Rules Amending the Federal Courts Rules: SOR/2021-150

Canada Gazette, Part II, Volume 155, Number 14

Registration
SOR/2021-150 June 17, 2021

FEDERAL COURTS ACT

P.C. 2021-592 June 17, 2021

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

Ottawa, May 14, 2021

Donald J. Rennie
Chair
Rules committee of the Federal Court of Appeal and the Federal Court

Whereas, pursuant to paragraph 46(4)(a) footnote c of the Federal Courts Act footnote b, 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 November 5, 2016 and interested persons were invited to make representations concerning the proposed Rules;

Therefore, His Excellency the Administrator of the Government of Canada in Council, on the recommendation of the Minister of Justice, pursuant to section 46 footnote a of the Federal Courts Act footnote b, 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 Subsections 50(2) and (3) of the Federal Courts Rules footnote 1 are replaced by the following:

Actions not over $100,000

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

Class proceedings

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

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

Book of authorities

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

3 Subsection 139(2) of the Rules is replaced by the following:

Service on other parties

(2) Subject to subsection 36(3) and rules 145 and 204.1, the document shall be served on all other parties.

4 The Rules are amended by adding the following before rule 151:

Criminal proceeding under Competition Act

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

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

Defence

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

Extension of time

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

Notice of intention to respond

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

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

Preliminary Matters

No attornment to jurisdiction

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

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

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

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

Cahier des lois, règlements, jurisprudence et doctrine

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

Joint book

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

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

Separate books

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

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

Reasons for judgment

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

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

Condensed Book

Copies and content

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

12 Form 171A of the Rules is replaced by the Form 171A set out in the Schedule 1 to these Rules.

13 The Rules are amended by adding, in numerical order, the Form 204.1 set out in the Schedule 2 to these Rules.

Transitional Provision

14 Paragraph 292(a) of the Federal Courts Rules, as it read immediately before the day on which these Rules come into force, continues to apply to all actions commenced before the day on which these Rules come into force.

Coming into Force

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

SCHEDULE 1

(Section 12)

FORM 171A

Rule 171

Statement of Claim

(General Heading — Use Form 66)

(Court seal)

Statement of Claim

TO THE DEFENDANT:

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

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

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

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

(Date)

Issued by:
(Registry Officer)

Address of local office:

TO: (Name and address of each defendant)

(Separate page)

Claim

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

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

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

(Date)

(Signature of solicitor or plaintiff)

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

SCHEDULE 2

(Section 13)

FORM 204.1

Rule 204.1

Notice of Intention to Respond

(General Heading — Use Form 66)

Notice of Intention to Respond

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

(Date)

(Signature of solicitor or defendant)

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

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

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Rules.)

Issues

There is a need for substantive amendments to the Federal Courts Rules to reduce the administrative burden on litigants and the Courts; to make the Courts more efficient by increasing access to simplified procedures and increasing the monetary limit for jurisdiction of prothonotaries (judicial officers); and to codify the practice for confidential pre-trial documents in criminal proceedings under the Competition Act.

Background

The Rules Committee of the Federal Court of Appeal and the Federal Court (“Rules Committee”) is a statutory committee created under section 45.1 of the Federal Courts Act to make, amend, or revoke rules, subject to the approval of the Governor in Council. Pursuant to section 45.1, the Rules Committee includes the Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court; three judges designated by the Chief Justice of the Federal Court of Appeal, and five judges and one prothonotary designated by the Chief Justice of the Federal Court; the Chief Administrator of the Courts Administration Service; five members from the bar (designated by the Attorney General of Canada, after consultation with the Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court); and the Attorney General of Canada or a representative thereof.

The Rules Committee normally meets biannually to review amendment projects as well as proposals for amendment (though no meetings were held in 2017–2018 due to quorum issues). At the plenary meeting of the Federal Courts Rules Committee held on May 6, 2011, it was agreed that a list of possible substantive changes to the Federal Courts Rules be examined by a Rules subcommittee. The substantive amendment proposals were referred for review by a new Rules subcommittee struck at the Federal Courts Rules Committee meeting of November 18, 2011. The new subcommittee met on January 20 and April 24, 2012, and prepared recommendations for consideration by the plenary Rules Committee at its meeting of May 11, 2012. A regulatory drafting team began work on the proposed amendments in 2013. Successive working drafts of the amendment project were discussed, reviewed, amended, and ultimately approved by the plenary Committee at its meetings of December 13, 2013, May 30, 2014, November 14, 2014, May 29, 2015, and November 27, 2015. The Rules Amending the Federal Courts Rules were prepublished on November 5, 2016, in the Canada Gazette, Part I, for a 60-day comment period, in accordance with subsection 46(4) of the Federal Courts Act. Following the above-noted gap in Rules Committee meetings, the public comments were finally considered at the next meeting, on November 29, 2019, and further amendments were proposed by the Rules Committee to address the comments. After an additional delay in 2020 due to the pandemic, the updated amendment proposal was reviewed and further revised at the next meeting, on November 6, 2020, and then finally endorsed by the Committee in February 2021.

