ARCHIVED — Vol. 150, No. 45 — November 5, 2016

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Rules Amending the Federal Courts Rules

Statutory authority

Federal Courts Act

Sponsoring agencies

Federal Court of Appeal and Federal Court

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Rules.)

Issues

There is a need for various substantive amendments to the Federal Courts Rules to reduce the administrative burden (photocopying/shipping of documents) on litigants and the Courts, and to make the Courts more efficient by increasing access to simplified procedures and facilitating access to documents on court record.

Background

The Rules Committee of the Federal Court of Appeal and the Federal Court (Federal Courts Rules Committee) is a statutory committee created under section 45.1 of the Federal Courts Act to make, amend, or revoke rules, subject to the approval of the Governor in Council. Pursuant to section 45.1 of the Federal Courts Act, the Rules Committee includes the Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court; three judges designated by the Chief Justice of the Federal Court of Appeal, and five judges and one prothonotary designated by the Chief Justice of the Federal Court; the Chief Administrator of the Courts Administration Service; five members from the bar (designated by the Attorney General of Canada, after consultation with the Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court); and the Attorney General of Canada or a representative thereof. These Committee members all consult with their respective groups, whether the private or public bar or the courts, regarding proposals for possible amendment to the Federal Courts Rules.

The Committee holds a plenary meeting twice each year to consider ongoing amendment projects as well as new proposals for amendments. At the plenary meeting of the Federal Courts Rules Committee held on May 6, 2011, it was agreed that a list of possible changes, substantive in nature, to the Federal Courts Rules be examined by a Rules subcommittee. The substantive amendment proposals were referred for review by a new Rules subcommittee struck at the Federal Courts Rules Committee meeting of November 18, 2011. The new subcommittee met on January 20 and April 24, 2012, and prepared recommendations for consideration by the plenary Rules Committee at its meeting of May 11, 2012. A regulatory drafting team began work on the proposed amendments in 2013. Successive working drafts of the amendment project were discussed, reviewed, amended, and ultimately approved by the plenary Committee at its meetings of December 13, 2013, May 30, 2014, November 14, 2014, May 29, 2015, and November 27, 2015.

These suggested changes have been synthesized into a single package of amendments.

Objectives

The proposed amendments are the result of the work of the subcommittee, whose mandate was to address four issues, namely (1) the time limits for filing an appearance and a defence; (2) the way in which books of authorities are presented and filed with the courts; (3) the monetary limits in simplified actions; and (4) how to deal with the confidentiality of documents.

Description

The proposed amendments to the Rules are set out below:

Rule 50 — Increased monetary limit for jurisdiction of a prothonotary: The proposed amendment would increase the monetary jurisdiction of a prothonotary related to actions. Prothonotaries are appointed under the Federal Courts Act (section 12). They are full judicial officers and exercise many of the powers and functions of Federal Court judges. Their authority includes mediation, case management, practice motions (including those that may result in a final disposition of the case, regardless of the amount in issue), as well as trials of actions in which up to $50,000 is claimed (see rules 50, 382, and 383 to 387 of the Federal Courts Rules). The proposed amendment to Rule 50 would increase the limit from $50,000 to $100,000, allowing a prothonotary to hear actions that would otherwise need to be heard by a Federal Court judge. This takes into account the effect of inflation since 1998, when the current $50,000 reference level was set in the amendments to the Rules. The monetary adjustment addresses the cumulative effect over the years since 1998, but is also prospective so as to keep the jurisdictional limit ahead of the curve for another 15–20 years without having to amend the Rules every few years.

