ARCHIVED — Vol. 149, No. 3 — February 11, 2015

Warning This Web page has been archived on the Web.

Archived Content

Information identified as archived is provided for reference, research or recordkeeping purposes. It is not subject to the Government of Canada Web Standards and has not been altered or updated since it was archived. Please contact us to request a format other than those available.

Registration

SOR/2015-21 January 30, 2015

FEDERAL COURTS ACT

Rules Amending the Federal Courts Rules

P.C. 2015-44 January 29, 2015

The rules committee of the Federal Court of Appeal and the Federal Court, pursuant to section 46 (see footnote a) of the Federal Courts Act (see footnote b), makes the annexed Rules Amending the Federal Courts Rules.

Ottawa, October 8, 2014

ROGER T. HUGHES
Chair
Rules committee of the Federal Court of Appeal
and the Federal Court

Whereas, pursuant to paragraph 46(4)(a) (see footnote c) of the Federal Courts Act (see footnote d), a copy of the proposed Rules Amending the Federal Courts Rules, substantially in the annexed form, was published in the Canada Gazette, Part I, on January 25, 2014 and interested persons were invited to make representations concerning the proposed Rules;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to section 46 (see footnote e) of the Federal Courts Act (see footnote f), approves the annexed Rules Amending the Federal Courts Rules, made by the rules committee of the Federal Court of Appeal and the Federal Court.

RULES AMENDING THE FEDERAL COURTS RULES

AMENDMENTS

1. The definition “business day” in rule 2 of the Federal Courts Rules (see footnote 1) is repealed.

2. Rule 21 of the Rules is replaced by the following:

Records

21. The Administrator shall keep all records necessary for documenting the proceedings of the Court and enter in them all orders, directions, foreign judgments ordered to be registered, pleadings and other documents filed in a proceeding.

3. (1) The portion of subsection 23(1) of the Rules before paragraph (a) is replaced by the following:

Court file

23. (1) For each proceeding of the Court, the Administrator shall keep a file that is composed of the following documents, each marked with its date and time of filing, and that is organized by order of filing:

(2) Subsection 23(2) of the Rules is replaced by the following:

Annexes

(2) The Administrator shall keep an annex to each Court file that is comprised of

  • (a) all affidavits;
  • (b) all exhibits; and
  • (c) all other documents and material in the possession of the Court or the Registry that are not required by these Rules to be kept in the Court file.

4. The Rules are amended by adding the following after rule 23:

Retention period

23.1 The Administrator shall retain all files, annexes — other than the exhibits — and records that are required by these Rules to be kept for the period of time specified in the retention schedule established by the Court.

5. (1) Subsection 24(1) of the French version of the Rules is replaced by the following:

Dossiers sur les avis de requête

24. (1) Lorsqu’est déposé, relativement à une action, une demande ou un appel envisagé, un avis de requête visant la prorogation d’un délai, l’autorisation d’interjeter appel ou l’obtention de toute autre ordonnance aux termes d’une loi, d’une règle ou d’un autre texte législatif, l’avis de requête, tout affidavit déposé relativement à celui-ci et toute ordonnance en résultant sont conservés dans les dossiers de la Cour réservés aux avis de requête de ce genre.

(2) Subsection 24(2) of the Rules is replaced by the following:

Copies on file or annex

(2) If the proceeding is subsequently commenced, a copy of the order and of the other documents related to the motion shall be added to the Court file or annex for the proceeding, as applicable.

6. Rule 25 of the Rules is replaced by the following:

Transmitting paper copies filed at local office

25. When a document is filed in paper copy at a local office, the Administrator shall

  • (a) transmit that paper copy, without delay, to the principal office;
  • (b) keep a certified copy of the document at the local office; and
  • (c) transmit a copy of the document to any other local office where a copy is required for the business of the Court.

7. (1) Subsection 26(1) of the Rules is replaced by the following:

Inspection of files

26. (1) If the necessary facilities are available, a person may, with supervision and without interfering with the business of the Court, inspect a Court file or annex that is available to the public.

