unique powers and limitations of each judicial forum and how to leverage them for your specific intellectual property dispute.

Why Filing in Small Claims Court for $36,000 Is Impossible in Ontario?

For a tech founder dealing with a minor infringement, the idea of using Small Claims Court seems appealing due to its lower costs and simplified procedures. However, this path is immediately blocked by strict monetary limits. In Ontario, for instance, a claim for $36,000 is automatically disqualified. This is because, according to the Canadian Intellectual Property Office, Ontario’s Small Claims Court has jurisdiction for claims up to $35,000. Exceeding this amount, even by a small margin, places the matter outside the court’s authority, forcing you into the more complex and costly Superior Court system.

More importantly for IP disputes, the remedies available in Small Claims Court are severely limited. While you can sue for monetary damages up to the prescribed limit, you generally cannot obtain an injunction. This is a critical deficiency for a tech founder whose primary goal is often to stop the infringing activity immediately. A successful monetary award months or years later is a hollow victory if the competitor has been freely using your IP in the meantime. The inability to secure injunctive relief makes Small Claims Court a non-starter for most serious IP enforcement actions, regardless of the dollar amount involved.

Therefore, attempting to use this venue for anything beyond the most minor, purely monetary compensation is a strategic error. It’s crucial to assess not only the value of your claim but, more importantly, the nature of the remedy you require before choosing your court.

Can You Sue a US Supplier in a Canadian Court of Justice?

In a globalised market, it’s common for a Canadian tech company to face IP infringement from a foreign entity, such as a US-based supplier selling infringing products online to Canadian customers. The question of whether a Canadian court can assert jurisdiction over this foreign defendant is a critical strategic hurdle. The answer is yes, provided a « real and substantial connection » can be established between the dispute and the Canadian province.

The Supreme Court of Canada, in a landmark decision, established the *Van Breda* test to determine this connection. As legal analysis of the Supreme Court’s framework confirms, jurisdiction can be assumed if the case is linked to the province through one of four connecting factors. For a tech founder, the most relevant factors are typically that the defendant « carries on business » in the province or that the tort (the infringement) was « committed » there. An American company actively marketing and shipping infringing products to customers in Ontario, for example, would almost certainly meet this test. This gives the Canadian tech founder a clear basis to initiate a lawsuit on home turf.

Once jurisdiction is established, the next strategic decision is Federal versus Provincial Court. This is where a key piece of jurisdictional leverage comes into play. A Provincial Superior Court injunction is only enforceable within that specific province. In contrast, the Federal Court’s jurisdiction extends across all Canadian provinces and territories, providing a powerful, one-stop solution. For a US supplier selling online across Canada, a single Federal Court order can halt their activities nationwide, offering a far more efficient and comprehensive remedy than filing separate actions in multiple provinces. This enforcement asymmetry makes the Federal Court the superior strategic choice for cross-border, multi-provincial infringement.

Tax Court of Canada: Why You Cannot Argue Your CRA Appeal in Provincial Court?

To fully grasp the concept of jurisdictional boundaries in IP law, a powerful analogy can be drawn from an entirely different legal field: tax law. If you have a dispute with the Canada Revenue Agency (CRA) over your income tax assessment, you cannot take your case to the Ontario Superior Court of Justice or the Court of Queen’s Bench of Alberta. The only appropriate venue is the Tax Court of Canada. This is not a matter of choice or strategy; it is a matter of statutory exclusivity. The law creating the Tax Court grants it sole authority over such appeals.

This principle of statutory exclusivity is directly mirrored in intellectual property law, particularly within the Federal Court. Certain IP matters are legally reserved for the Federal Court, and provincial courts are explicitly barred from hearing them. This is a critical distinction that trips up many litigants. As the Canadian Intellectual Property Office states, the Federal Court has a unique and exclusive role in specific IP actions.

Only the Federal Court has the jurisdiction to impeach, invalidate or expunge IP registrations.

– Canadian Intellectual Property Office, Government of Canada – Settling IP Disputes in Court

This means if the core of your strategy involves not just suing for infringement but challenging the validity of a competitor’s patent, or seeking to have their registered trademark struck from the register, you have no choice but to proceed in Federal Court. Attempting to bring such a claim in a provincial court is a fatal jurisdictional error, just like trying to argue a CRA appeal anywhere but the Tax Court.

