Canada Gazette, Part I, Volume 157, Number 6: Rules Amending the Federal Courts Rules and the Federal Courts Citizenship, Immigration and Refugee Protection Rules
February 11, 2023
Statutory authorities
Federal Courts Act
Citizenship Act
Immigration and Refugee Protection Act
Sponsoring agency
Courts Administration Service
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Rules.)
Issues
There is a need to amend the Federal Courts Rules (“Rules”) and the Federal Courts Citizenship, Immigration and Refugee Protection Rules (“Immigration Rules”) to address the following issues:
- In the Rules, the Tariff B structure for calculation of costs awards is too complex, is missing some common procedural steps (which therefore cannot be submitted for reimbursement), and provides insufficient indemnification upon an award of costs by the Court. As a result, in many cases the Court does not refer the parties for a calculation of costs when issuing a costs Order, but instead awards costs on a “lump sum” basis, resulting in less predictability for litigants regarding costs awards.
- In the Rules, there is an inconsistency in Tariff A regarding the applicable fee for a request to the Registry to prepare a copy of a Court file on a portable electronic storage device.
- The Rules and the Immigration Rules still refer to certain judicial officers as “prothonotary,” a title which was recently changed to “associate judge” in the Federal Courts Act, resulting in an inconsistency.
Background
The Rules Committee of the Federal Court of Appeal and the Federal Court (the “Rules Committee”) is a statutory committee created under section 45.1 of the Federal Courts Act (the “Act”) to make, amend, or revoke rules, subject to the approval of the Governor in Council. The Rules Committee includes the Chief Justice and three other judges of the Federal Court of Appeal; the Chief Justice, five other judges and one associate judge of the Federal Court; the Chief Administrator of the Courts Administration Service; five members from the bar; and the Attorney General of Canada or a representative thereof. These committee members all consult with their respective stakeholder groups, whether the private or public bar or the courts, regarding proposals for rule amendments.
Proposed amendments to Tariff B (costs awards)
Even if the Court decides in favour of a party on the merits of the case, there is no automatic entitlement for that party to recover any of its litigation expenses (sometimes referred to as “costs”) from the opposing party. Costs are always within the discretion of the Court, pursuant to Rule 400(1): “The Court shall have full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid.” The Rules provide, at Tariff B, a fee structure that may be used, at the discretion of the Court, if it issues an Order that one party is entitled to recovery of some of its litigation expenses, which are then payable by the opposing party. If the Court issues an order granting a party the right to recover its litigation costs according to one of the five columns (as specified by the Court) of the tariff, that party then submits a bill of costs to be assessed by a taxation officer. See Filing a Bill of Costs. For each assessable item, the applicable column sets out a range of units that can be claimed, with Column I providing the lowest level of cost recovery and Column V, the highest. The value of one unit is set each year based on a formula in the Rules (Notice - unit B). For many years, it has been recognized that cost awards that are based on Tariff B fall far short of the actual litigation costs incurred by parties, particularly in certain commercial or business practice areas, such as intellectual property or maritime law. As a result, there has been an increasing trend, particularly in these commercial cases, for the Court not to rely on Tariff B when issuing a costs award, but instead to issue a “lump sum” award.
In October 2011, the Rules Committee struck a subcommittee to conduct a global review of the Rules. Different constituencies and their perspectives were represented, that is the Courts, court personnel, and lawyers specializing in different areas of both private practice and government practice. Through the Subcommittee’s consultative process, other constituencies and their perspectives were given a voice as well. See Discussion Paper – Global Review of the Federal Courts Rules (PDF), May 2012; and, Discussion Paper – Global Review of the Federal Courts Rules, October 14, 2011.
The Subcommittee tendered its final report on October 16, 2012. See Report of the Subcommittee on Global Review of the Federal Courts Rules (PDF).
Among other things, the Report recommended that the provisions in the Rules relating to costs “should be amended in order to make it more likely that a higher quantum of costs will be awarded when warranted, to provide a greater incentive for pre-trial resolution” (Recommendation 4(b)).
In November 2014, the Rules Committee struck a new Subcommittee to examine the current approach to costs awards, survey other jurisdictions, and make specific recommendations for amendments. In October 2015, the Rules Committee published a discussion paper that was shared throughout the legal community to invite feedback on the research conducted by the Subcommittee. See Discussion Paper (Review of the Rules on Costs) (PDF), October 5, 2015.
The Subcommittee reviewed the extensive public feedback and developed policy proposals, which were then discussed at the June 3, 2016, meeting of the Rules Committee, which agreed to the following: simplify Tariff B (three columns instead of five); add extra line items that are missing in the current tariff; increase the tariff by approximately 25%.