(2) The portion of subsection 26(2) of the Rules before paragraph (a) is replaced by the following:

Removal or deletion of documents

(2) Nothing shall be removed or deleted from a Court file or annex except

8. The portion of subsection 26.1(2) of the Rules before paragraph (a) is replaced by the following:

Removal of exhibits from file

(2) Subject to subsection (4), exhibits put into evidence shall remain part of the annex to the Court file either

9. Subsection 66(2) of the Rules is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c):

  • (d) if there is consent to the electronic service of documents, the electronic address set out in Form 141A.

10. Subsection 70(3) of the Rules is replaced by the following:

Appendices

(3) If a memorandum of fact and law is filed in paper copy, the appendices may be bound separately from the memorandum.

11. Section 71 of the Rules is replaced by the following:

Sending documents for filing

71. (1) A document may be sent to the Registry for the purpose of filing by delivery, mail, fax or electronic transmission.

Sending by fax — prior consent required

(2) The Administrator’s consent is required before any of the following documents may be sent by fax:

  • (a) a motion record, application record, trial record, appeal book or book of authorities; and
  • (b) any other document that is longer than 20 pages.

Fax cover page

(3) A document that is sent by fax shall include a cover page that sets out the following information:

  • (a) the name, address and telephone number of the sender;
  • (b) the date and time of the transmission;
  • (c) the total number of pages being transmitted, including the cover page;
  • (d) a fax number at which the sender may receive documents; and
  • (e) the name and telephone number of the person that is to be contacted in the event of a transmission problem.

Sending by electronic transmission — document format

(4) A document that is sent by electronic transmission shall be in PDF (Portable Document Format) or any other format that is approved by the Court.

Originating documents sent by electronic transmission

(5) A person who sends an originating document by electronic transmission shall provide the Registry with paper copies for issuance or arrange for the Registry to prepare those copies.

Document submitted for filing

71.1 (1) A document that was sent to the Registry in accordance with rule 71 is submitted for filing when

  • (a) it is received and dated by the Registry; and
  • (b) if a fee for its issuance or filing is payable under Tariff A, the fee is paid.

Time of receipt — electronic transmission

(2) In the case of a document that was sent by electronic transmission to the Registry for filing, the time of its receipt by the Registry is that time in the Eastern time zone.

Submission on holiday

(3) A document that is submitted for filing on a holiday is deemed to have been submitted for filing on the next day that is not a holiday.

12. Subsection 72(3) of the Rules is repealed.

13. The Rules are amended by adding the following after rule 72:

Time of filing

72.1 Unless the Court directs otherwise, a document that is accepted for filing is deemed to have been filed at the time the document was submitted for filing.

Paper copies — fax or electronic transmission

72.2 A person who files a document by fax or electronic transmission shall, if required by the Court, provide the Registry with the same number of paper copies of the document as would have been required had the document been filed in paper copy.

Retention and provision of paper copy

72.3 A person who, by electronic transmission, files a document that is originally in paper copy and that bears a signature shall retain the paper copy of the document for the duration of any appeal and for 30 days after the expiry of all appeal periods and, if required by the Court, provide that paper copy to the Registry.

14. Subsection 133(1) of the Rules is replaced by the following:

Personal service of originating document on Crown

133. (1) Personal service of an originating document on the Crown, the Attorney General of Canada or any other Minister of the Crown is effected by filing the original and two paper copies of it at the Registry.

15. (1) The heading before rule 138 of the English version of the Rules is replaced by the following:

Other Forms of Service

(2) Rules 138 to 147 of the Rules are replaced by the following:

Personal service of originating documents

138. Unless otherwise provided in these Rules, personal service is required only for originating documents.

Manner of service — other documents

139. (1) If a document is not required to be served personally, service on a party is to be effected by

  • (a) personal service;
  • (b) leaving it at the party’s address for service;
  • (c) mailing it or delivering it by courier to the party’s address for service;
  • (d) transmitting it by fax to the party’s solicitor of record, or, if the party has no solicitor of record, to the party;
  • (e) transmitting it to the electronic address set out by the party in Form 141A; or
  • (f) any other means that the Court may direct.

Service on other parties

(2) Subject to subsection 36(3) and rule 145, the document shall be served on all other parties.

