Rules Amending the Federal Courts Rules: SOR/2021-151

Canada Gazette, Part II, Volume 155, Number 14

Registration
SOR/2021-151 June 17, 2021

FEDERAL COURTS ACT

P.C. 2021-593 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 13, 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 June 3, 2017 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 The heading before section 21 of the English Version of the Federal Courts Rules footnote 1 is replaced by the following:

Court Files

2 (1) Paragraph 35(2)(b) of the Rules is replaced by the following:

(2) Rule 35 of the Rules is amended by adding the following after subsection (2):

Motion record

(3) The request shall be accompanied by a motion record.

3 Rule 70 of the Rules is amended by adding the following after subsection (4):

Exception — combined memorandum

(5) Despite subsection (4), if a respondent serves and files a single memorandum of fact and law as appellant by cross-appeal as part of the respondent's memorandum of fact and law, it shall not exceed 60 pages in length exclusive of Part V and appendices.

4 The Rules are amended by adding the following after rule 72.3:

Filing — National Capital Region

72.4 (1) A party that files paper copies of documents under subsection 309(1.1), 310(1.1), 345(2), 348(1) or 353(1), rule 354 or 355 or subsection 364(1) or 365(1) may file one fewer copy than set out in those provisions if the Court has been notified in writing that all parties to the proceeding are based in the National Capital Region and that they all agree that the proceeding and all matters related to it will proceed and be disposed of in the National Capital Region.

Notification to Court

(2) The written notification may accompany the documents being filed.

5 The Rules are amended by adding the following after rule 73:

Notice of constitutional question

73.1 A notice of a constitutional question referred to in section 57 of the Act shall be filed, along with proof that it has been served in accordance with that section, without delay after service.

6 Rule 79 of the Rules is replaced by the following:

Manner of amending

79 (1) A filed document may be amended

Information

(2) An amendment made under subsection (1) shall indicate the rule or Court order under which the amendment is made and the date on which it is made.

7 Paragraph 169(a) of the Rules is repealed.

8 Rule 264 of the Rules is replaced by the following:

Trial date and place

264 If the date and place for trial have not already been fixed, the judge or prothonotary who conducts the pre-trial conference shall do so as soon as practicable after the pre-trial conference.

9 Paragraph 300(c) of the Rules is repealed.

10 Paragraphs 309(1.1)(a) and (b) of the Rules are replaced by the following:

11 Paragraphs 310(1.1)(a) and (b) of the Rules are replaced by the following:

12 Paragraph 314(2)(f) of the Rules is replaced by the following:

13 Subsection 316.2(1) of the Rules is replaced by the following:

Summary application under Income Tax Act or Excise Tax Act

316.2 (1) Except for rule 359, the procedures set out in Part 7 apply, with any modifications that are required, to a summary application brought under section 231.7 of the Income Tax Act or section 289.1 of the Excise Tax Act.

14 Paragraphs 345(2)(a) and (b) of the Rules are replaced by the following:

15 Paragraph 346(3)(a) of the Rules is replaced by the following:

16 Paragraph 347(3)(f) of the Rules is replaced by the following:

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

18 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, subject to rule 72.4, three paper copies of that record.

19 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, subject to rule 72.4, 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, subject to rule 72.4, three paper copies of the reply no later than 10 days after the day on which it is served.

20 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, subject to rule 72.4, three paper copies of that record.

21 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, subject to rule 72.4, 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.

22 Form 301 of the Rules is replaced by the following:

FORM 301

Rule 301

Notice of Application

(General Heading — Use Form 66)

(Court seal)

Notice of Application

TO THE RESPONDENT:

A PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the applicant. The relief claimed by the applicant appears below.

THIS APPLICATION will be heard by the Court at a time and place to be fixed by the Judicial Administrator. Unless the Court orders otherwise, the place of hearing will be as requested by the applicant. The applicant requests that this application be heard at (place where Federal Court of Appeal (or Federal Court) ordinarily sits).

IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application or to be served with any documents in the application, you or a solicitor acting for you must file a notice of appearance in Form 305 prescribed by the Federal Courts Rules and serve it on the applicant's solicitor or, if the applicant is self-represented, on the applicant, WITHIN 10 DAYS after being served with this notice of application.

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)

Application

(Where the application is an application for judicial review)

This is an application for judicial review in respect of

(Identify the tribunal.)

(Set out the date and details of the decision, order or other matter in respect of which judicial review is sought.)

