On April 2, 2024, the Rules Committee of the itinerant Ottawa-based national trial court and intermediate appellate court rolled out an eight-page consultation paper that proposes some significant changes and also solicits suggestions from the bar and the public on how to modernize and improve the courts’ existing joint rules, which were last overhauled in 2012.
Justice Simon Fothergill
“Essentially the overarching purpose of the rules is to secure the most just, expeditious and least expensive resolution of the dispute, so that is the informing principle for this review,” he said. “We want to make the rules easier to use, more comprehensible and efficient. But we think the rules are actually pretty good at the moment.”
Justice Fothergill chairs a subcommittee composed of six Federal Court of Appeal and Federal Court judges and associate judges tasked with conducting the latest “global review” of the Federal Courts Rules. He tentatively estimated that amendments to the rules could be in place in spring 2025. The subcommittee aims to recommend changes in the fall to the courts’ larger Rules Committee for consideration, followed by the Rules Committee proposing the regulatory amendments.
Lawyers and the public are asked to give feedback to the subcommittee’s proposals and make “any other proposals for changes to the rules you may wish to advance," by July 2, 2024, ideally via this online form.
The Canadian Bar Association (CBA) welcomed the courts’ reform initiative and public consultation.
Jordana Sanft, Lenczner Slaght LLP
The Toronto intellectual property litigator said the subcommittee’s proposal to make electronic service the default and to require electronic filing in all but exceptional cases, rather than requiring paper copies, reflects what IP practitioners are commonly doing now, by mutual agreement.
“In today’s day and age, not having electronic be the default is such a waste of resources and time, and it’s bad for the environment,” Sanft remarked.
Speaking for herself, she said that although making electronic service and filing the presumptive norm could be a hurdle for some self-represented litigants, who may not have access to computers and the Internet, “really today, most people do, and the libraries do, and there’s a lot of public resources that make that available. I had a slight concern that there might be an access-to-justice issue, but I don’t actually think there is,” she advised. “I think overall, it’s more efficient, and it does increase accessibility. It saves time. It saves money. It saves paper. It saves resources at the court. It’s absolutely a plus, all around.”
More controversial is the subcommittee’s proposal that the present rules governing class actions in the federal courts be amended to “reflect procedural changes in the provinces,” notably in Ontario, where certification is permitted only if the common questions of fact or law predominate over questions affecting only individual class members.
The subcommittee also requests input on unspecified potential amendments to “address matters pertaining to third-party funding agreements” and costs in class actions.
Changing the more liberal certification test in Federal Court “could have the effect of making class actions harder to certify because, at the moment in the federal courts, you don’t have to show that the common issues predominate over individual issues,” Justice Fothergill acknowledged. “You can just say that ‘there are common issues,’ and therefore it is something that can work as a class action.”
In practice, however, “I'm not sure the distinction is that great because we do look at whether the common issues predominate over the individual issues, as part of the ‘preferential procedure’ question,” the judge added. “So in the jurisprudence, and in the way that we administer the rules, I’m not sure this would, in practice, make a big difference. But I can see why there might be a conversation to be had about that.”
Kirk Baert, Koskie Minsky LLP
We “don’t have a problem with corporations and governments in Canada being forced to face too much litigation,” Baert explained. “We have an access-to-justice problem in this country. The Ontario committee, who exhaustively studied the issues, didn’t propose a change in the certification test, but the Ford government did it anyway and copied the U.S. test. It’s a solution in search of a problem.”
In respect of access to justice, Sanft said she agrees, in principle, with the subcommittee’s proposal to increase the monetary limit for simplified actions above the existing $100,000 limit on claims exclusively for monetary relief and $50,000 for in rem actions claiming monetary relief — subject to hearing more detail as the consultation paper does not propose a specific amount.
She had some qualms, however, about the subcommittee’s proposal to expand the authority of the Federal Court’s associate judges (formerly called prothonotaries) over motions for injunctions, consent judgments and summary judgments, as well as for holding a person in contempt and over motions to vary a judge’s order in certain circumstances, such as on consent or unopposed or to extend a previously ordered date.
“I would say it makes total sense for associate judges to be able to deal with judgments on consent and hold the person in contempt and to vary an order of a judge in certain circumstances, such as on consent or where unopposed,” Sanft commented. “I think it will relieve judges from unnecessary burdens. I think often the associate judges are better informed on those kinds of issues.”