As this demonstrates, the legal authority is not fluid; it is assigned by statute. Understanding these hard-coded jurisdictional monopolies is fundamental to avoiding a case dismissal before it even begins. It transforms the court selection process from a preference to a necessity.

The Jurisdictional Error That Gets Your Case Thrown Out Before It Starts

The single most catastrophic and entirely avoidable mistake in IP litigation is filing in a court that lacks the fundamental authority—or jurisdiction—to hear the case. This isn’t a minor procedural slip-up; it’s a foundational defect that will lead to a motion to strike your claim, resulting in your case being dismissed with costs awarded against you. For a tech founder, this means wasted time, squandered legal fees, and a loss of momentum against an infringing competitor.

The division of power between the Federal Court and Provincial Superior Courts is the primary source of these errors. While some areas of IP law, like copyright and trademark infringement, have concurrent jurisdiction (meaning you can choose either court), other critical areas are exclusive to one or the other. Is the core of your dispute about the breach of a patent licensing agreement? The provincial court is the proper forum, as it’s fundamentally a contract law issue. Are you seeking to invalidate a competitor’s patent or have their trademark registration expunged from the official register? As discussed, that is the exclusive domain of the Federal Court. Filing a patent impeachment case in a provincial court is a guaranteed failure.

To avoid this pitfall, a litigant must ask a series of critical questions before drafting their claim. Does your case primarily hinge on the interpretation of a contract? That points to provincial court. Does your claim require a ruling on the validity of a registered IP right? That directs you squarely to the Federal Court. Do you need an injunction that applies nationwide? That is a strong strategic reason to choose the Federal Court, even if a provincial court also has jurisdiction over the infringement itself. A clear way to visualise this is by comparing the jurisdictions, as often outlined by intellectual property specialists:

Failing to correctly map your legal objectives to the correct column in this table is not a strategic miscalculation; it is a fatal flaw in the foundation of your case.

How to Request a Change of Venue If the Opposing Party Is biased?

In provincial court systems, a « change of venue » motion is a procedural tool used to move a trial from one judicial district to another within the same province. This is typically argued on the basis that a fair trial is impossible in the original location, perhaps due to a biased jury pool or the overwhelming influence of an opposing party in a smaller community. However, tech founders litigating in the Federal Court must understand that this concept operates very differently.

The Federal Court is not a collection of regional courts; it is a single, national institution with offices across Canada for administrative convenience. As a leading IP law firm has noted, this structural difference is key. When you have a hearing in Vancouver and another in Halifax, you are not moving between different courts, but appearing before the same court in different locations.

The Federal Court is a single national court, and while hearings are held in different cities, it’s not the same as changing venue between two distinct judicial districts of a provincial court.

– Smart & Biggar IP Law Firm, Provincial Courts: Intellectual Property Understudies (2019)

This means a traditional « change of venue » motion based on local bias is generally inapplicable. The presiding judge could be from any part of Canada, and the court’s rules and procedures are uniform nationwide. The strategic consideration here is not about escaping local bias but about convenience and cost related to the location of hearings, witnesses, and evidence. While a party can request hearings be held in a different city for practical reasons, it is not the same as formally transferring the case to a new judicial authority. This uniformity is a strategic advantage, as it removes the risk of « hometown justice » and ensures that factors like cost recovery are applied consistently. For example, the Federal Court’s framework for awarding a portion of legal fees to the successful party applies the same whether the hearing is in Toronto or Calgary, creating a predictable cost-risk environment.

Forum Non Conveniens: The Strategy That Can Move Your Trial to a More Favourable Province

Once a court has established that it has jurisdiction to hear a case—for example, a BC court asserting jurisdiction over an Ontario-based defendant—the fight may not be over. The defendant can deploy a powerful piece of procedural weaponry: the doctrine of *forum non conveniens* (Latin for « inconvenient forum »). This is a legal argument asking the court to decline its valid jurisdiction in favour of another court that is « clearly more appropriate » to hear the case.