The Subcommittee then developed a detailed proposal for the new tariff structure for review at the November 29, 2019, meeting of the Rules Committee, which endorsed the draft structure for the purposes of consultation with members of the wider legal community in 2020. Following the review of the extensive comments received, the Subcommittee developed a draft amendment package that was approved by the Rules Committee at its meeting of June 17, 2022.
Proposed amendments to Tariff A (Court fees)
During the drafting process, a minor amendment to Tariff A of the Rules was proposed to establish a fee for situations in which a request was made for a copy of a Court document to be prepared by the Registry on a portable electronic storage device, and to make this consistent with the existing fee for a copy of a digital audio recording.
Statutory change of judicial title (from “prothonotary” to “associate judge”)
Bill C-19 (the Budget Implementation Act, 2022, No. 1) replaced references to “prothonotary” (a judicial officer of the Federal Court) with “associate judge” in legislation, including the Federal Courts Act and the Judges Act. The responsibilities and duties of the position did not change. This came in force on September 23, 2022, per P.C. 2022-1013. The word “prothonotary” appears throughout the Rules and the Immigration Rules. The proposed rule amendments would change the term “prothonotary” to “associate judge” so as to be consistent with the legislation.
Objective
Proposed amendments to Tariff A (Court fees)
Tariff A currently provides that a person requesting a digital recording of all or part of any day of a proceeding from the Registry shall pay $15 per recording. It is proposed that this tariff be amended to apply only if the person requests a copy on a portable electronic storage device (i.e. the tariff would not apply for a copy that can be shared remotely via email or the Cloud).
It is also proposed that Tariff A be amended so that a person requesting a copy of a Court document on a portable electronic storage device be required to pay the same tariff. At present, members of the public must pay a tariff of $0.40 per page for print copies, but there is no tariff for electronic documents that are provided via email or the Cloud. The proposed amendment — to add a $15 tariff for requests for electronic Court documents on a portable storage device — is proposed simply for consistency with the proposed amendment to the tariff for digital recordings.
Proposed amendments to Tariff B (costs awards)
The 2012 policy work of the Rules Committee lead to a recommendation that the Rules relating to costs “be amended in order to make it more likely that a higher quantum of costs will be awarded when warranted, to provide a greater incentive for pre-trial resolution” (per Report of the Subcommittee on Global Review of the Federal Courts Rules (PDF)).
The Rules Committee concluded that the balance (between predictability and discretion) should be shifted further towards predictability and that the present tariff regime should be maintained. The closer the tariff gets to a full indemnification, the more likely it will be followed by judges and the more predictable costs will be. The tariff is considered particularly inadequate in intellectual property litigation, but also in admiralty / maritime law proceedings, and so in many cases the Court does not rely on the tariff but instead awards a lump sum amount. The Rules Committee concluded that Tariff B should be retained but simplified; several new assessable items, which form part of regular litigation practice, should be added; and overall, cost awards under the tariff should be raised by approximately 25%. The Court may then award tariff-based costs that would more closely match a lump sum award, providing a more consistent and predictable regime. However, the Court retains full discretionary power over whether to order costs using the tariff or a lump sum.
Proposed amendments to judicial title (from “prothonotary” to “associate judge”)
These changes are required for consistency with recent statutory amendments.
Description
The proposed amendments to the Rules and the Immigration Rules are set out below.
Proposed amendments to Tariff A (Court fees) to the Rules
Subsection 1(4) of Tariff A (see the Rules) would be amended so that a person who requests a copy of a digital recording of a hearing would pay the tariff only if requesting that the Registry prepare a copy on a portable electronic storage device. The tariff would no longer apply for a copy shared remotely via email or the Cloud.
Subsection 1(4) would also be amended so that a person requesting a copy of a Court document on a portable electronic storage device would be required to pay the same tariff. At present, there is a tariff of $0.40 per page only for print copies, pursuant to subsection 1(3) of the Rules, but there is still no tariff for electronic documents in any format.
Proposed amendments to Tariff B (costs awards) to the Rules
The table of services in Tariff B (see the Rules) would be amended as follows:
- by converting the table into four separate tables, with the assessable services tailored in each to be applicable only to a single type of proceeding (actions, applications, appeals, and motions);
- by reducing the applicable tables from five to three columns and avoiding overlap between the number of units allowable for each service from one column to the next;
- by increasing the number of units for each service in the range for each column; and
- by adding new assessable items which reflect current litigation practice but that are missing from the current table.
