Rules Amending the Federal Courts Rules (Limited-Scope Representation): SOR/2021-246

Canada Gazette, Part II, Volume 155, Number 26

Registration
SOR/2021-246 December 13, 2021

FEDERAL COURTS ACT

P.C. 2021-1004 December 9, 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 (Limited-Scope Representation).

Ottawa, November 3, 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 Actfootnote b, a copy of the proposed Rules Amending the Federal Courts Rules (Limited-Scope Representation), substantially in the annexed form, was published in the Canada Gazette, Part I, on April 10, 2021 and interested persons were invited to make representations concerning the proposed Rules;

Therefore, Her Excellency the Governor General 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 (Limited-Scope Representation), made by the rules committee of the Federal Court of Appeal and the Federal Court.

Rules Amending the Federal Courts Rules (Limited-Scope Representation)

Amendments

1 The definitions address for service and solicitor of record in rule 2 of the Federal Courts Rules footnote 1 are replaced by the following:

address for service
means a party’s address for service under rule 126.1. (adresse aux fins de signification)
solicitor of record
means a solicitor of record as described in rule 123 or 124. (avocat inscrit au dossier)

2 Paragraph 66(2)(c) of the Rules is replaced by the following:

3 Rule 119 of the Rules is renumbered as subsection 119(1) and is amended by adding the following:

Limited-scope representation

(2) Except in respect of a party referred to in rule 121, representation by a solicitor may be limited in scope to only those aspects of the proceeding that are within a solicitor’s mandate that is agreed to by the individual and the solicitor.

4 Rules 122 to 124 of the Rules are replaced by the following:

Rights and obligations

122 Subject to paragraphs 146(1)(b) and 152(2)(a) and unless the Court orders otherwise,

Solicitor of Record

Solicitor of record

123 (1) If a party takes a step in a proceeding by filing or serving a document signed by a solicitor, that solicitor is the solicitor of record for the party.

Limited-scope representation

(2) If a solicitor is providing limited-scope representation to a party, the solicitor is the solicitor of record only in respect of those aspects of the proceeding that are within the solicitor’s mandate.

Appointment, change and removal of solicitor of record

124 (1) Subject to subsections (2) and (3), a party may appoint a solicitor, or change or remove its solicitor of record, by serving and filing a notice in Form 124A, 124B or 124C, as the case may be.

Limited-scope representation — notice of appointment

(2) A party may appoint a solicitor to provide limited-scope representation by serving and filing a notice of limited-scope representation, in Form 124D, that is signed by the party and the solicitor and that sets out

Limited-scope representation

(3) However, with leave of the Court, a party may appoint a solicitor to provide limited-scope representation before serving and filing the notice referred to in subsection (2).

Request for leave

(4) The request for leave shall be made in open court by the solicitor and shall summarize the scope of their mandate. If the request is granted, the party shall file the notice referred to in subsection (2) within two days after the day on which leave is granted.

Ceasing limited-scope representation

(5) A solicitor who is providing limited-scope representation to a party may cease representation of the party by serving a notice to cease limited-scope representation, in Form 124E that is signed by the solicitor, on that party and all other parties to the proceeding and by filing the notice.

5 Rule 126 of the Rules is replaced by the following:

Cessation of representation

126 A solicitor is deemed not to represent a party if the solicitor dies or ceases to act for the party for any of the following reasons:

6 The Rules are amended by adding the following before Rule 127:

Address for Service

Party’s address for service

126.1 (1) Subject to subsections (2) and (3), a party’s address for service is

Exception — limited-scope representation

(2) If a party is represented by a solicitor who is providing limited-scope representation and who has agreed to accept the service of documents relating to their mandate, the party’s address for service in relation to those documents is the address set out for that purpose in the notice of limited-scope representation.

Exception — Crown or Attorney General of Canada

(3) The address for service for the Crown or the Attorney General of Canada is the address of the office of the Deputy Attorney General of Canada in Ottawa.

7 Paragraph 139(1)(d) of the Rules is replaced by the following:

8 The Rules are amended by adding the following after rule 148:

Service — limited-scope representation

148.1 If a party is represented by a solicitor who is providing limited-scope representation and who has agreed to accept the service of documents relating to their mandate, all documents relating to the mandate shall be served on the solicitor. All other documents shall be served on the party.

