(This statement is not part of the Rules.)

Issue and objectives

The purpose of the Rules Amending the Federal Courts Rules (“the Rules”) is to effect changes to current rules 213 to 219 which provide for summary judgment in the Federal Courts and to make any consequential amendments.

Motions for summary judgment may be brought by a party to an action and may be granted by the Court, where there is no genuine issue for trial. Such motions are based solely on the evidence adduced by the parties in their motion records (e.g. affidavits or other documents). This way of proceeding allows for the efficient disposition of actions, in whole or in part, where a trial to hear a full range of evidence is unnecessary.

The current judicial interpretation of the summary judgment rule makes it unlikely that a motion for summary judgment will be granted if there are conflicts in the evidence and the case turns on the drawing of inferences, or if an issue of credibility arises. This interpretation does not permit sufficient flexibility to manage the Court’s caseload efficiently and to provide for the expedited disposition of cases that do not require a full trial.

In addition, the parties’ evidentiary burden needs to be clarified to ensure that these rules are consistent with the existing jurisprudence on this point.

These proposed amendments have no financial repercussions.

Description and rationale

The Rules Committee of the Federal Court of Appeal and the Federal Court (“Rules Committee”) is of the view that the interests of justice would be better served by the incorporation of a summary trial procedure, similar to that found in rule 18A of the British Columbia Rules of Court, into the Federal Courts Rules. Such an amendment would allow parties to move for, and the Court to grant, summary judgment in a greater range of circumstances than under current rule 216(3). This will also give parties greater control over the pace of their litigation.

The rules on summary judgment will be amended to create a summary trial proceeding. This is in addition to motions for summary judgment. The Court can then determine an issue or action by way of summary trial when it becomes clear, in the course of adjudicating a motion for summary judgment, that there is conflicting evidence or that issues of credibility exist which would otherwise require a full trial. Additionally, a party will be able to bring a motion for summary trial where, in the party’s opinion, there are genuine issues that could be determined without a full trial. These amendments will expand the number of instances in which an action may be disposed of summarily.

The proposed amendments provide greater flexibility to the parties and to the Court, thereby enhancing access to justice.

The Rules Committee is also of the opinion that it is advisable to clarify the evidentiary burden on a party responding to a summary judgment motion, given the recent jurisprudence on this point.

Technical description

To meet the above-mentioned objectives of the Rules, the Rules Committee proposes amendments to the following rules:

Rule 50(1)(c) is amended to clarify that a prothonotary does not have jurisdiction to hear and determine a motion for summary trial.

Rule 81(1) is amended to clarify that the exception allowing affidavits on information and belief to be filed in support of motions is not applicable to motions for summary judgment or summary trial.

Rule 213(1) is amended to allow a party to bring a motion for summary judgment or summary trial prior to the time, date and location of the trial having been fixed. The Rules Committee notes that the Court continues to have an overriding power to dispense with compliance with any of the Rules, including the new rules for summary judgment, as provided for in rule 55.

Rule 213(2) is replaced by a provision which limits a party to bringing one motion for summary judgment or summary trial. Subsequent motions pursuant to rule 213(1) may only be brought with leave of the Court.

A new rule 213(3) requires the moving party to serve and file its motion record at least 20 days prior to the date set for the hearing of the motion. New rule 213(4) provides for a 10-day delay from the hearing date for any responding materials to be served and filed.

A new rule 214 clarifies the evidentiary burden on the responding party to a motion for summary judgment in a manner consistent with recent jurisprudence.

Rule 215(3) replaces former rule 216(3). Rule 215(3)(a) gives the Court the power to proceed to determine an action or issue by way of summary trial where it is satisfied that there is a genuine issue of fact and law for trial. The Court may make any order necessary for the conduct of the summary trial.

Rule 215(3)(b) empowers the Court to dismiss the motion for summary judgment in whole or in part and order that the matter proceed to trial and be specially managed allowing the matter to move forward as quickly as possible. This will allow for the just and most expeditious determination to the greatest number of cases, as set out in the General principle in the Federal Courts Rules (Rule 3).

Rule 216 is added to provide for a summary trial mechanism. It sets out the type of evidence which may be adduced [216(1)], the scope of rebuttal evidence by the moving party [216(2)], the instances in which the Court may dismiss the motion on or before its hearing [216(3)]; empowers the Court to make any order necessary for the conduct of the summary trial including an order requiring a witness to attend for cross-examination viva voce before the Court [216(4)]; permits the Court to draw an adverse inference where a party fails to cross-examine or file responding or rebuttal evidence [216(5)]; empowers the Court to grant judgment if satisfied that there is sufficient evidence for adjudication [216(6)]; make any order necessary for the disposition of the action [216(7)]; and, if the motion for summary trial is dismissed, order that the matter proceed to trial and be specially managed [216(8)].

Rules 217 to 219 are amended to include judgments under new rule 216 (summary trials).

Rule 218(c) of the French version is amended to better reflect the wording of the English version.

Rule 297 is amended to preclude motions for summary trial being brought in the context of a simplified action (as is set out in rule 292 regarding actions in which each claim is exclusively for monetary relief in an amount not exceeding $50,000 or, on motion, the Court orders that the action be conducted as a simplified action).

Rule 366 is amended to include motions for summary trial.

Consultation

Sections 45.1 through 46 of the Federal Courts Act provide that the rules concerning the practice and procedure before the Federal Court of Appeal and the Federal Court are established by the Rules Committee of the Federal Court of Appeal and the Federal Court (the “Federal Courts Rules Committee”), subject to the approval of the Governor in Council.

The amendments regarding summary judgment and summary trial were approved by the Federal Courts Rules Committee, which comprises the Chief Justices of the Federal Court of Appeal and the Federal Court; judges of both the Federal Court of Appeal and the Federal Court; the Chief Administrator of the Courts Administration Service; and practising lawyers designated by the Attorney General of Canada from both the private and public sectors, upon consultation with the Chief Justices of the Federal Court of Appeal and the Federal Court.

A Discussion Paper was circulated by the Rules Committee on October 13, 2006, with respect to summary judgement in the Federal Court for the purpose of receiving comments on possible alternatives to current rule 216. This Discussion Paper and a Notice to the Profession were posted on the Web sites of both the Federal Court of Appeal and the Federal Court. Comments were received from judges of the Federal Court of Appeal and the Federal Court, as well as from members of the Bar. Those comments were considered and discussed by a subcommittee of the Rules Committee. The majority of the comments supported the proposal.

Since then, the proposed amendments to the summary judgment rules were drafted and further discussions were had within the subcommittee, as well as at a meeting of the plenary Federal Courts Rules Committee. The proposed amendments were also discussed at Bench and Bar Liaison Committee meetings in 2007 and 2008 and the majority of the members were in agreement with the proposal.

Chantelle Bowers
Secretary of the Rules Committee of the Federal Court of Appeal and the Federal Court
Ottawa, Ontario
K1A 0H9
Telephone: 613-995-5063
Fax: 613-941-9454
Email: Chantelle.Bowers@fca-caf.gc.ca