The current table has, for each assessable service, only a narrow range of units that are nearly all single digits (e.g. three to seven units), and with some ranges starting at zero unit. As a result, it is not feasible to increase a given range strictly by 25%. Although the proposed amendments to the tariff would result in overall increases by approximately 25% in assessed costs, these increases are not uniform and depend on the facts and circumstances of each case. In rare cases, applying the new tariff would not have any effect on the results of an assessment, and in other cases, the increase could be higher. As part of the restructuring and overall tariff increase, there is now also an option for fractional units to be assessed (subsection 2(2) of Tariff B to the Rules is therefore repealed), and for the calculation of the unit B value, the result is now to be rounded to the next higher amount (rather than the next lower amount) that is evenly divisible by 10.
A change is proposed to Rule 400(5) to refer to the “applicable table” rather than simply to the “table,” given that the new tariff structure includes a table for each proceeding type (actions, applications, appeals, and motions), rather than a single table covering all types. There is a corresponding change as well to subsection1(2) of Tariff B to make reference to the new tariff structure with multiple tables.
Further, with three rather than five columns in the new structure, the default column should be Column II. Accordingly, the phrase “column III” in Rule 407 should be amended to read “column I.”
Statutory change of title from “prothonotary” to “associate judge”
The title “prothonotary” is changed to “associate judge” throughout the Rules and the Immigration Rules.
Regulatory development
Consultation
In October 2015, the Rules Committee published a Discussion Paper (Review of the Rules on Costs) (PDF) that was shared throughout the legal community to invite feedback on the research conducted by the Subcommittee.
Comments were received from over a dozen individuals and organizations, including
- the Attorney General of Manitoba;
- the Intellectual Property Institute of Canada;
- the Comité consultatif en droit de l’immigration et de la citoyenneté du Barreau du Québec;
- the Advocates’ Society;
- the Public Interest Advocacy Centre (PIAC) / Manitoba Public Interest Law Centre;
- the Environmental Law Centre;
- the Department of Justice (Canada);
- the Canadian Bar Association; and
- the Canadian Maritime Law Association.
Following a review of the comments, the Rules Committee made policy decisions regarding the project, and the Subcommittee then developed a detailed proposal for the new tariff structure for review by the Rules Committee at its meeting on November 29, 2019. The Rules Committee endorsed the draft structure, to be circulated for further public consultation in 2020 to members of the Bench and Bar Liaison Committees of the Federal Court of Appeal and Federal Court. In response, extensive comments were received from the following organizations:
- the Intellectual Property Institute of Canada (IPIC);
- the Advocates’ Society;
- the Canadian Bar Association (National Intellectual Property Section);
- the Department of Justice (Canada); and
- Ecojustice.
These comments were then considered in the development of the draft amendments being proposed for pre-publication in the Canada Gazette, Part I.
Modern treaty obligations and Indigenous engagement and consultation
The amendments will have no impact on modern treaty obligations. The amendments are intended to improve the efficiency and consistency of the Rules and Immigration Rules with consideration to access to justice for all litigants in the Federal Court of Appeal and Federal Court, including litigants who are First Nations, Métis, or Inuit.
Instrument choice
Pursuant to section 46 of the Federal Courts Act, the rules established by the Rules Committee, and codified in the Rules and the Immigration Rules, regulate the practice and procedure in the Federal Court of Appeal and in the Federal Court. From time to time, the Chief Justices of the Federal Courts also enact practice directions to advise the profession on interpretation and to provide guidance on matters of practice that are not set out fully in the Rules and Immigration Rules. However, as between the Rules and Immigration Rules and practice directions, only the former are law. Furthermore, practice directions are not as visible and may be hard to find. For the current amendment proposal, it is therefore preferable to proceed by way of amendment to the Rules and the Immigration Rules. This instrument provides
- a comprehensive process of notice and consultation with the public;
- a procedure that has the force of law; and
- a procedure that is transparent and easy to find, given that it is integrated into the Rules and the Immigration Rules.
Regulatory analysis
Benefits and costs
There are limited implementation costs related to the proposed amendments that are associated with preparing the following: (i) public communications (notice re: coming in force of the amendments) to parties and the profession as well as to members of the Courts and Registry; (ii) updated guidelines for litigants (see Court website); and (iii) training for Court taxation officers, who have the primary role of assessing costs following a Court decision. Additional analysis is provided below regarding benefits and costs specific to each category of amendments.