For a tech founder, this is a critical strategic battleground. If you file a patent infringement suit in your home province of British Columbia, the defendant in Ontario could argue that the case should be moved to Ontario because the majority of witnesses, the physical evidence, and the relevant business operations are located there. If successful, this move forces you to litigate on their home turf, potentially increasing your costs and logistical complexity. It is crucial to understand, as clarified in Canadian case law, that this is a discretionary remedy. It only comes into play *after* your chosen court has confirmed it has jurisdiction. The burden is on the defendant to prove, with compelling evidence, that the alternative forum is not just more convenient, but *clearly* more suitable for the case to proceed.

Anticipating a *forum non conveniens* motion is a key part of second-order thinking in litigation strategy. When choosing your initial court, you must consider not only if it has jurisdiction, but also if it can withstand a challenge as the most appropriate forum. Factors like the location of key experts, where the infringing sales occurred, and where the damages were most acutely felt will all be weighed by the judge. Selecting a forum that is not only legally valid but also the clear centre of gravity for the dispute can effectively neutralise this potent defensive strategy from your opponent.

Grounds for Review: When Can You Ask a Court to Overturn an Agency’s Ruling?

Beyond disputes between two private parties, the Federal Court also serves as the venue for judicial review of decisions made by federal administrative bodies, including the Canadian Intellectual Property Office (CIPO). If CIPO makes a ruling you believe is incorrect—for instance, regarding a patent application or a trademark opposition—your recourse is to apply to the Federal Court to have that decision reviewed and potentially overturned.

However, « judicial review » is not a second chance to re-argue your entire case. The court’s role is not to substitute its own opinion for the agency’s, but to determine if the agency made a reviewable error in its process or legal reasoning. The grounds for review are specific and the standard is high. You must demonstrate that the decision was unreasonable or incorrect on a point of law. For instance, the Federal Court of Appeal has scrutinised the interpretation of statutory language, cautioning against loose interpretations in patent law. In *Canada v Galderma Canada Inc, 2019 FCA 196*, the court warned that colloquial phrases could not replace the precise definitions within the *Patent Act*, underscoring the technical and rigorous nature of these reviews.

This process has become increasingly relevant with recent changes to Canadian patent law, such as the introduction of Patent Term Adjustment (PTA) to compensate for patent office delays. A tech founder who disagrees with CIPO’s calculation of their patent term can seek a review, but this is a formal and costly process. For example, as of January 1, 2025, the official application fee to obtain a Patent Term Adjustment calculation from CIPO is CAD $2,500, and that is before any costs associated with a judicial review in Federal Court. Understanding the high bar and the specific grounds for review is essential before embarking on this specialised legal path.

How to Draft a Statement of Claim That Survives a Motion to Strike?

After strategically selecting the correct court, the next critical step is drafting the Statement of Claim. This document is the foundation of your entire case. A poorly drafted claim is vulnerable to a motion to strike from the opposing party, which can lead to parts of your case—or the entire action—being thrown out at the very beginning. To survive this challenge, your claim must be a masterclass in precision, pleading only the necessary material facts and clearly articulating the legal basis for the remedies you seek.

A common mistake is to plead evidence—that is, to detail *how* you will prove your case. The rules of court procedure require you to plead only the material facts that, if proven true, would entitle you to a legal remedy. For example, for patent infringement, you must plead that you own a valid patent (including its registration number) and that the defendant has performed specific infringing acts (e.g., making, using, or selling the patented invention) on specific dates and in specific locations. You should not include witness testimony or expert reports in the claim itself; that evidence comes later. Adhering to the strict formatting requirements, such as Form 171A in the Federal Court or Rules 25.06-25.11 in Ontario, is non-negotiable.

Finally, your claim must precisely state the remedies you are seeking. This goes beyond a simple demand for money. Do you need a permanent injunction to stop future infringement? An order for the « delivery up » and destruction of infringing goods? An accounting of the defendant’s profits, or statutory damages as provided under the *Copyright Act*? Each remedy has a different legal basis and must be explicitly requested. The choice of court directly impacts the scope of these remedies, as shown in the table below which highlights the significant advantage of the Federal Court for nationwide relief.

Now that you understand the strategic landscape of jurisdictional choice in Canadian IP litigation, the next step is to apply this framework with precision. Building a robust case requires not only selecting the right court but also articulating your claim with clarity and foresight. To secure your intellectual property and achieve your commercial objectives, a flawlessly executed legal strategy is paramount. Engage with qualified legal counsel to translate this strategic understanding into a powerful and effective Statement of Claim.