9 Rule 209 of the Rules is repealed.

10 Rule 340 of the Rules is replaced by the following:

Solicitor of record and address for service

340 In an appeal from the Federal Court to the Federal Court of Appeal, the solicitor of record and the address for service of a party on the appeal shall be the same as they were in the first instance, unless the solicitor of record in the first instance provided limited-scope representation and they served and filed a notice under subsection 124(5).

11 The Rules are amended by adding the following after Form 124C:

FORM 124D

Rule 124

Notice of Limited-Scope Representation

(General Heading — Use Form 66)

Notice of Limited-Scope Representation

The plaintiff (or as the case may be) has appointed (name) as solicitor to provide limited-scope representation in the proceeding.

1 SOLICITOR’S MANDATE

The solicitor’s representation of the plaintiff (or as the case may be) in this proceeding is limited to the following subject-matter: (Select all that are applicable and provide a description of the services to be provided, including any scheduled appearances.)

☐ Application for leave filed under the Federal Courts Citizenship, Immigration and Refugee Protection Rules

(Specify)

☐ Case management conference, alternate dispute resolution (including mediation)

(Specify)

☐ Motion(s)

(Specify)

☐ Oral submissions at a hearing (other than those related to matters above)

(Specify)

☐ Appeals

(Specify)

☐ Other matters relating to the proceeding

(Specify)

2 DESIGNATION FOR SERVICE OF DOCUMENTS

☐ SERVICE ON SOLICITOR (Service of documents relating to the solicitor’s mandate is to be made on the solicitor.)

Address: (If service is to be made on the solicitor)

☐ SERVICE ON PARTY (Service of documents relating to the solicitor’s mandate is to be made on the party.)

3 DECLARATIONS

The undersigned solicitor and plaintiff (as the case may be) each declare that this notice accurately describes the solicitor’s mandate and the arrangements for the service of documents relating to that mandate.

(Date)


(Signature of solicitor of record)

(Name, address, telephone and fax numbers of solicitor of record)


(Signature of plaintiff (as the case may be)

(Name, address, telephone and fax numbers of plaintiff (as the case may be)

TO: (Name and address of other solicitors or parties)

FORM 124E

Rule 124

Notice to Cease Limited-Scope Representation

(General Heading — Use Form 66)

Notice to Cease Limited-Scope Representation

TAKE NOTICE THAT I, (name of solicitor), solicitor, am no longer providing (name of party) with limited-scope representation and I have ceased to represent them.

(Date)


(Signature of solicitor of record)

(Name, address, telephone and fax numbers of solicitor of record)

TO: (Name and address of other solicitors or parties)

12 The table to Tariff B of the Rules is amended by adding the following in numerical order:
Item Assessable Service Number of Units
Column I Column II Column III Column IV Column V
29 Notice of limited-scope representation 1 1 1 1 1

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.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Rules.)

Issues

Amendments are made to the Federal Courts Rules (“Rules”) to provide litigants with more flexibility in the scope of mandate for their lawyer. The Rules allowed a litigant only to be self-represented or else represented by a lawyer with an unlimited mandate (i.e. for the whole proceeding in Federal Court of Appeal or Federal Court), which wasn’t always feasible for litigants with limited financial means. As a result, some litigants who wanted a representative were unable to retain a lawyer to represent them in Court.

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 of the Federal Courts Act, 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 meeting of November 14, 2014, the Rules Committee approved the publication of a discussion paper regarding “unbundling of legal services,” an issue that had been discussed within the Rules Committee in 2013 and 2014 (see the discussion paper — Providing for Limited Scope Representation in the Federal Court and the Federal Court of Appeal). The Rules Committee reviewed public feedback at its May 29, 2015, meeting and decided to proceed with a drafting project to amend the Rules to allow limited-scope representation in the Federal Court of Appeal and the Federal Court. Drafting questions were addressed at meetings on November 27, 2015, and June 3, 2016, a draft set of amendments was then reviewed at the meeting on October 28, 2016, and then following the pause in Rules Committee meetings noted above, an updated draft was endorsed at the Rules Committee’s meeting on November 29, 2019, and then pre-published on April 10, 2021, in the Canada Gazette Part I. The public comments were reviewed by the Rules Committee at its meeting on June 18, 2021, and subject to the revisions as noted below, the Rules Amending the Federal Courts Rules (Limited-Scope Representation) were then approved by the Rules Committee at its meeting on September 10, 2021.