Proposed Tariff B amendments
For many years, it has been recognized that costs awards based on Tariff B fall far short of the actual litigation costs incurred by parties, particularly in certain commercial or business practice areas such as intellectual property or maritime law. As a result, there has been an increasing trend, particularly in these commercial cases, for the Court not to rely on Tariff B when issuing a costs award, but instead to issue a “lump sum” award. This widespread “lump sum” practice therefore forms a baseline for the proposed amendments. While the proposed amendments would increase cost awards by the Court that are currently based on the tables in Tariff B by approximately 25%, a key purpose is for the tariff also to more closely reflect what is actually being awarded under the “lump sum” practice. Thus, in cases that would currently be awarded costs by the Court using Tariff B, the proposed amendments would provide an increase of approximately 25%, which will help address the shortfall in tariff-based costs awards. However, in cases that would be awarded “lump sum” costs by the Court, the proposed amendments provide an option for the Court instead to award tariff-based costs that would more closely match a “lump sum” award, providing a more consistent and predictable regime. However, the Court has full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid, so it is not possible to determine, under the proposed amendments, the number of cases that would switch from a lump sum to tariff-based costs or the number of cases that could see an increase in awards due to the new tariff structure. As a result, a monetized benefits and costs assessment is not feasible. However, it is acknowledged qualitatively that these changes could result in increased costs for some parties.
It is anticipated that the proposed amendments to the tariff provide a streamlined format that will be easier to use both for litigants as well as taxation officers.
Proposed Tariff A amendments
Copies of digital recordings — Pursuant to subsection 1(4) of Tariff A, a person requesting a digital recording of a proceeding from the Registry shall pay $15 per recording, regardless of format. Under the proposed amendment, this tariff would apply only if the person requests a copy on a portable electronic storage device. The tariff would not apply for a copy that can be shared remotely via email or the Cloud, given that it takes additional time and resources for the Registry to burn a CD/DVD or upload the file to a USB key for pick-up at the public Registry counter. In addition to the benefit to the public, the proposed amendment creates an incentive to choose the no-cost option (i.e. recordings shared by email or the Cloud), which takes less Registry resources.
Copies of documents — At present, members of the public must pay a tariff of $0.40 per page for print copies of documents on the Court record, but there is no tariff for digital copies of documents. It is proposed that subsection 1(4) be amended so that a person requesting a copy of a Court document on a portable electronic storage device be required to pay a $15 tariff. The proposed amendment provides consistency with the proposed amendment to the tariff for digital recordings. However, the tariff would not apply for a digital copy via email or the Cloud. Again, this provides the public with a reasonable no-cost alternative, with an incentive to choose an option that requires fewer Registry resources.
Small business lens
Small businesses can sue or be sued by the federal Crown in Federal Court, with appeals in Federal Court of Appeal; sue or be sued by other small businesses in areas of federal jurisdiction (e.g. maritime law or intellectual property matters); or seek judicial review of decisions of federal boards, commissions and offices. Depending on the outcome of such proceedings and the Court’s decision on costs, such a small business may then be either entitled to reimbursement of their own litigation costs or liable for the opposing party’s litigation costs, according to either a lump sum award or the costs regime available under Tariff B. Analysis under the small business lens, however, concluded that the proposal would not directly impact Canadian small businesses, as there is no change in administrative or compliance requirements. It should be noted, however, that small businesses may benefit from improved clarity on the tariff structure.
One-for-one rule
The requirements of the Rules and Immigration Rules do not meet the definition of administrative burden as defined in the Red Tape Reduction Act; therefore, the one-for-one rule does not apply.
Regulatory cooperation and alignment
The proposal is not related to a work plan or commitment under a formal regulatory cooperation forum.
Although there is policy alignment between the current proposals and the initiatives in the Courts of certain provinces in Canada, it is noted that each province has adopted a unique framework for indemnification of litigation costs that fits within their particular civil rules of procedure. Therefore, there are differences in each jurisdiction’s implementation of particular procedural rules, even though there may be general policy alignment.
In studying approaches to the indemnification of costs, the Subcommittee examined the costs regimes of all the provinces.
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.
Gender-based analysis plus
The proposed amendments are intended to improve the efficiency and consistency of the Rules and Immigration Rules with consideration to access to justice for litigants in the Federal Court of Appeal and Federal Court, including litigants who fall within the gender-based analysis plus (GBA+) analytic framework. No groups are expected to be disproportionately impacted by this proposal.
Implementation, compliance and enforcement, and service standards
The amended Rules and Immigration Rules will come into force one month after 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, under paragraph 46(4)(a)footnote a of the Federal Courts Act 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 proposes to make the annexed Rules Amending the Federal Courts Rules and the Federal Courts Citizenship, Immigration and Refugee Protection Rules under section 46footnote b of the Federal Courts Act footnote c, section 22.3footnote d of the Citizenship Act footnote e and subsection 75(1)footnote f of the Immigration and Refugee Protection Act footnote g.