If no address for service

(3) If a party has no address for service at the time of service, the document may be served by leaving it at, or by sending it by registered mail or courier to,

  • (a) if the party is an individual, the party’s usual or last known address; and
  • (b) if the party is an unincorporated body, a group of persons or a corporation, the principal or last known address of the body, group or corporation.

If no known address

(4) If a party has no known address at the time of service, the document may be served by depositing it at the office of the Registry where the proceeding was commenced.

Service by fax

140. (1) The recipient’s consent is required before any of the following documents may be served by fax:

  • (a) a motion record, application record, trial record, appeal book or book of authorities; and
  • (b) any other document that is longer than 20 pages.

Fax cover page

(2) A document that is served by fax shall include a cover page that sets out the following information:

  • (a) the name, address and telephone number of the sender;
  • (b) the name of the person on whom the document is being served;
  • (c) the date and time of the transmission;
  • (d) the total number of pages being transmitted, including the cover page;
  • (e) a fax number at which the sender may receive documents; and
  • (f) the name and telephone number of the person that is to be contacted in the event of a transmission problem.

Consent to electronic service

141. (1) A party consents to the electronic service of documents by serving and filing a notice of consent in Form 141A.

When consent is effective

(2) The consent is effective on the day on which the notice is served.

Withdrawal of consent

(3) A party withdraws their consent by serving and filing a notice of withdrawal of consent in Form 141B.

When withdrawal is effective

(4) The withdrawal of consent is effective on the day on which the notice is served.

Prohibition

(5) A party shall not serve a document by electronic service prior to being served with the recipient’s notice of consent or after the withdrawal of that consent.

General

When service may be effected

142. Service of a document under these Rules may be effected at any time.

Effective date — evening or holiday service

143. (1) Service of a document, other than an originating document or a warrant, on a holiday or after 5:00 p.m. at the recipient’s local time is effective on the next day that is not a holiday.

Effective date — ordinary mail

(2) Service of a document by ordinary mail is effective on the 10th day after the day on which it is mailed.

Effective date — registered mail or courier

(3) Service of a document by registered mail or courier is effective on the day of delivery that is indicated on the post office or courier delivery receipt, as the case may be.

Filing before service effective

144. A document that is served by ordinary mail may be filed before the day on which its service is effective.

When no further service required

145. Subject to subsection 207(2) or unless the Court orders otherwise, a party who has been served with an originating document is not required to be served with any further documents in the proceeding prior to final judgment if

  • (a) the party has not filed a notice of appearance or a defence within the time set out in these Rules; or
  • (b) the party has no address for service and has not served and filed a notice of consent to electronic service in Form 141A.

Proof of service

146. (1) Service of a document is proven by

  • (a) an affidavit of service in Form 146A or, if the service is effected in the Province of Quebec, a certificate of service of a sheriff, bailiff or other authorized person in accordance with the Code of Civil Procedure of that Province;
  • (b) if the document is not an originating document, a solicitor’s certificate of service in Form 146B;
  • (c) if the service is effected by leaving a copy of the document at a solicitor’s office, by an acknowledgement of service that is signed and dated by the solicitor or another person on behalf of the solicitor; or
  • (d) if the service is effected under rule 134, an acceptance of service that is signed and dated by the party’s solicitor.

Acknowledgement of service – signature

(2) If an acknowledgement of service under paragraph (1)(c) is signed by a person on behalf of a solicitor, the person shall sign his or her own name.

Validating service

147. If a document has been served in a manner that is not authorized by these Rules or by an order of the Court, the Court may validate the service if it is satisfied that the document came to the notice of the person to be served or that it would have come to that person’s notice except for the person’s avoidance of service.

16. Paragraph 149(1)(b) of the Rules is replaced by the following:

  • (b) three paper copies of a tender of payment into court in Form 149.

17. Subsection 222(1) of the Rules is replaced by the following:

Definition of “document”

222. (1) In rules 223 to 232 and 295, “document” includes an audio recording, a video recording, a film, a photograph, a chart, a graph, a map, a plan, a survey and a book of account, as well as data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device.

18. Subsection 309(1) of the Rules is replaced by the following:

Applicant’s record

309. (1) An applicant shall serve and file the applicant’s record within 20 days after the day on which the parties’ cross-examinations are completed or within 20 days after the day on which the time for those cross-examinations is expired, whichever day is earlier.