Objective

The amendments to the Rules add an option for a party to be represented by a lawyer (a “solicitor”) on a defined, limited mandate (i.e. for only part of the Court proceeding). This will increase the proportion of proceedings in the Federal Court of Appeal and the Federal Court in which litigants are represented by a lawyer, whether on a limited or unlimited basis. Allowing litigants to have a lawyer represent them for only part of a legal proceeding will provide litigants with better access to justice while also making the Court process more efficient.

Description

The amendments to the Rules are set out below.

Rule 2 — Definition of “address for service” and “solicitor of record”: Rule 2 of the Federal Courts Rules sets out definitions of key words and phrases that appear throughout the Rules. The definition of solicitor of record is changed to refer to the revised Rules 123 and 124, which govern representation by a solicitor. The definition of address for service refers to the new Rule 126.1, which governs the address for delivery of documents depending on whether the party is represented by a solicitor or not.

Rule 66 — Requirements for content of a document: Rule 66 sets out the required content of any document prepared for use in a proceeding, including the title of the document, its date, and the name, address, telephone number and fax number of the party or the party’s solicitor. The amendment to Rule 66 makes reference to the new definition of address for service at Rule 2.

Rule 119 — Representation of Parties: Rule 119 sets out a party’s options for representation in a Court proceeding. The amendment to the Rule adds a new option for representation by a solicitor to be limited in scope.

Rule 122 — Rights and obligations: Rule 122 sets out the rights and obligations of a party regarding actions under the Rules that are permitted or required to be done in a proceeding. The amendment to the Rule clarifies the rights and obligations of a party who is represented by a solicitor on a limited mandate.

Rules 123 and 124 — Solicitor of Record: Rules 123 and 124 set out the manner in which a solicitor is deemed to be solicitor of record in a Court proceeding, as well as the procedure for change or removal of a solicitor of record. The amendments to Rules 123 and 124 provide for these same matters with respect to a solicitor on a limited mandate, including a requirement that the solicitor provide formal notice to cease representation.

Rule 126 — Solicitor of record ceasing to act: Rule 126 sets out the conditions under which a party is deemed not to be represented by a solicitor of record. The amendment to Rule 126 adds to the list the situation where a solicitor on a limited mandate completes that mandate by filing a notice to cease limited-scope representation.

Rule 126.1 — Party’s address for service: new Rule 126.1 provides the option, for the duration of a solicitor’s limited mandate, to have the opposing party’s documents served either on the party directly or instead on the solicitor who is on a limited mandate.

Rule 139(1)(d) — Manner of service: Rule 139(1)(d) sets out the manner for service of a document on a party. The amendment to the Rule reflects the revised definition of solicitor of record and the option for a solicitor on a limited mandate.

Rule 148.1 — Service during limited-scope representation mandate: new Rule 148.1 further clarifies requirements for service of documents during the period that a solicitor is providing limited-scope representation.

Rule 209 — Solicitor of record for preliminary objections: current Rule 209 clarifies the status of a solicitor who appears for a party with respect to a preliminary objection at the beginning of a legal proceeding. This exceptional situation can be addressed by the new limited-scope representation rule, so Rule 209 is repealed.

Rule 340 — Solicitor of record and address for service: under the current Rule, where a party appeals a Federal Court decision in the Federal Court of Appeal, the solicitor of record in the Federal Court is deemed to continue as solicitor of record in the Federal Court of Appeal. The amendment to Rule 340 provides that where the solicitor in the Federal Court is on a limited mandate, the solicitor is deemed to continue as solicitor of record in the Federal Court of Appeal unless the solicitor files a notice to cease limited-scope representation.

Form 124D — Notice of Limited-Scope Representation: the new form is to be used by litigants who wish to be represented by a solicitor on a limited mandate.

Tariff B — Counsel Fees and Disbursements Allowable on Assessment: following completion of a Court proceeding, a party seeking an assessment of costs in accordance with Tariff B shall prepare and file a bill of costs, with reliance on the assessable services set out in Tariff B. The amendment adds a new item that could be assessed, related to the preparation of a Notice of Limited-Scope Representation (per Form 124D).

Regulatory development

Consultation

The Rules Committee published a discussion paper about the unbundling of legal services on November 26, 2014 (see the discussion paper — Providing for Limited Scope Representation in the Federal Court and the Federal Court of Appeal). The Rules Committee reviewed public feedback at its May 29, 2015, meeting and, given the strong support for the proposal, decided to proceed with a drafting project to amend the Rules to allow limited-scope representation in the Federal Court of Appeal and the Federal Court.