But she added, “I don’t know that we, in all cases, want to have associate judges deal with injunctions, for example. I think it may be that, in some cases, that’s appropriate. I don’t know that that should be a default.”
Calling injunctions “really substantive, pressing” court orders, Sanft queried how appeal periods would be impacted if associate judges were to get authority in certain kinds of cases or a general authority, to issue injunctions. “Is 10 days sufficient? Or in that circumstance, would we need to extend the time to 30 days to deal with that decision?” she asked. “And there’s sort of pluses and minuses to that.”
Because of an injunction’s significance, pulling together an appeal in respect of such a decision could need more than 10 days, as an example, “and so you’d want the 30 days,” she suggested.
However, when dealing with a pleading amendment issue, or more procedural or minor issues, “I don’t know that 30 days is beneficial,” Sanft said. “It just extends out the time, and you’re trying to move forward with procedural efficiencies, and so extending that out to 30 days doesn’t help. And so, in my mind, those issues are related, and I think it depends, for me anyway, on what role and what decision the associate judges are making in terms of whether I think it’s helpful to extend the time for an appeal.”
Sanft was cautious about the consultation paper proposal to grant the federal courts’ registry “a limited discretionary power” to accept or refuse non-compliant or irregular documents, under reserve of objection by a party and the courts. Currently, the courts’ administrator must refer such documents to a judge or associate judge, who may direct the registry to accept or reject a document or accept it, subject to conditions.
That “sounds good, but I actually think it’s going to cause a lot of problems,” Sanft remarked, noting that lawyers have told her of the frustration they experience at times in Ontario Superior Court when well-meaning registry officers nevertheless reject documents due to small errors and for formalistic reasons — which can lead to the loss of a court date.
“I think often things are remedied faster in the Federal Court and so, again, it may not be a problem, but that’s why I think on this one, the devil is in the details [of] how this is going to happen,” Sanft suggested. “I think if it happens, we need to actually understand what’s going to pan out. It’s not that I don’t want to give the registrar the authority and make things smoother. I think they want things to be smoother. My concern is that it ends up going the other way, unintentionally, so I want to make sure that there’s the right balance.”
Under the rubric of amending the rules to reflect jurisprudential developments, the courts are also soliciting input as to whether the rules should be amended on representation, including whether “to permit representation by a non-lawyer if the interests of justice so require.”
Law360 Canada asked if this question is simply about making it clear that the court can permit non-lawyer representation in some circumstances or whether it’s about enabling non-lawyers, such as immigration consultants, to file documents and appear before the court on behalf of litigants.
Justice Fothergill responded by saying, “The difficulty that we have right now is that we have ‘disguised’ non-lawyers — we have self-represented litigants ... where the filing is actually done by someone else, whose identity isn’t disclosed, and it’s usually an immigration consultant. So, I think what we would see in the rules if we were to codify this is we would acknowledge the possibility of non-lawyers representing people, but we will place some constraints on to what extent they can do that. And I think a really critical point will be that their identity needs to be disclosed, so we know who is actually behind the submissions that are being made to the court.”
Asked whether it’s possible the subcommittee could recommend that the rules be updated to permit non-lawyers, such as immigration consultants, to make oral representations to the court in addition to written representations, Justice Fothergill answered, “Well, this is a genuine consultation.”
“There may well be” some pushback from the bar, he acknowledged, “and so we’ll have to hear the different perspectives, and then ultimately make a recommendation to the Rules Committee.”
Among the dozens of questions raised in the subcommittee’s consultation paper is whether the rules should incorporate important elements of the courts’ practice directions in order to:
- more fully address the filing of confidential documents;
- explicitly allow, in specified circumstances, a moving party to seek leave, by way of letter, to be relieved from the requirement of bringing a formal motion;
- clarify the procedure for seeking an adjournment;
- reflect para. 74 of the Federal Court’s Amended Consolidated Practice Direction, which states that during the hearing of a motion, application or action, the parties should be prepared to inform the court as to whether they have agreed on the disposition and/or quantum of costs;
- require that condensed books, compendia and day books be filed on appeal or make explicit the Federal Court of Appeal’s authority to require that they be filed;
- address the use of compendia in the Federal Court; and
- provide that an outline of oral argument may be filed.
Photograph of Federal Court Justice Simon Fothergill: Balfour
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