Interested persons may make representations in writing concerning the proposed Rules within 60 days after the date of publication of this notice. They are strongly encouraged to use the online commenting feature that is available on the Canada Gazette website but if they use email, mail or any other means, the representations should cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent to Andrew Baumberg, Secretary to the Rules Committee, Federal Court, 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, January 31, 2023
Darlene Carreau
Chief Administrator, Courts Administration Service
Rules Amending the Federal Courts Rules and the Federal Courts Citizenship, Immigration and Refugee Protection Rules
Federal Courts Act
Federal Courts Rules
1 The long title of the Federal Courts Rules footnote 1 is replaced by the following:
Federal Courts Rules
2 Rule 1 of the Rules and the heading before it are repealed.
3 Subsection 400(5) of the Rules is replaced by the following:
Directions
(5) If the Court orders that costs be assessed in accordance with Tariff B, the Court may direct that the assessment be performed under a specific column or combination of columns of the applicable tables to that Tariff.
4 Rule 407 of the Rules is replaced by the following:
Tariff B
407 Unless the Court orders otherwise, party-and-party costs shall be assessed in accordance with column 2 of the applicable tables to Tariff B.
5 Subsection 1(4) of Tariff A to the Rules is replaced by the following:
Fee payable — electronic copies and digital recordings
(4) A person who requests that the Registry save an electronic copy of a document, or a digital recording of all or part of any day of a proceeding, on a portable electronic storage device shall pay $15 for each document or digital recording saved.
6 Subsection 1(2) of Tariff B to the Rules is replaced by the following:
Content
(2) A bill of costs shall indicate each assessable service, the applicable tables to this Tariff, the applicable columns and the number of units sought in accordance with those tables and, if the service is based on a number of hours, it shall indicate the number of hours claimed and be supported by evidence of those hours.
7 Subsection 2(2) of Tariff B to the Rules is repealed.
8 Subsection 4(2) of Tariff B to the Rules is replaced by the following:
Rounding of result
(2) If a calculation under subsection (1) results in an amount that is not evenly divisible by 10, the resulting amount shall be rounded to the next higher amount that is evenly divisible by 10.
9 The table to Tariff B to the Rules is replaced by the following:
TABLE 1
| Item | Assessable Service | Number of Units | ||
|---|---|---|---|---|
| Column 1 | Column 2 | Column 3 | ||
| 1 | Preparation and filing of any statement of claim, statement of defence, statement of defence and counterclaim, defence to counterclaim, reply and defence to counterclaim, third party claim, defence to third party claim or statement of the issues on a reference | 3–7 | 6–10 | 9–13 |
| 2 | Preparation and filing of reply | 1–3 | 4–6 | 7–9 |
| 3 | Preparation and filing of notice of constitutional question | 1–3 | 4–6 | 7–9 |
| 4 | Review of notice of constitutional question | 1–3 | 1–5 | 1–7 |
| 5 | Preparation and filing of written representations for a status review or, if requested by the Court, for the purpose of case management | 1 | 1 | 1 |
| 6 | Preparation and delivery of demand for particulars | 1–3 | 1–6 | 1–9 |
| 7 | Preparation and delivery of particulars | 1–3 | 1–5 | 1–7 |
| 8 | Amendment to pleading if necessitated by a new or amended pleading of another party | 1–3 | 3–5 | 6–8 |
| 9 | Preparation and issuance of documents related to the arrest of property, including an Affidavit to Lead Warrant | 1–3 | 1–5 | 1–7 |
| 10 | Preparation and issuance of a caveat release or a release of arrested property | 1 | 1 | 1 |
| 11 | Preparation and delivery of discovery plans that are ordered or directed by the Court, including amendments to those plans | 2–4 | 4–6 | 6–0 |
| 12 | Preparation and delivery of claims charts that are ordered or directed by the Court | 2–4 | 4–6 | 6–10 |
| 13 | Preparation and delivery of a list of documents in accordance with rule 295 and production of those documents | 2–4 | 4–6 | 6–10 |
| 14 | Preparation and delivery of affidavit of documents and the production of the first 500 documents identified in Schedule 1 to Form 223 | 1–5 | 5–9 | 9–15 |
| 15 | Production of each additional grouping of up to 1,000 documents identified in Schedule 1 to Form 223, to a maximum of 10 of those groupings | 1–5 | 5–9 | 9–15 |