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.)

(If the applicant wishes a tribunal to forward material to the Registry, add the following paragraph:)

The applicant requests (name of the tribunal) to send a certified copy of the following material that is not in the possession of the applicant but is in the possession of the (tribunal) to the applicant and to the Registry: (Specify the particular material.)

(Date)

(Signature of solicitor or applicant)

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

23 Forms 314 and 316.2 of the Rules are replaced by the following:

FORM 314

Rule 314

Requisition for Hearing — Application

(General Heading — Use Form 66)

Requisition for Hearing

THE APPLICANT REQUESTS that a date be set for the hearing of this application.

THE APPLICANT CONFIRMS THAT:

1 The requirements of subsection 309(1) of the Federal Courts Rules have been complied with.

2 A notice of constitutional question has been served in accordance with section 57 of the Federal Courts Act.

(or)

There is no requirement to serve a notice of constitutional question under section 57 of the Federal Courts Act in this application.

3 The hearing should be held at (place).

4 The hearing should last no longer than (number) hours (or days).

5 The representatives of all parties to the application are as follows:

(If more than one applicant, respondent or intervener represented by different solicitors, list all.)

6 The parties are available at any time except: (List all dates within the next 90 days on which the parties are not available for a hearing.)

7 The hearing will be (in English or in French or partly in English and partly in French).

8 An interpreter (will not be required or will be required for English to French interpretation or will be required for French to English interpretation).

9 The materials in the requisition for hearing file are (in English or in French or partly in English and partly in French).

(Date)

(Signature of solicitor or applicant)

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

TO: (Name and address of other solicitor or party served with requisition)

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 or section 289.1 of the Excise Tax Act. The relief claimed by the applicant appears below.

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 2:00 p.m. on the day that is two days before the hearing of the application.

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 and telephone and fax numbers and electronic address of solicitor or applicant)

24 Forms 337 and 337.1 of the Rules are replaced by the following:

FORM 337

Rule 337

Notice of Appeal

(General Heading — Use Form 66)

(Court seal)

Notice of Appeal

TO THE RESPONDENT:

A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the appellant. The relief claimed by the appellant appears below.

THIS APPEAL will be heard by the Court at a time and place to be fixed by the Judicial Administrator. Unless the Court directs otherwise, the place of hearing will be as requested by the appellant. The appellant requests that this appeal be heard at (place where Federal Court of Appeal (or Federal Court) ordinarily sits).

IF YOU WISH TO OPPOSE THIS APPEAL, to receive notice of any step in the appeal or to be served with any documents in the appeal, you or a solicitor acting for you must prepare a notice of appearance in Form 341A prescribed by the Federal Courts Rules and serve it on the appellant's solicitor or, if the appellant is self-represented, on the appellant, WITHIN 10 DAYS after being served with this notice of appeal.

IF YOU INTEND TO SEEK A DIFFERENT DISPOSITION of the order appealed from, you must serve and file a notice of cross-appeal in Form 341B prescribed by the Federal Courts Rules instead of serving and filing a notice of appearance.

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 APPEAL, 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)

Appeal

THE APPELLANT APPEALS to the Federal Court of Appeal (or Federal Court) from the order of (name of judge, officer or tribunal) dated (date) by which (details of order under appeal).

THE APPELLANT ASKS that (the relief sought).

THE GROUNDS OF APPEAL are as follows: (Set out the grounds of appeal, including a reference to any statutory provision or rule to be relied on.)

(If the appellant wishes a tribunal to forward material to the Registry, add the following paragraph:)

The appellant requests (name of the tribunal) to send a certified copy of the following material that is not in the possession of the appellant but is in the possession of the tribunal to the appellant and to the Registry: (Specify the particular material.)

(Date)

(Signature of solicitor or appellant)

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

FORM 337.1

Rule 337.1

Notice of Appeal

(Court File No.)

FEDERAL COURT OF APPEAL

BETWEEN:

(Name)

Appellant

and

(Name)

Respondent

(Court seal)

Notice of Appeal

(under subsection 27(1.2) of the Federal Courts Act)

TO THE RESPONDENT:

A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the appellant. The relief claimed by the appellant appears below.

THIS APPEAL will be heard by the Federal Court of Appeal at a time and place to be fixed by the Judicial Administrator. Unless the court directs otherwise, the place of hearing will be as requested by the appellant. The appellant requests that this appeal be heard at (place where Federal Court of Appeal ordinarily sits).