Rule 292 — Increased monetary limit for simplified action: Rules 292 to 299 of the Federal Courts Rules provide for simplified rules related to actions for claims for monetary relief in an amount not exceeding $50,000. The purpose of the simplified action rules is to allow for claims worth less than $50,000 to be dealt with quickly, through a less cumbersome and expensive process. These simplified procedures are adopted based on the principle of proportionality, namely that the Court procedures —and expenses — should be proportional to the amount in dispute for monetary claims. The proposed amendment to Rule 292 would increase the limit from $50,000 to $100,000. This takes into account the effect of inflation since 1998, when the current $50,000 reference level was set in the amendments to the Rules, as well as the levels in other Canadian jurisdictions that typically range from $50,000 to $100,000. For example, in Ontario, the simplified procedure rule was recently increased from $50,000 to $100,000 (http://www.obradovich.net/the-legal-process/legal-briefs/litigation-tools/simplified-rules/).

See the following link for an Ontario Attorney General report that provides a recommendation to increase the limit from $50,000: https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/cjrp/060_simplified.php.

Rules 70 and 348 — Electronic version of caselaw in books of authorities: Rules 70 and 348 currently require that each party file a book of authorities (or that they together file a joint book) that contains all the “reasons for judgment” (also known as “caselaw” or “jurisprudence”) to be referred to by that party. In some cases, due to the large number and the length of cases, a party may file multiple volumes of caselaw, all in paper format. This results in a significant printing/binding expense for parties, as well as a wider environmental cost and, ultimately, a shipping and storage cost for the Courts Administration Service. The proposed amendment would instead allow parties to file only the “relevant excerpt” (e.g. one or two pages) from any case available from an electronic database that is accessible to the public at no charge, which covers the majority of caselaw being cited in the Federal Court and Federal Court of Appeal. The judge or prothonotary hearing the matter can then simply access the cases electronically as needed. The reduced litigation costs resulting from this initiative will improve access to justice and lead to more efficient court administration.

Rule 348 — Amendment to schedule for filing books of authorities in appeals; French title of Rule: Rule 348 currently requires parties to file their book of authorities (i.e. statutes, regulations, and jurisprudence) no later than 30 days before the hearing date. However, many parties are late and the book of authorities is often filed only a few days before the hearing, or even at the hearing itself. This makes it difficult for the Court to prepare adequately for the hearing. The proposed amendment would require parties to file their book of authorities within the same time period for filing their requisition for hearing (i.e. before a hearing date is set). This would ensure that the book of authorities is available to the Court in time to prepare for the hearing of the appeal.

Furthermore, the French title of Rule 348 would be amended to accurately reflect the content of a book of authorities.

Rule 348.1 — Condensed appeal book: In proceedings on appeal, there is an informal practice for each party to provide the Court with a condensed book that contains the extracts from the appeal book and the book of statutes, regulations and authorities that the party will refer to in oral argument. Such a book assists the Court in having, in a condensed compilation, all the key materials that a party really intends to use at the appeal. The proposed Rule would simply codify the informal practice.

Rule 150.1 — Confidential documents in criminal law proceedings under the Competition Act: Although most criminal law proceedings in Canada are heard in courts at the provincial level, the Federal Court exercises criminal law jurisdiction related to certain matters under the Competition Act that are made subject to criminal law procedure and sanction. In many cases, the Crown offers to submit to the Court confidential draft versions of pre-trial documents (e.g. an agreed statement of facts) pending preparation of the final versions, which are then submitted on the record at the trial. Early access to these confidential drafts allows the presiding judge to better prepare for the trial, rather than waiting until the trial itself to have access to final versions of key documents on the record. The proposed rule would simply codify the Court practice of having these pre-trial documents treated as confidential before the trial, unless the Court orders otherwise. The Rule would mirror that in other criminal jurisdictions. For reference purposes, Rule 28.04(14) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) provides that “pre-trial conference reports and any other materials filed for use at the pre-trial conference shall be kept in the custody of the court and not disclosed except in accordance with these Rules”.

Rule 151 — Simplification/harmonization of the English and French versions of the Rule for Orders for confidentiality: Rule 151(1) and (2) together provide the procedure for a party to request, and the legal test for the Court to issue, a confidentiality Order. The proposed amendment improves the structure of the section and the consistency between the English and French versions while retaining the key elements of the test.