| 16 | Review of documents produced by another party — first 500 documents | 1–3 | 3–5 | 6–8 |
| 17 | Review of documents produced by another party — each additional grouping of up to 1,000 documents to a maximum of 10 of those groupings | 1–3 | 3–5 | 6–8 |
| 18 | Inspection of documents in accordance with subsection 228(1) | 1–3 | 1–3 | 1–3 |
| 19 | Participation at case management, trial management or pre-trial conference, for each hour or part of an hour | 1–3 | 1–3 | 1–3 |
| 20 | Preparation and delivery of request to admit facts or documents | 1–3 | 2–4 | 4–6 |
| 21 | Preparation and delivery of response to request to admit facts or documents | 1–3 | 2–4 | 4–6 |
| 22 | Preparation for examination, including examination for discovery, examination for trial out of court or examination in aid of execution, for each individual examined | 1–3 | 1–5 | 1–11 |
| 23 | Attendance at examination, including examination for discovery, examination for trial out of court or examination in aid of execution, for each hour (for each quarter of an hour or less, add 25% of the units allocated for each hour) | 1–3 | 1–5 | 1–7 |
| 24 | Preparation of answers to undertakings, for each witness | 1–3 | 1–7 | 1–9 |
| 25 | Review of answers to undertakings of other parties, for each witness | 1–3 | 1–5 | 1–7 |
| 26 | Provision of instructions to expert witness and review of expert witness report, for each report | 1–5 | 1–9 | 1–15 |
| 27 | Review of expert witness report of opposing parties, for each report | 1–5 | 1–9 | 1–15 |
| 28 | Consultation related to inspection of property in accordance with rule 249, including joint testing, under an order of the Court, and attendance at the joint testing | 1–3 | 1–7 | 1–13 |
| 29 | Preparation and filing of pre-trial conference materials, including a requisition for pre-trial conference and a pre-trial conference memorandum | 1–3 | 1–5 | 1–7 |
| 30 | Preparation and filing of trial record | 1–3 | 1–3 | 1–3 |
| 31 | Preparation and filing of joint document brief that is requested or permitted by the Court | 1–3 | 3–5 | 5–9 |
| 32 | Preparation of a compendium that is requested or permitted by the Court | 1–3 | 2–4 | 3–5 |
| 33 | Preparation for hearing of trial, whether or not the trial proceeds, including correspondence, preparation of witnesses, issuance of subpoenas and other services not otherwise particularized in this Tariff | 1–5 | 4–8 | 7–11 |
| 34 | Preparation for hearing of trial, for each day or part of day in Court after the first day in Court | 1 | 1–3 | 4–8 |
| 35 | Counsel fee for attendance of first counsel at hearing of trial, for each hour in Court (for each quarter of an hour or less in Court, add 25% of the units allocated for each hour in Court) | 1 | 1–3 | 3–5 |
| 36 | Counsel fee for attendance of second counsel at hearing of trial, for each hour in Court, 50% of the units per hour allocated under item 35 (for each quarter of an hour or less in Court, add 12.5% of the units per hour allocated under item 35) | |||
| 37 | Preparation of affidavit required by the Rules or directed by the Court and used at trial, for each affidavit | 1–5 | 3–5 | 5–7 |
| 38 | Preparation and filing of written submissions that are requested or permitted by the Court | 1–3 | 1–7 | 1–11 |
| 39 | Attendance at a reference, accounting or other similar procedure not otherwise provided for in this Tariff, for each hour (for each quarter of an hour or less, add 25% of the units allocated for each hour) | 1–3 | 1–5 | 1–9 |
| 40 | Travel by counsel to attend examinations for discovery, case management conference, pre-trial conference, trial or other hearing, at the discretion of the Court | 1–3 | 1–5 | 1–9 |
| 41 | Services after judgment not otherwise specified | 1 | 1 | 1 |
| 42 | Assessment of costs | 1–5 | 3 — 7 | 6–10 |
| 43 | Any other services allowed by the assessment officer or ordered by the Court | 1 | 1–3 | 1–5 |
TABLE 2
| Item | Assessable Service | Number of Units | ||
|---|---|---|---|---|
| Column 1 | Column 2 | Column 3 | ||
| 1 | Preparation and filing of notice of application | 1–3 | 3–5 | 5–7 |
| 2 | Preparation and filing of notice of appearance | 1 | 1 | 1 |
| 3 | Preparation and filing of notice of constitutional question | 1–3 | 4–6 | 7–9 |
| 4 | Review of notice of constitutional question | 1–3 | 1–5 | 1–7 |
| 5 | Preparation and filing of written representations for a status review or, if requested by the Court, for the purpose of case management | 1 | 1 | 1 |
| 6 | Participation in case management conference, for each hour (for each quarter of an hour or less, add 25% of the units allocated for each hour) | 1–3 | 1–3 | 1–3 |