IF YOU WISH TO OPPOSE THIS APPEAL, to receive notice of any step in the appeal or to be served with any documents in the appeal, you or a solicitor acting for you must prepare a notice of appearance in Form 341A prescribed by the Federal Courts Rules and serve it on the appellant's solicitor or, if the appellant is self-represented, on the appellant, WITHIN 10 DAYS after served with this notice of appeal.

IF YOU INTEND TO SEEK A DIFFERENT DISPOSITION of the judgment appealed from, you must serve and file a notice of cross-appeal in Form 341B prescribed by the Federal Courts Rules instead of serving and filing a notice of appearance.

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 613‑996‑6795) or at any local office.

IF YOU FAIL TO OPPOSE THIS APPEAL, 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)

Appeal

THE APPELLANT APPEALS to the Federal Court of Appeal from the judgment of the Tax Court of Canada dated (date) by which (details of judgment under appeal).

THE APPELLANT ASKS that (the relief sought).

THE GROUNDS OF APPEAL are as follows: (Set out the grounds of appeal, including those grounds set out in subsection 27(1.3) of the Federal Courts Act, reproduced below, which apply to the appeal. Also include a reference to any other statutory provision or rule to be relied on.)

(Subsection 27(1.3) provides as follows:

27(1.3) The only grounds for an appeal under subsection (1.2) are that the Tax Court of Canada

(If the appellant wishes the Tax Court of Canada to forward material to the Registry, add the following paragraph:)

The appellant requests that the Tax Court of Canada send a certified copy of the following material that is not in the possession of the appellant but is in the possession of that court to the appellant and to the Registry: (Specify the particular material.)

(Date)

(Signature of solicitor or appellant)

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

25 Form 347 of the Rules is replaced by the following:

FORM 347

Rule 347

Requisition for Hearing — Appeal

(General Heading — Use Form 66)

Requisition for Hearing

THE APPELLANT (or RESPONDENT, as the case may be) REQUESTS that a date be set for the hearing of this appeal.

THE APPELLANT (or RESPONDENT, as the case may be) CONFIRMS THAT:

1 The requirements of subsections 346(1) and (5) of the Federal Courts Rules have been complied with.

2 A notice of constitutional question has been served in accordance with section 57 of the Federal Courts Act.

(or)

There is no requirement to serve a notice of constitutional question under section 57 of the Federal Courts Act in this appeal.

3 The hearing should be held at (place).

4 The hearing should last no longer than (number) hours (or days).

5 The representatives of all parties to the appeal are as follows:

6 The parties are available at any time except: (List all dates within the next 90 days on which the parties are not available for a hearing.)

7 The hearing will be (in English or in French or partly in English and partly in French).

8 An interpreter (will not be required or will be required for English to French interpretation or will be required for French to English interpretation).

9 The materials in the requisition for hearing file are (in English or in French or partly in English and partly in French).

(Date)

(Signature of solicitor or of party)

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

TO: (Names and addresses of other solicitors or parties)

26 The portion of paragraph 1(2)(e) of Tariff A to the Rules before subparagraph (i) is replaced by the following:

Coming into Force

27 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

There is a need for various non-substantive, non-controversial amendments to the Federal Courts Rules (the Rules) that are beneficial to the parties and to the Courts alike. The proposed amendments provide greater clarity to the Rules by eliminating contradictions between the English and French versions and by eliminating inconsistencies between different rules. They are also intended to reduce duplication by limiting the number of paper copies to be filed in certain instances, which will reduce the administrative burden on litigants and the Courts.

Background

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

The Committee holds a plenary meeting twice each year to consider ongoing amendment projects as well as new proposals for amendments. At the plenary meeting of the Federal Courts Rules Committee held on May 6, 2011, it was agreed that the list of possible changes to the Rules would be divided into non-controversial miscellaneous amendments, addressed in the amendment process covered by this Regulatory Impact Analysis Statement, and those that were more substantive in nature (addressed via a separate amendment process).

In addition to larger reforms that are sometimes needed to the Rules, there is a need to address non-substantive, miscellaneous amendments that are beneficial to the parties and to the Courts alike. A subcommittee of the Federal Courts Rules Committee responsible for miscellaneous amendments was tasked with preparing an ongoing list of reforms that were more of a housekeeping nature submitted by members of the profession, the Registry and the Courts over the past couple of years. These reforms are intended to reduce duplication, avoid unnecessary expenses and provide greater flexibility to the parties and to the Court, thereby enhancing access to justice. They also correct inconsistencies between the English and French versions of Rules, and also amend the Rules so as to reflect the current practice of the Court.