Rule 152 — Requirement that a party file a public redacted version of a confidential document: Upon motion by a party pursuant to Rule 151 for a confidentiality Order, the Court may allow the party to file certain documents on a confidential basis. However, after one or both parties file documents that are marked confidential, the Court may direct that a public version be filed with the confidential portions redacted, only to be advised that nothing was really confidential. In other cases, only a small part of a document is actually confidential. The result is time wasted by Registry staff and the judiciary for handling procedures of documents that should not actually be marked “confidential” (such documents have additional binding and must be kept in secure areas), as well as limitations on public access to documents filed in the Court, thus, interference with the open court principle. The proposed amendment to Rule 152 would require that a party file a public, redacted version of any document filed on a confidential basis pursuant to an Order of the Court (under Rule 151), along with a statement from the party’s legal counsel (or affidavit of the party) affirming that they have reviewed the order and that the only information that has been redacted from the public version of the document is that which is required to be treated as confidential by the order. Some further consequential changes are also made to other parts of Rule 152 to make the language and structure consistent with the proposed amendment.

Rules 204/204.1/208 — Procedure for Actions (new Notice of Intention to Respond and Timing of Defence): The current procedure for actions before the Federal Court requires that the plaintiff initiate the proceeding by way of a statement of claim and then that the defendant file a defence within 30 days (Canada), 40 days (United States) or 60 days (other countries). However, until the defendant files a defence, the plaintiff has no way of knowing whether the defendant has retained counsel or intends to contest the Court’s jurisdiction or defend against the action. In contrast, many other Courts in Canada require that the defendant file a preliminary “notice of appearance” if they intend either to contest the Court’s jurisdiction (or raise similar objections to the proceeding) or otherwise to defend against the action. Such a notice allows the plaintiff to open up discussions with the defendant’s counsel related to procedural issues or even mediation and settlement. The proposed amendment would allow the defendant to file a Notice of Intention to Respond, and if so, to thereby gain an additional 10 days to prepare their defence. However, filing of such a notice does not mean that the defendant thereby accepts that the Court has jurisdiction to hear the case — the amendment to Rule 208 preserves the defendant’s right to challenge the Court’s jurisdiction.

Furthermore, the different timelines between Canada, the United States, and elsewhere for the filing of a defence were established in a different era of communications. Both judges and practitioners on the Rules Committee have noted that the distinction between Canada and the United States is no longer justified, though recognize that there remain some other countries for which an additional delay is still warranted. Therefore, an amendment is proposed to standardize the timeline for filing a defence for defendants who are served with the plaintiff’s statement of claim in either Canada or the United States.

Amendment to Form 171A and new Form 204.1: Form 171A is amended to include reference to the new timelines for filing a defence and the reference to the new Notice under Rule 204 and 204.1. Form 204.1 provides the form to use for a Notice of Intent to Respond under Rule 204.1.

Rule 310(2)(c.1) — Clarification of reference to material to be contained in applicant’s record pursuant to Rule 309(2)(e.1): Rule 309(2)(e.1) provides that in a court proceeding by way of application, the applicant should include in their record any material that is to be used by the applicant at the court hearing that has been certified by a tribunal and transmitted both to the party and to the Court Registry. The proposed amendment simply clarifies that the respondent should include in their own record any material that is to be used by the respondent at the court hearing that has not already been included in the applicant’s record in accordance with Rule 309(2)(e.1).

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal as the proposed amendments would not impose or reduce any administrative burden.

Small business lens

The small business lens does not apply as the proposed amendments do not impose any additional costs on business.

Consultation

Section 46 of the Federal Courts Act provides 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 “Rules Committee”), subject to the approval of the Governor in Council.

The proposed procedural amendments have been recommended by the Rules Committee, which comprises the Chief Justice of the Federal Court of Appeal and the Chief Justice of 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 Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court.