| 7 | Review of certified tribunal record | 1–3 | 3–5 | 5–7 |
| 8 | Preparation and filing of written material for an objection under subsection 318(2) filed in accordance with directions of the Court, at the discretion of the Court | 1–3 | 1–3 | 1–3 |
| 9 | Provision of instructions to expert witness and review of supporting expert witness affidavits, for each affidavit | 2–4 | 5–9 | 10–14 |
| 10 | Preparation and service of supporting witness affidavits, other than affidavits of expert witnesses, for each affidavit | 1–5 | 3–5 | 5–7 |
| 11 | Preparation for cross-examination of each expert witness | 1–3 | 4–6 | 7–11 |
| 12 | Preparation for cross-examination of each witness other than an expert witness | 1–3 | 3–5 | 5–7 |
| 13 | Attendance at cross-examination of witness, for each hour (for each quarter of an hour or less, add 25% of the units allocated for each hour) | 1–3 | 1–3 | 1–5 |
| 14 | Preparation and filing of record, including memorandum of fact and law | 1–7 | 6–10 | 11–15 |
| 15 | Preparation and filing of requisition for hearing | 1 | 1 | 1 |
| 16 | Preparation for hearing of application, whether or not the application proceeds | 1–3 | 1–5 | 5–11 |
| 17 | Preparation for hearing of application, for each day or part of a day in Court after the first day in Court | 1 | 1–3 | 4–8 |
| 18 | Counsel fee for attendance of first counsel at hearing of application, for each hour in Court (for each quarter of an hour or less in Court, add 25% of the units allocated for each hour in Court) | 1–3 | 1–3 | 3–5 |
| 19 | Counsel fee for attendance of second counsel at hearing of application, for each hour in Court, 50% of the units per hour allocated under item 18 (for each quarter of an hour or less in Court, add 12.5% of the units per hour allocated under item 18) | |||
| 20 | Travel by counsel to attend at cross-examinations or hearing, at the discretion of the Court | 1–3 | 1–5 | 1–9 |
| 21 | Preparation of any additional written submissions that are requested or permitted by the Court | 1–3 | 3–7 | 7–11 |
| 22 | Preparation and filing of compendium for hearing that is requested or permitted by the Court | 1–3 | 2–4 | 3–5 |
| 23 | Services after judgment not otherwise specified | 1 | 1 | 1 |
| 24 | Assessment of costs | 1–5 | 3–7 | 6–10 |
| 25 | Any other services allowed by the assessment officer or ordered by the Court | 1 | 1–3 | 1–5 |
TABLE 3
| Item | Assessable Service | Number of Units | ||
|---|---|---|---|---|
| Column 1 | Column 2 | Column 3 | ||
| 1 | Preparation and filing of notice of appeal or notice of cross-appeal | 1–3 | 1–3 | 2–6 |
| 2 | Preparation and filing of notice of appearance | 1 | 1 | 1 |
| 3 | Preparation and filing of notice of constitutional question | 1–3 | 4–6 | 7–9 |
| 4 | Review of notice of constitutional question | 1–3 | 1–5 | 1–7 |
| 5 | Preparation and filing of written representations for a status review or, if requested by the Court, for the purpose of case management | 1 | 1 | 1 |
| 6 | Agreement to content of appeal book | 1–3 | 1–3 | 1–3 |
| 7 | Preparation of appeal book | 1 | 2 | 3 |
| 8 | Participation at case management or hearing management conference, for each hour (for each quarter of an hour or less, add 25% of the units allocated for each hour) | 1–3 | 1–3 | 1–3 |
| 9 | Preparation and filing of memorandum of fact and law, for each hour (for each quarter of an hour or less, add 25% of the units allocated for each hour) | 1–7 | 6–10 | 11–15 |
| 10 | Preparation and filing of requisition for hearing | 1 | 1 | 1 |
| 11 | Preparation and filing of books of authorities | 1–3 | 2–4 | 5–7 |
| 12 | Preparation for hearing, whether or not the hearing proceeds | 1–5 | 6–8 | 9–11 |
| 13 | Preparation for hearing, for each day or part of a day in Court after the first day in Court | 1–3 | 1–5 | 1–7 |
| 14 | Counsel fee for attendance of first counsel at hearing, for each hour in Court (for each quarter of an hour or less in Court, add 25% of the units allocated for each hour in Court) | 1–3 | 1–3 | 3–5 |
| 15 | Counsel fee for attendance of second counsel at hearing, for each hour in Court, 50% of the units per hour allocated under item 14 (for each quarter of an hour or less in Court, add 12.5% of the units per hour allocated under item 14) | |||
| 16 | Preparation and filing of additional written submissions that are requested or permitted by the Court | 1–3 | 3–7 | 7–11 |
| 17 | Preparation and filing of compendium that is requested or permitted by the Court | 1–3 | 2–4 | 3–5 |
| 18 | Travel by counsel to attend hearing of appeal, at the discretion of the Court | 1–3 | 1–5 | 1–9 |
| 19 | Services after judgment not otherwise specified | 1 | 1 | 1 |