These suggested changes have been compiled into a single package of amendments. They have been discussed, reviewed and ultimately approved by the Federal Courts Rules Committee.

Objective

The proposed amendments provide greater clarity to the Rules by eliminating contradictions between the English and French versions and by eliminating inconsistencies between different rules. They are also intended to reduce duplication by limiting the number of paper copies to be filed in certain instances.

Description

The amendments to the Rules are set out below.

Rule 21 — Heading replacement — The heading before Rule 21 is replaced by “Court Files” to be consistent with the French version “Dossiers de la cour”.

Rule 35(2)(b) — Special hearing date, amendment to provide clarity — The proposed amendment provides clarity where a motion that is “likely to be lengthy” is replaced by “likely to exceed two hours”.

Rule 35 — Motion record for request for a special hearing — Subsection (3) is added to clarify that a motion record shall accompany a request for a special hearing date.

Rule 70 — Memorandum of fact and law — Subsection (5) is added to clarify that when a respondent is filing both a memorandum of fact and law as a respondent and as an appellant by cross-appeal, such memorandums can be filed in one document (as opposed to two separate documents) of a maximum of 60 pages in length. This situation was not provided for in the Rules.

Rule 72.4 — One fewer copy for cases in the National Capital Region — Rule 72.4 is added to authorize, in certain circumstances, the filing of one fewer copy in cases proceeding solely in the National Capital Region. This will reduce the number of paper documents to be filed with the Court.

Rule 73.1 — Proof of service for constitutional question — Rule 73.1 is added to clarify that for any notice of constitutional question, the proof of service shall be filed without delay after service. Since a notice of constitutional question has to be served at least 10 days before arguments are heard by the Court, this addition will ensure that proof of service is filed before the date of the hearing.

Rule 79 — Manner of amending — This Rule is amended to correct inconsistencies between the English and French versions. The English version included the necessity to file the proof of service of an amended document, while the French version did not. Rule 79 is also amended since the English version did not include the requirement to include the date on which the amendment is made, while the French version did.

Rule 169(a) — Repealed — Rule 169(a) is repealed since it is referring to section 18 of the Citizenship Act, which was also repealed.

Rule 264 — Trial date and place — Rule 264 is modified to include circumstances where at the pre-trial conference, the date and place for trial have already been fixed. This amendment incorporates the Court's practice and clarifies that judges and prothonotaries only have to fix the date and place of trial if it was not already fixed at the time of the pre-trial conference.

Rule 300(c) — Repealed — Rule 300(c) is repealed since it is referring to subsection 14(5) of the Citizenship Act, which was also repealed.

Rules 309(1.1)(a) and (b) and 310(1.1)(a) and (b) — Applicant's and respondent's record — Rules 309(1.1)(a) and (b) and 310(1.1)(a) and (b) are amended to refer to Rule 72.4 and authorize the filing of one fewer copy in cases proceeding solely in the National Capital Region. This will reduce the number of paper documents to be filed with the Court.

Rule 314(2)(f) — Requisition for hearing — Rule 314(2)(f) is amended to clarify the language of the proceedings by adding that the requisition for hearing shall not only indicate whether the hearing will be in English or French but as well if the material will be in English or French.

Rule 316.2(1) — Summary application under Income Tax Act — Rule 316.2(1) is modified to add summary application, brought not only under section 231.7 of the Income Tax Act, but as well under section 289.1 of the Excise Tax Act, which provides for the same compliance order process as the Income Tax Act.

Rules 345(2)(a) and (b) — Number of copies — Rules 345(2)(a) and (b) are amended to refer to Rule 72.4 and authorize the filing of one fewer copy in cases proceeding solely in the National Capital Region. This will reduce the number of paper documents to be filed with the Courts.

Rule 346(3)(a) — Where cross-appeal filed — Rule 346(3)(a) is amended to allow a respondent to file a memorandum of fact and law as appellant by cross-appeal either separate from or as part of the memorandum of the respondent. This paragraph previously did not provide the option of filing only one document.

Rule 347(3)(f) — Requisition for hearing — Rule 347(3)(f) is amended to clarify the language of the proceedings by adding that the requisition for hearing shall not only indicate whether the hearing will be in English or French but as well if the material will be in English or French.