Rationale

The Government, as a party to proceedings before the Federal Courts, as well as private litigants, incur costs when preparing and shipping photocopies of documents. These costs, and the environmental burden related to printing large documents in multiple copies, may be reduced, because under the proposed amendments, a party is relieved of filing paper copies of certain documents. Furthermore, the reduced paper burden will result in reduced shipping and storage costs for the Courts Administration Service.

The proposed amendments also provide clarity to stakeholders regarding the procedure that should be followed for Court proceedings.

The increase in the monetary jurisdiction of prothonotaries allows more claims to be heard by a prothonotary rather than a judge, who can then be assigned to hear matters that are within the exclusive jurisdiction of a judge.

The increased monetary threshold for simplified actions allows more claims to be heard according to the simplified procedure, supporting the principle of proportionality and reducing litigation costs for Government and private litigants in these cases.

Some of the amendments, such as those to ensure the timely filing of appeal books and to provide for the filing of a condensed appeal book, will improve efficiency of Court proceedings, resulting in more effective use of limited judicial resources.

Some of the amendments provide support for a proper balancing between the open court principle and valid privacy interests, including recognized commercial interests, at play in both civil and criminal legal proceedings. The amendments will facilitate access to documents on the court record that do not warrant confidentiality.

Finally, some amendments clarify existing informal practices, or simplify and clarify the drafting in existing rules, or coordinate practice with that in courts at the provincial level, thus making the rules of practice before the Federal Court and Federal Court of Appeal both more efficient and more transparent.

Implementation, enforcement and service standards

The amended Rules will come into force on the day on which they are registered.

Contact

Andrew Baumberg
Secretary of the Rules Committee of the Federal Court of Appeal and the Federal Court
Ottawa, Ontario
K1A 0H9
Telephone: 613-947-3177
Fax: 613-943-0354
Email: andrew.baumberg@fct-cf.gc.ca

PROPOSED REGULATORY TEXT

Notice is given, pursuant to paragraph 46(4)(a) (see footnote a) of the Federal Courts Act (see footnote b) and subject to the approval of the Governor in Council, that the rules committee of the Federal Court of Appeal and the Federal Court, pursuant to section 46 (see footnote c) of that Act, proposes to make the annexed Rules Amending the Federal Courts Rules.

Interested persons may make representations in writing concerning the proposed Rules within 60 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Andrew Baumberg, Secretary to the Rules Committee, Federal Court of Appeal, 90 Sparks Street, 12th Floor, Ottawa, Ontario K1A 0H9 (tel.: 613-947-3177; fax: 613-943-0354; email: andrew.baumberg@fct-cf.gc.ca).

Ottawa, October 20, 2016

Daniel Gosselin
Chief Administrator, Courts Administration Service

Rules Amending the Federal Courts Rules

Amendments

1 Subsections 50(2) and (3) of the Federal Courts Rules (see footnote 1) are replaced by the following:

Actions not over $100,000

(2) A prothonotary may hear an action exclusively for monetary relief, or an action in rem claiming monetary relief, in which no amount claimed by a party exceeds $100,000 exclusive of interest and costs.

Class proceedings

(3) A prothonotary may hear a claim in respect of one or more individual questions in a class proceeding in which the amount claimed by a class member does not exceed $100,000 exclusive of interest and costs.

2 Rule 70 of the Rules is amended by adding the following after subsection (2):

Book of authorities

(2.1) In respect of reasons for judgment, the book of authorities shall contain

  • (a) in the case where the book is filed in paper copy and the reasons are available from an electronic database that is accessible to the public at no charge, the relevant extracts of the reasons — including the head note, if any, and the paragraphs immediately preceding and following the extracts — with a reference to the database clearly marked on the page containing the extract; and
  • (b) in any other case, the reasons for judgment in full with the relevant extracts clearly marked.