Number of copies

(1.1) The applicant shall file

  • (a) if the application is brought in the Federal Court, an electronic copy of or three paper copies of the record; and
  • (b) if the application is brought in the Federal Court of Appeal, an electronic copy of or five paper copies of the record.

19. Subsection 310(1) of the Rules is replaced by the following:

Respondent’s record

310. (1) A respondent to an application shall, within 20 days after service of the applicant’s record, serve and file the respondent’s record.

Number of copies

(1.1) The respondent shall file

  • (a) if the application is brought in the Federal Court, an electronic copy of or three paper copies of the record; and
  • (b) if the application is brought in the Federal Court of Appeal, an electronic copy of or five paper copies of the record.

20. Subsection 343(1) of the Rules is replaced by the following:

Agreement re appeal book

343. (1) Within 30 days after the filing of a notice of appeal, the parties shall agree in writing as to the documents, exhibits and transcripts to be included in the appeal book and shall file a copy of that agreement.

21. (1) The portion of subsection 344(1) of the Rules before paragraph (a) is replaced by the following:

Content of appeal book

344. (1) An appeal book shall contain, on consecutively numbered pages and in the following order,

(2) Rule 344 of the Rules is amended by adding the following after subsection (1):

Colour of cover

(1.1) An appeal book that is filed in paper copy shall have a grey cover.

22. Rule 345 of the Rules is replaced by the following:

Appeal book

345. (1) An appellant shall serve and file the appeal book within 30 days after the day on which a copy of an agreement under subsection 343(1) is filed or an order under subsection 343(3) is obtained.

Number of copies

(2) The appellant shall file

  • (a) if the appeal is brought in the Federal Court, an electronic copy of or three paper copies of the book; and
  • (b) if the appeal is brought in the Federal Court of Appeal, an electronic copy of or five paper copies of the book.

23. Subsection 346(4) of the Rules is replaced by the following:

Colour of memorandum

(4) A memorandum of fact and law that is in paper copy shall have

  • (a) in the case of the appellant’s memorandum, a beige cover;
  • (b) in the case of the respondent’s memorandum, a green cover; and
  • (c) in the case of an intervener’s memorandum, a blue cover.

24. (1) Paragraphs 348(1)(a) and (b) of the Rules are replaced by the following:

  • (a) if the appeal is brought in the Federal Court, an electronic copy of or three paper copies of a joint book of statutes, regulations and authorities; and
  • (b) if the appeal is brought in the Federal Court of Appeal, an electronic copy of or five paper copies of a joint book of statutes, regulations and authorities.

(2) The portion of subsection 348(4) of the Rules before paragraph (a) is replaced by the following:

Colour of cover

(4) A book of statutes, regulations and authorities that is in paper copy shall have

(3) Paragraphs 348(4)(a) and (b) of the English version of the Rules are replaced by the following:

  • (a) if the book is filed jointly, a burgundy cover; and
  • (b) if the book is filed separately, a cover that is the same colour as the filing party’s memorandum of fact and law.

25. Subsection 353(1) of the Rules is replaced by the following:

Motion record

353. (1) Unless the Court orders otherwise, a party bringing a motion for leave to appeal shall serve the motion record and file an electronic copy of or three paper copies of that record.

26. Rules 354 and 355 of the Rules are replaced by the following:

Respondent’s memorandum of fact and law

354. Unless the Court orders otherwise, a respondent to a motion for leave to appeal shall serve a memorandum of fact and law and any supporting affidavits and file an electronic copy of or three paper copies of each of them no later than 20 days after the day on which the motion record is served.

Reply

355. Unless the Court orders otherwise, a party bringing a motion for leave to appeal shall serve any reply to the respondent’s memorandum of fact and law and file an electronic copy of or three paper copies of the reply no later than 10 days after the day on which it is served.

27. Subsection 364(1) of the Rules is replaced by the following:

Motion record

364. (1) Unless the Court orders otherwise, a person bringing a motion shall serve a motion record and file an electronic copy of or three paper copies of that record.