The Federal Courts Act provides that the rules concerning the practice and procedure before the Federal Court of Appeal and the Federal Court are made by the Rules Committee, subject to the approval of the Governor in Council.

The Rules Amending the Federal Courts Rules (Limited-Scope Representation) were prepublished on April 10, 2021, in the Canada Gazette, Part I, followed by a 60-day comment period, in accordance with subsection 46(4) of the Federal Courts Act, and the public comments were reviewed by the Rules Committee at its meeting on June 18, 2021. Comments were received from members of the Bar in favour of the proposed amendments, subject to a few issues that can be summarized as follows:

In addition, the Rules Committee also decided to change the coming in force date of these amendments. The amendments originally were set to come in force upon registration. Instead, the date is changed to one month after registration in order to provide notice to stakeholders of the coming in force of the new Rules before they are in force.

With the above-noted revisions, the Rules amendments were approved by the Rules Committee at its meeting on September 10, 2021.

Modern treaty obligations and Indigenous engagement and consultation

The amendments will have no impact on modern treaty obligations. The amended Rules are intended to provide greater flexibility for all litigants in the Federal Court of Appeal and the Federal Court, including litigants who are First Nations, Métis, or Inuit, regarding their choice of lawyer.

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

The Rules allowed a party only to be self-represented or else fully represented by a lawyer, yet some litigants cannot afford a lawyer’s fees for an unlimited mandate (that is, for the whole Court proceeding). Public research studies show that the primary reason for self-representation is financial, and other research demonstrates that representation by a lawyer is a key factor driving successful litigation outcomes.

The amendments to the Rules add an option for a party to be represented by a lawyer on a defined, limited mandate (that is, for only part of the Court proceeding). The amendments would therefore allow a litigant to be represented by a lawyer in a proceeding for which the litigant would otherwise proceed alone. This increases their chances of a successful litigation outcome.

By way of example, litigants might choose to be represented by a lawyer on a limited-scope mandate in an immigration (IMM) proceeding in the Federal Court for the application for leave (and possibly including a motion for stay of deportation, which is sometimes filed together with an application for leave). For these initial steps, it would be less costly to retain a lawyer for the limited mandate, rather than a broader and more expensive retainer with a lawyer for all possible steps that might be needed in an IMM file. If leave were granted by the Court, the file would proceed to a full oral hearing on the merits, and the litigant and their lawyer could then negotiate a second retainer, or possibly be granted legal aid at that stage.

Representation by a lawyer would also facilitate a more efficient proceeding for the Court, Registry, and litigants, because self-represented litigants often have limited understanding of and experience with Court practice and Rules. Furthermore, in addition to providing benefits to the judicial process overall, the amendment provides additional opportunities for lawyers, who could offer clients a limited-scope retainer that would not have been previously allowed under the Rules. Some empirical research is available with respect to limited-scope representation initiatives in other jurisdictions, indicating overall satisfaction by stakeholders, though with some qualification from lawyers, some of whom think that a full retainer would provide better results for their client and the justice system.

The proposal is not expected to have any cost implications.

Small business lens

Analysis under the small business lens determined that the regulatory changes will not impact small businesses in Canada.

One-for-one rule

The one-for-one rule does not apply, as there is no incremental change in the administrative burden on business.

Regulatory cooperation and alignment

Some provincial jurisdictions have already moved ahead with rules changes or pilot projects that meet the same objective as set out above, including British Columbia, Ontario and Alberta. Although there is policy alignment between the current proposal and the initiatives in these provinces, it is noted that each province has adopted a unique framework that fits within their particular civil rules of procedure. Therefore, given that each jurisdiction has unique Court Rules, there are differences in each jurisdiction’s implementation of the limited-scope representation (also known as “unbundling”) framework, even though there is general policy alignment.

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 amendments to the Rules are intended to provide greater flexibility for litigants in the Federal Court of Appeal and the Federal Court, including litigants who fall within the gender-based analysis plus (GBA+) analytic framework. For example, the limited-scope representation option would provide greater flexibility for litigants with limited financial means to hire a lawyer to represent them in Court.

Implementation, compliance and enforcement, and service standards

The amended 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