3 The heading before rule 151 and rules 151 and 152 of the Rules are replaced by the following:

Confidential Documents and Information

Criminal proceeding under Competition Act

150.1 Unless the Court orders otherwise, all documents that have been submitted for filing, filed or added to the annex to the Court file in relation to a criminal proceeding instituted under the Competition Act shall be treated as confidential before the trial of that proceeding.

Motion for confidentiality

151 On motion, the Court may order that information that is contained in a document that is to be filed be treated as confidential if, after taking the public interest in open and accessible court proceedings into account, the Court is satisfied that the information should be treated as confidential.

Filing of documents containing confidential information

152 (1) A party who files a document that contains information that is required to be treated as confidential by an order under rule 151 shall

  • (a) clearly mark the document as confidential and identify the order;
  • (b) file a public version of the document from which the confidential information has been redacted; and
  • (c) file a statement from the party’s solicitor or an affidavit of the party, confirming that the solicitor or the party, as the case may be, has reviewed the order and that the only information that has been redacted from the public version of the document is that which is required to be treated as confidential by the order.

Access to confidential information

(2) Unless otherwise ordered by the Court,

  • (a) only a solicitor of record, or a solicitor assisting in the proceeding, who is not a party is entitled to have access to confidential information;
  • (b) documents that contain confidential information shall be given to the solicitor of record only if the solicitor gives a written undertaking to the Court that he or she will
    • (i) not disclose the information except to solicitors assisting in the proceeding or to the Court in the course of argument,
    • (ii) not permit the documents to be reproduced in whole or in part, and
    • (iii) when the information is no longer required for the proceeding or the solicitor ceases to be solicitor of record, either destroy all the documents and any notes about the information and file a certificate of their destruction or deliver the documents and notes as ordered by the Court;
  • (c) the solicitor of record, or a solicitor assisting in the proceeding, shall only be given one copy of a document that contains confidential information; and
  • (d) confidential information, and any other information derived from it, shall not be disclosed to the public.

Order to continue in effect

(3) An order under rule 151 continues in effect until the Court orders otherwise, including for the duration of any appeal of the proceeding and after final judgment.

4 Rule 204 of the Rules is replaced by the following:

Defence

204 (1) A defendant shall defend an action by serving and filing a statement of defence within

  • (a) 30 days after service of the statement of claim, if the defendant is served in Canada or the United States; and
  • (b) 60 days after service of the statement of claim, if the defendant is served outside Canada and the United States.

Extension of time

(2) However, if the defendant files a notice of intention to respond in accordance with rule 204.1, the time for serving and filing the statement of defence is extended by 10 days.

Notice of intention to respond

204.1 (1) A defendant who is served with a statement of claim and who intends to respond to the action may, within 10 days after the day on which they are served, serve and file a notice of intention to respond in Form 204.1.

Personal service

(2) The defendant shall serve the notice on every other party by personal service.

5 Rule 208 of the Rules and the heading before it are replaced by the following:

Preliminary Matters

No attornment to jurisdiction

208 A party does not attorn to the jurisdiction of the Court by

  • (a) filing a notice of intention to respond; or
  • (b) bringing a motion to object to
    • (i) any irregularity in the commencement of the action,
    • (ii) the service of the statement of claim,
    • (iii) the Court as not being a convenient forum, or
    • (iv) the jurisdiction of the Court.

6 Paragraph 292(a) of the Rules is replaced by the following:

  • (a) each claim is exclusively for monetary relief in an amount not exceeding $100,000, exclusive of interest and costs;

7 Paragraph 310(2)(c.1) of the Rules is replaced by the following:

  • (c.1) any material that has been certified by a tribunal and transmitted under rule 318 that is to be used by the respondent at the hearing and that is not contained in the applicant’s record in accordance with paragraph 309(2)(e.1);

8 The heading before rule 348 of the French version of the Rules is replaced by the following:

Cahier des lois, règlements, jurisprudence et doctrine

9 (1) The portion of subsection 348(1) of the Rules before paragraph (a) is replaced by the following:

Joint book

348 (1) Within the time for serving and filing the requisition for the hearing set out in subsection 347(1), the parties shall file

(2) Subsection 348(2) of the Rules is replaced by the following:

Separate books

(2) If the parties cannot agree on a joint book of statutes, regulations and authorities, they shall each file a separate book, without reproducing documents that are included in the book of another party.