Objective

The amendments address the key issues identified by the Rules Committee:

Description

The amendments to the Rules are set out below:

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

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

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

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

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

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

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

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

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

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

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

Regulatory development

Consultation

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

The proposed procedural amendments have been recommended by the Rules Committee, which comprises the Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court; judges of both the Federal Court of Appeal and the Federal Court; the Chief Administrator of the Courts Administration Service; and practising lawyers designated by the Attorney General of Canada from both the private and public sectors, upon consultation with the Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court.

The Rules Amending the Federal Courts Rules were prepublished on November 5, 2016, in the Canada Gazette, Part I, for a 60-day comment period, in accordance with subsection 46(4) of the Federal Courts Act. Comments were received from members of the profession and can be summarized into the following three categories.

Comments related to proposed amendments to Rule 151 (Motion for order of confidentiality) and Rule 152 (Marking of confidential material)

Intellectual Property (IP) law practitioners questioned the underlying rationale of the requirement to file a statement from the party's solicitor (or an affidavit of the party) confirming that the solicitor (or party) reviewed a confidentiality order and that the only information redacted from the public version of the document was that required to be treated as confidential by the order. Furthermore, the IP practitioners noted that, if amended as proposed, the Rules should also include a procedure to challenge the statement or affidavit, and a remedy for non-compliance; however, they ultimately took the position that the proposed amendments are unnecessary. Immigration and Refugee law bar practitioners expressed concern with the administrative burden that would be imposed by the proposed revisions, unless an exception were made for cases in their practice area.

Given the comments received from members of the Bar, as well as the rapid transition (due to the pandemic) from paper-based filing to electronic filing, and related policy discussions within the Courts and the Bar regarding the potential for online access to documents on the public court record, the Rules Committee decided to withdraw the proposed amendments to rules 151 and 152 from the current amendment package.

Comments related to proposed amendments to Rule 204.1(2)

Maritime law practitioners noted that the requirement for personal service of a “Notice of Intent to Respond” on every other party is too onerous, particularly if there are defendants who are non-residents of Canada, and is not proportional to the limited purpose for sending a Notice under the proposed rule (i.e. to gain an extra 10 days to file a Statement of Defence).

The Rules Committee decided to revise Rule 204.1(2) to require service of the notice only on the plaintiff or its solicitor.

Comments related to amendments to Rule 292(2)

The proposed amendment to Rule 292 would increase the limit for simplified actions from $50,000 to $100,000. Maritime law practitioners noted that there was no transitional provision indicating that actions for monetary amounts between $50,001 and $100,000 would continue to be governed under the General Rules in force at the time they were filed and, therefore, these actions would automatically become “Simplified Actions” upon the coming in force of the proposed rules.

The Rules Committee decided that a transitional rule should be established by which existing actions would proceed under the simplified action procedure in force on the date that the statement of claim was filed.

Each category of comments was presented to the Federal Courts Rules Committee and addressed by modifications to the Rules.

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 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 Federal Courts 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 the interpretation of the Federal Courts Rules and to provide guidance on matters of practice that are not set out fully in the Rules. However, as between the Federal Courts 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 Federal Courts Rules. This instrument provides

Regulatory analysis

Benefits and costs

Although including numerous incremental process changes and efficiency improvements, the proposal is not expected to have any significant cost implications.

The increase in the monetary jurisdiction of prothonotaries allows more claims to be heard by a prothonotary rather than a judge, who can then be assigned to hear matters that are within the exclusive jurisdiction of a judge. Furthermore, the increase in the monetary jurisdiction of prothonotaries would allow them to continue to hear simplified actions after its monetary threshold is increased.

Simplified actions have consistently made up only about 20% of the actions filed each year, averaging about 140 simplified actions per year. The increased monetary threshold for simplified actions allows more claims to be heard according to the simplified procedure, supporting the principle of proportionality and reducing litigation costs for Government and private litigants in these cases.

An increase in the number of proceedings that could be heard by prothonotaries rather than judges would increase the overall workload of prothonotaries. Depending on the volume of the additional caseload, this may result in increased time frames to get to a hearing or the appointment of additional prothonotaries if there is expected to be a long-term need for additional judicial capacity. However, given the caseload backlog due to the pandemic for proceedings that are in the exclusive jurisdiction of judges, shifting cases to prothonotaries will result in more timely access to the Court overall.

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

Some of the amendments, such as those to ensure the timely filing of appeal books and to provide for the filing of a condensed appeal book, will improve efficiency of Court proceedings, resulting in more effective use of limited judicial resources. As stated above, parties often file the book of authorities a few days before the hearing, or at the hearing itself. Instead, the authorities would need to be filed within the same time frame provided by the Rules for submitting the requisition for hearing, which would be scheduled only once the authorities were submitted. For the condensed appeal book, the proposed Rule would simply codify the informal practice, and so would not increase parties' costs.

The amendments related to proceedings of the Competition Act provide support for a proper balancing between the open court principle and valid privacy interests, including recognized commercial interests, at play in criminal legal proceedings under that Act. The amendments codify the existing practice.

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

Small business lens

The proposal does not directly impact small businesses and is mainly intended to improve the efficiency of judicial operations; therefore, the small business lens does not apply. However, small businesses may indirectly benefit from these improvements as users of judicial services.

One-for-one rule

The Rules' requirements do not meet the definition of administrative burden as defined by the Red Tape Reduction Act and, 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.

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 to the Rules are intended to improve the efficiency and consistency of the 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 will come into force on the day on which they are registered.

Contact

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