28. Subsection 365(1) of the Rules is replaced by the following:

Respondent’s motion record

365. (1) Subject to subsections 213(4) and 369(2), a respondent to a motion shall serve a respondent’s motion record and file an electronic copy of or three paper copies of the record no later than 2:00 p.m. on the day that is two days before the day fixed for the hearing of the motion.

29. Form 71 of the Rules is repealed.

30. Forms 140 and 146A of the Rules are replaced by the following:

FORM 141A
Rule 141

NOTICE OF CONSENT TO ELECTRONIC SERVICE

(General Heading — Use Form 66)

NOTICE OF CONSENT TO ELECTRONIC SERVICE

The plaintiff (or as the case may be) consents to the electronic service of all documents in this action (or as the case may be) that are not required to be served personally.

Electronic service of the documents may be made to the following electronic address: (Set out the electronic address to which documents may be served.)

(Date)

_________________________
(Signature of solicitor or party filing notice)

(Name, address, telephone and fax
number and electronic address of
solicitor or party filing notice)

FORM 141B
Rule 141

WITHDRAWAL OF CONSENT TO ELECTRONIC SERVICE

(General Heading — Use Form 66)

WITHDRAWAL OF CONSENT TO ELECTRONIC SERVICE

The plaintiff (or as the case may be) withdraws the consent to the electronic service of documents in this action (or as the case may be) given in the Notice of Consent to Electronic Service, dated (date of Notice).

(Date)

_________________________
(Signature of solicitor or party filing notice)

(Name, address, telephone and fax
number and electronic address of
solicitor or party filing notice)

FORM 146A
Rule 146

AFFIDAVIT OF SERVICE

(General Heading — Use Form 66)

AFFIDAVIT OF SERVICE

I, (full name and occupation of deponent), of the (City, Town, etc.) of (name) in the (County, Regional Municipality, etc.) of (name), SWEAR (or AFFIRM) THAT:

(for personal service on an individual, corporation, etc.)

  1. On (date), at (time), I served (identify person served) with (identify document served) by leaving a copy with that person at (address where service was made).
    • (Where the Federal Courts Rules provide for personal service on a corporation,etc., by leaving a copy of the document with another person, substitute:)
    • by leaving a copy with (identify and give the position or function of the person served) at (address where service was made).
  2. I was able to identify the person by means of (state the means by which the person’s identity was ascertained).

(for personal service by leaving a copy with an adult person in the same household)

1. I served (identify person served) with (identify document served) by leaving a copy on (date), at (time) with a person (insert name if known) who appeared to be an adult member of the same household in which (identify person served) is residing at (address where service was made), and by sending a copy by regular mail (or registered mail) on (date) to (identify person served) at the same address.

2. I ascertained that the person was an adult member of the same household by means of (state how it was ascertained that the person was an adult member of the same household).

(for personal service by mail)

1. On (date), at (time), I sent to (identify person served) by registered/ordinary mail a copy of (identify document served).

2. On (date), I received the attached acknowledgement of receipt card/post office receipt bearing a signature that purports to be the signature of (identify person).

(for service by mail on solicitor)

1. I served (identify party served) with (identify document served) by sending a copy by registered/ordinary mail on (date) to (name of solicitor), solicitor for the (identify party).

2. (If service is by registered mail) The day of delivery indicated on the post office delivery receipt is (date).

(for service by fax on solicitor)

I served (identify party served) with (identify document served) by sending a copy by fax on (date) to (name of solicitor), solicitor for the (identify party), at (fax number).

(for electronic service on solicitor)

1. I served (identify party served) with (identify document served) by sending a copy by electronic service on (date) to (name of solicitor), solicitor for the (identify party), at (electronic address).

2. I confirm that (identify party served) has acknowledged that the document was received.

(for service by courier on solicitor)

1. I served (identify party served) with (identify document served) by sending a copy by (name of courier), a courier, to (name of solicitor), solicitor for the (identify party), at (full address of place for delivery).

2. The day of delivery indicated on the courier delivery receipt is (date).

(for service on party acting in person)

1. I served (identify party served) with (identify document served) by sending a copy by (identify method of service) on (date) to (full mailing address, fax number or electronic address); (or if there is no known address for service, fax number or electronic address) the last known address of (identify party).