(3) Rule 348 of the Rules is amended by adding the following after subsection (3):

Reasons for judgment

(3.1) In respect of reasons for judgment, a book of statutes, regulations and authorities shall contain

  • (a) in the case where the book is filed in paper copy and the reasons are available from an electronic database that is accessible to the public at no charge, the relevant extracts of the reasons — including the head note, if any, and the paragraphs immediately preceding and following the extracts — with a reference to the database clearly marked on the page containing the extract; and
  • (b) in any other case, the reasons for judgment in full with the relevant extracts clearly marked.

10 The Rules are amended by adding the following after rule 348:

Condensed Book

Copies and content

348.1 A party may file five paper copies of a condensed book that contains the extracts from the appeal book and the book of statutes, regulations and authorities that the party will refer to in oral argument.

11 Form 171A of the Rules is replaced by the Form 171A set out in the schedule to these Rules.

12 The Rules are amended by adding, in numerical order, the Form 204.1 set out in the schedule to these Rules.

Coming into Force

13 These Rules come into force on the day on which they are registered.

SCHEDULE

(Sections 11 and 12)

FORM 171A

Rule 171

STATEMENT OF CLAIM
(General Heading — Use Form 66)

(Court seal)

STATEMENT OF CLAIM

TO THE DEFENDANT:

A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the Plaintiff. The claim made against you is set out in the following pages.

IF YOU WISH TO DEFEND THIS PROCEEDING, you or a solicitor acting for you are required to prepare a statement of defence in Form 171B prescribed by the Federal Courts Rules, serve it on the plaintiff’s solicitor or, if the plaintiff does not have a solicitor, serve it on the plaintiff, and file it, with proof of service, at a local office of this Court

WITHIN 30 DAYS after the day on which this statement of claim is served on you, if you are served in Canada or the United States of America; or

WITHIN 60 DAYS after the day on which this statement of claim is served on you, if you are served outside Canada and the United States of America.

TEN ADDITIONAL DAYS are provided for the filing and service of the statement of defence if you or a solicitor acting for you serves and files a notice of intention to respond in Form 204.1 prescribed by the Federal Courts Rules.

Copies of the Federal Courts Rules, information concerning the local offices of the Court and other necessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone 613-992-4238) or at any local office.

IF YOU FAIL TO DEFEND THIS PROCEEDING, judgment may be given against you in your absence and without further notice to you.

(Date)

Issued by:
_________________________
(Registry Officer)

Address of local office: _______________________

TO: (Name and address of each defendant)

(Separate page)

CLAIM

1 The plaintiff claims: (State here the precise relief claimed.)

(In consecutively numbered paragraphs, set out each allegation of material fact relied on to substantiate the claim.)

The plaintiff proposes that this action be tried at (place).

(Date)

________________________________________
(Signature of solicitor or plaintiff)

(Name, address and telephone and fax numbers of solicitor or plaintiff)

_________________________________________________

FORM 204.1

Rule 204.1

NOTICE OF INTENTION TO RESPOND

(General Heading — Use Form 66)

NOTICE OF INTENTION TO RESPOND

The defendant (or defendant added by counterclaim or third party) intends to respond to this action.

(Date)

________________________________________
(Signature of solicitor or defendant)

(Name, address and telephone and fax numbers of solicitor or defendant)

TO: (Name and address of plaintiff’s solicitor or plaintiff)

_________________________________________________

[45-1-o]