| 20 | Assessment of costs | 1–5 | 3–7 | 6–10 |
| 21 | Any other services allowed by the assessment officer or ordered by the Court | 1 | 1–3 | 1–5 |
TABLE 4
| Item | Assessable Service | Number of Units | ||
|---|---|---|---|---|
| Column 1 | Column 2 | Column 3 | ||
| 1 | Preparation and filing of notice of motion | 1–3 | 1–3 | 1–5 |
| 2 | Instruction and review of supporting expert witness affidavits, for each affidavit | 1–3 | 4–10 | 10–14 |
| 3 | Preparation and service of other supporting witness affidavits, for each affidavit | 1–3 | 1–5 | 1–7 |
| 4 | Preparation for cross-examination of each expert witness | 1–3 | 4–6 | 7–11 |
| 5 | Preparation for cross-examination of each witness other than an expert witness | 1–3 | 3–5 | 5–7 |
| 6 | Attendance at cross-examination of witness, for each hour (for each quarter of an hour or less, add 25% of the units allocated for each hour) | 1–3 | 1–3 | 1–5 |
| 7 | Preparation and filing of motion record of moving party or responding party, including preparation of written submissions | 1–5 | 1–7 | 1–9 |
| 8 | Preparation and filing of reply written submissions for motions in writing | 1–3 | 1–3 | 1–3 |
| 9 | Preparation for hearing of motion lasting more than three hours, for each additional three-hour period or part of one of those periods | 1–3 | 3–5 | 5–7 |
| 10 | Counsel fee for attendance of first counsel at hearing of motion, for each hour in Court (for each quarter of an hour or less in Court, add 25% of the units allocated for each hour in Court) | 1 | 1–3 | 3–5 |
| 11 | Counsel fee for attendance of second counsel at hearing of motion lasting more than three hours, for each hour in Court, 50% of the units per hour allocated under item 10 (for each quarter of an hour or less in Court, add 12.5% of the units per hour allocated under item 10) | |||
| 12 | Travel by counsel to attend on motion or cross-examinations, at the discretion of the Court | 1–3 | 1–5 | 1–9 |
| 13 | Preparation of draft bill of costs presented at hearing | 1 | 1 | 1 |
10 (1) The Rules are amended by replacing “prothonotary” and “prothonotaries” with “associate judge” and “associate judges”, respectively, in the following provisions:
- (a) the definitions assessment officer and case management judge and paragraph (b) of the definition Court in rule 2;
- (b) paragraph 26(3)(a);
- (c) subsection 26.1(1);
- (d) the portion of subsection 30(1) before paragraph (a);
- (e) paragraph 35(2)(b);
- (f) rule 39;
- (g) subsection 47(1);
- (h) the portion of subsection 50(1) before paragraph (a) and subsections 50(2) to (5);
- (i) the heading before section 51;
- (j) subsection 51(1);
- (k) subsections 52.6(3) and (4);
- (l) paragraph 72(1)(b) and the portion of subsection 72(2) before paragraph (a);
- (m) rule 264;
- (n) paragraph 265(1)(b);
- (o) rules 266 and 267;
- (p) rule 270;
- (q) subsection 334.26(3);
- (r) the portion of subsection 382.1(2) before paragraph (a);
- (s) paragraphs 383(b) and (c);
- (t) the portion of subsection 385(1) before paragraph (a) and subsections 385(2) and (3);
- (u) the portion of rule 387 before paragraph (a);
- (v) rule 390;
- (w) subsection 392(2);
- (x) paragraph 393(b);
- (y) subsection 394(2);
- (z) subsection 403(3);
- (z.1) subsection 413(1);
- (z.2) rule 422;
- (z.3) subsection 487(2);
- (z.4) Form 45;
- (z.5) Form 66;
- (z.6) Form 272A;
- (z.7) Form 380;
- (z.8) Forms 458A to 459; and
- (z.9) paragraph 1(1)(e) of Tariff A.
(2) The English version of the Rules is amended by replacing “prothonotary” with “associate judge” in the following provisions:
- (a) paragraph 30(1)(a); and
- (b) paragraph 30(1)(c).
Immigration and Refugee Protection Act
Federal Courts Citizenship, Immigration and Refugee Protection Rules
11 The Federal Courts Citizenship, Immigration and Refugee Protection Rules footnote 2 are amended by replacing “prothonotary” with “associate judge” in the following provisions:
- (a) paragraph (b) of the definition Court in rule 2; and
- (b) subrule 21(2).
Transitional Provision
12 Tariff B to the Federal Courts Rules, as it read immediately before the day on which these Rules come into force, continues to apply in respect of costs that are awarded by a judgment that is issued by the Court, as defined in rule 2 of those Rules, before that day.
Coming into Force
13 These Rules come into force on the day that, in the first month after the month in which they are registered, has the same calendar number as the day on which they are registered or, if that first month has no day with that number, the last day of that first month.
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