2. (If service is by courier) The day of delivery indicated on the courier delivery receipt is (date).

3. (If service is by electronic service) I confirm that (identify party served) has acknowledged that the document was received.

Sworn (or Affirmed) before me at the (City, Town, etc.) of (name) in the (County, Regional Municipality, etc.) of (name) on (date).

_________________________
Commissioner for Taking Affidavits

(or as the case may be)

____________________
(Signature of Deponent)

31. Form 171I of the Rules is replaced by the following:

FORM 171I
Rule 171

THIRD PARTY CLAIM

AGAINST PERSON NOT ALREADY PARTY TO THE ACTION

(Court File No.)

FEDERAL COURT

BETWEEN:

(Name)

Plaintiff

and

(Court seal)

(Name)

Defendant

and

(Name)

Third Party

(Refer to the requirements of Rules 193 and 194 of the Federal Courts Rules to determine whether third party claim may be issued without first obtaining leave of the Court.)

THIRD PARTY CLAIM

TO THE THIRD PARTY:

A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by way of a third party claim in an action in this Court.

The action was commenced by the plaintiff against the defendant for the relief claimed in the statement of claim served with this third party claim. The defendant has defended the action on the grounds set out in the statement of defence served with this third party claim. The defendant’s claim against you is set out in the following pages.

IF YOU WISH TO DEFEND THIS THIRD PARTY CLAIM, you or a solicitor acting for you are required to prepare a statement of defence in Form 171J prescribed by the Federal Courts Rules, serve it on the solicitors for the other parties, or, where a party does not have a solicitor, serve it on the party, and file it, with proof of service, at a local office of this Court, WITHIN 30 DAYS after the day on which this third party claim is served on you, if you are served within Canada.

If you are served in the United States of America, the period for serving and filing your statement of defence is 40 days. If you are served outside Canada and the United States of America, the period for serving and filing your statement of defence is 60 days.

YOU MAY ALSO DEFEND the action by the plaintiff against the defendant by serving and filing a statement of defence in Form 171B prescribed by the Federal Courts Rules within the time for serving and filing your third party defence.

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 third party)

(Separate page)

CLAIM

1. The defendant claims against the third party: (State here precise relief claimed.)

(Then set out in consecutively numbered paragraphs each allegation of material fact relied on to substantiate the third party claim.)

(Date)

__________________
(Signature of solicitor or defendant)

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

32. Form 316.2 of the Rules is replaced by the following:

FORM 316.2
Rule 316.2

NOTICE OF SUMMARY APPLICATION

(General Heading — Use Form 66)

(Court seal)

NOTICE OF SUMMARY APPLICATION

TO THE RESPONDENT:

A SUMMARY APPLICATION HAS BEEN COMMENCED by the applicant under section 231.7 of the Income Tax Act. The relief claimed by the applicant appears on the following page.

THIS APPLICATION will be heard by the Court on (day), (date), at (time) or as soon after that time as the application can be heard, at (place).

IF YOU WISH TO OPPOSE THIS APPLICATION, you or a solicitor acting for you must serve a respondent’s record and file three copies of it not later than 2 p.m. on the day that is two days before the day on which the application will be heard.

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 OPPOSE THIS APPLICATION, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU.

(Date)

Issued by: __________________
(Registry Officer)

Address of local office: ____________________

TO: (Name and address of each respondent)

(Name and address of every other person required to be served)

(Separate page)

SUMMARY APPLICATION

The applicant makes application for: (State the precise relief sought.)

The grounds for the application are: (State the grounds to be argued, including any statutory provision or rule relied on.)

This application will be supported by the following material: (List the supporting affidavits, including documentary exhibits, and the portions of transcripts to be used.)

(Date)

_____________________________
(Signature of solicitor or applicant)

(Name, address, telephone and fax
number and electronic address of
solicitor or applicant)

33. Subsection 1(3) of Tariff A to the Rules is replaced by the following:

Fees payable for paper copies

(3) A person requesting paper copies of documents from the Registry shall pay $0.40 per page.

Fees payable for digital recording

(4) A person requesting a digital recording of all or part of any day of a proceeding from the Registry shall pay $15 per recording.