Rules 348(1)(a) and (b), 353(1), 364(1) and 365(1), 354 and 355 — Book of authorities, motion record and memorandum of fact and law — Rules 348(1)(a) and (b), 353(1), 364(1) and 365(1), 354 and 355 are amended to refer to Rule 72.4 and authorize the filing of one fewer copy in cases proceeding solely in the National Capital Region. This will reduce the number of paper documents to be filed with the Court.

Form 301 — Notice of Application — Form 301 is modified. This form is the notice of application in which it was indicated that the relief claimed by the applicant was on the following page. For accuracy, since the relief is not always on the following page, it is modified to state that the relief claimed by the applicant appears below.

Form 314 — Requisition for Hearing — Form 314 is modified to clarify the language of the proceedings by adding that the requisition for hearing shall not only indicate whether the hearing will be in English or French but as well if the material will be in English or French. The Form is also modified to include, if necessary, a request for interpretation.

Form 316.2 — Notice of Summary Application — Form 316.2 is modified. This form is the notice of summary application in which it was indicated that the relief claimed by the applicant was on the following page. For accuracy, since the relief is not always on the following page, it is modified to state that the relief claimed by the applicant appears below. This form also indicated that copies of the record had to be filed not later than 2 p.m. on the day that is two days before the day on which the application will be heard. To simplify the language in English, it is modified to “not later than 2:00 p.m. on the day that is two days before the hearing of the application”. This form is also modified to include a mention of section 289.1 of the Excise Tax Act, which provides for the same compliance order process as the Income Tax Act already mentioned in this Form.

Forms 337 and 337.1 — Notice of Appeal — Forms 337 and 337.1 are modified. These forms are notices of appeal in which it was indicated that the relief claimed by the appellant was on the following page. For accuracy, since the relief is not always on the following page, the forms are modified to state that the relief claimed by the appellant appears below. For accuracy, the forms now refer to forms 341A and 341B instead of only Form 341, which was not detailed enough.

Form 347 — Requisition for Hearing — Appeal — Form 347 is modified to clarify the language of the proceedings by adding that the requisition for hearing shall not only indicate whether the hearing will be in English or French but as well if the material will be in English or French. The Form is also modified to include, if necessary, a request for interpretation.

Paragraph 1(2)(e) of Tariff A — Court fees — Paragraph 1(2)(e) of Tariff A is modified to change the term “notice of motion” to “requisition” in accordance with Rule 155 to which this paragraph refers.

Regulatory development

Consultation

Sections 45.1 and 46 of the Federal Courts Act provide that the rules concerning the practice and procedure before the Federal Court of Appeal and the Federal Court are established by the Federal Courts Rules Committee, subject to the approval of the Governor in Council.

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

The miscellaneous amendments that are the subject of this Regulatory Impact Analysis Statement were prepublished in the Canada Gazette, Part I, on June 3, 2017. No comments were received following its publication.

Modern treaty obligations and Indigenous engagement and consultation

The miscellaneous amendments will not affect modern treaty obligations. The amended rules are intended to provide greater flexibility to all litigants before the Federal Court of Appeal and the Federal Court, including First Nations, Métis and Inuit litigants, in their choice of counsel.

Instrument choice

Pursuant to section 46 of the Federal Courts Act, the rules established by the Federal Courts Rules Committee, and codified in the 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 Rules and to provide guidance on matters of practice that are not set out fully in the rules. However, only the Rules have the force of 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. This instrument provides

Regulatory analysis

Benefits and costs

The Government, as a party to proceedings before the Federal Courts, as well as private litigants, carry costs when preparing and shipping photocopies of documents. These costs may be reduced as, under the proposed amendments, in certain cases, a party may file one less paper copy. On average, 450 new proceedings have been filed in the Federal Court of Appeal per year in the last five years, and close to 8 000 new proceedings per year in the Federal Court. Only proceedings filed solely in the National Capital Region would be affected. Furthermore, the reduced paper burden will result in reduced shipping and storage costs for the Courts Administration Service.

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

The proposal is not expected to have any cost implications.

Small business lens

Some of the affected stakeholders would be small businesses. As stated in the “Benefits and Costs” section, there would be a cost saving related to filing one less paper copy. Given the minor impact of the proposed amendments, no flexible option was considered.

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

No gender-based analysis plus (GBA+) impacts have been identified for this proposal and, therefore, no groups who fall within the GBA+ analytical framework 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