COMING INTO FORCE

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

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Rules.)

Issues

The Federal Courts Rules Committee has determined that the administration of the Courts and access to justice would be better served by modernizing the Federal Courts Rules to facilitate the use of information technologies.

Background

In May 2011, the Subcommittee on Technology, a subcommittee of the Federal Courts Rules Committee, issued a discussion paper entitled Information Technology and the Federal Courts Rules, and by way of initial consultation posted it on the Web sites of both the Federal Court of Appeal and the Federal Court and circulated it to interested members of the Bar and the public. The discussion paper outlined a number of possible revisions to the Federal Courts Rules that would remove obstacles to the use of technology before the Courts such as providing the opportunity to file and serve documents electronically. At that time, comments were received from the Intellectual Property Institute of Canada. Those comments were considered and discussed by the Subcommittee on Technology.

Proposed amendments were subsequently drafted, and further discussions took place within the Subcommittee, as well as at meetings of the plenary Federal Courts Rules Committee in December 2012 and May 2013.

The Federal Courts Rules Committee then approved the proposed Rules Amending the Federal Courts Rules at its plenary meeting on December 13, 2013.

The Rules Amending the Federal Courts Rules were prepublished on January 25, 2014, in the Canada Gazette, Part I, for a 60-day comment period, in accordance with paragraph 46(4) of the Federal Courts Act.

Following this prepublication consultation period, comments were received from the Advocates’ Society and from the Intellectual Property Institute of Canada (IPIC) requesting that precisions be added to five rules. Each recommendation was presented to the Federal Courts Rules Committee and addressed by modifications to the Rules except for two recommendations that were not implemented, as instructed by the Rules Committee, and as outlined below in the “Description” section.

Objectives

The proposed amendments to the Rules seek to remove obstacles to the use of information technologies without substantially altering the effect of the Rules. Furthermore, the amendments include the flexibility to maintain an official Court record that could include both paper and electronic documents. The Courts also foresee giving the parties the option of using electronic means of communication with the Registry, including an e-filing portal on the courts’ Web site.

Description

To meet the above-mentioned objectives, the Federal Courts Rules Committee proposes various amendments to the Rules, as follows:

  1. Repeal references limiting certain documents to paper documents only;
  2. Allow electronic service of documents;
  3. Allow electronic filing of documents; and
  4. Clarify that the fees under Tariff A apply to paper copies.

Other amendments include the repeal of the definition of “business day” in Rule 2, because the expression is used only once in the Rules and once in the Forms, and the addition of a retention schedule for Court documents.

The comments received following prepublication were addressed as follows:

Issue 1: Application of the proposed amendments to the Rules

A concern was raised that the changes to the Rules appear only to apply to non-immigration matters in the Federal Courts. The comment suggested that the Rules should be changed to allow electronic filing in immigration matters.

Response: Instructions had already been given to the drafters to conduct a review of the Immigration and Refugee Protection Rules and provide draft amendments consistent with the amendments to the Federal Courts Rules. The group who raised the concern was advised that the work by which their concern would be addressed was already underway.

Issue 2: Proposed amendment to Rule 71.1(2)

This Rule stipulates that the time of receipt of a document sent to the Registry by electronic transmission is deemed to be that time in the Eastern time zone. The Advocates’ Society was concerned that this Rule will prejudice parties or parties whose counsel are based in time zones west of the Eastern time zone, particularly for matters that are brought on an urgent basis. The Society believes that the time zone that governs the time of receipt of a document sent to the Registry should be the Pacific time zone.

Response: The Subcommittee and Committee had already discussed this at length and decided to maintain the Eastern time zone.

Issue 3: Proposed amendment to Rule 72.3

It was suggested that this revision requires some clarification. The Rule requires that the original paper version of a document bearing a signature be retained for 30 days after all appeal periods expire. This appears to permit the destruction of the document 30 days after the appeal period has expired even if an appeal has actually been filed. It would be helpful to have clarity on whether it is still necessary, in the event an appeal has been filed, to retain a document bearing a signature until all proceedings (including all appeals) have ended or until the time specified has passed.

Response: Rule 72.3 was amended to indicate that the original paper version of the document needs to be retained for the duration of any appeal.

Issue 4: Proposed amendment to Rule 138

A comment was received with the view that this Rule should be amended to permit service of an originating document other than by personal service on the consent of the parties.

Response: the Rules Committee decided not to pursue this change at the moment given the other rules adjustments related to originating documents and personal service that this change would require. Additionally, existing Rule 136 already provides that the Court may order substitutional service or dispense with service where personal service cannot practicably be effected. Furthermore, existing Rule 147 provides another possible approach, allowing the Court to validate service if it is satisfied that the document came to the notice of the person to be served, even if the document is served in a manner that is not otherwise authorized by the Rules.

Issue 5: Proposed amendment to Rule 141(5)

A suggestion was made that electronic service of a document should be allowed once verbal consent is received from the party, even if formal written consent has not been received. While parties may provide their verbal consent to accept electronic service, the Society is conscious that parties are not always prompt in serving their formal consents, and time limits may run out if a document is not served in time because an opposing party is awaiting such formal consent.

Response: The Rules Committee considered this proposed change during its Plenary Rules Committee meeting on May 30, 2014, and decided not to remove the requirement for formal written consent. The service of the consent form should not be viewed as a constraint on the parties. A form was created to formalize the consent, and given that the parties have to file and serve it, they can easily do so at the beginning of the procedures. Moreover, in an urgent situation where a party is concerned about missing a deadline for service and filing of a document, existing Rule 147 allows the Court to validate service if it is satisfied that the document came to the notice of the person to be served, even if the document is served in a manner that is not otherwise authorized by the Rules.

Issue 6: Definition of electronic documents

A comment was made with respect to the proposed amendment to Rule 222, which is being amended to delete “computer diskette and any other device on which information is recorded or stored” from the end thereof. The Regulatory Impact Analysis Statement in Part I of the Canada Gazette indicated that “the proposed amendment to Rule 222 would eliminate reference to ‘computer diskette,’ a device no longer used in practice before the Court, and would focus on the type of documents, instead of the type of device on which information is stored.” However, the proposed amendment has deleted all express references to electronic information storage devices from the definition of “document.” Therefore, there was a concern that the proposed amendment could be interpreted as excluding electronic documents from the scope of Rule 222.

Response: Rule 222 has been amended to include a reference to electronic documents consistent with the definition of “electronic document” in the Canada Evidence Act.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative costs to businesses.

Small business lens

The small business lens does not apply to this proposal, as there are no costs to small business.

Consultation

The proposed changes have been subject to extensive consultation over the last three years. A discussion paper was issued in May 2011 and published on the Web sites of both the Federal Court of Appeal and the Federal Court and circulated to members of the legal profession and anyone who subscribed to the distribution list for communications from the courts through the Web site.

Comments received from members of the Bar were taken into consideration by the Rules Committee in the drafting of the amendments. The 60-day prepublication of the proposed amendments on January 25, 2014, provided another opportunity for the public and members of the profession to provide feedback. Moreover, the proposed amendments were also shared with the members of the various liaison committees between members of the Courts and the Bar. It is also noted that the Rules Committee itself has Bar representatives from key legal practice areas.

There has been unanimous acceptance that amendments to the Federal Courts Rules are important to remove obstacles to the use of modern technology. The few comments received were generally to request additional clarity, and the Rules Committee has taken into consideration and implemented the requested changes accordingly for the most part, ensuring the greatest access to justice and supporting the underlying principle set out in Rule 3 that the “rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.”

Rationale

There is little to no risk associated with implementing the proposed amendments to the Federal Courts Rules, since the changes are perceived to facilitate the procedures and are meant to do so.

The expected benefits of the proposed amendments are more efficient court procedures, reduced litigation costs, and improved access to justice so as to secure the just, most expeditious and least expensive determination of the proceedings before the Federal Court of Appeal and the Federal Court.

Implementation, enforcement and service standards

The amended Rules will be incorporated into the Federal Courts Rules and will be implemented and enforced in the same manner as the other rules. Practice directions will be issued as necessary according to instructions of the Chief Justices to provide additional clarification on the implementation of the changes.

Contact

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