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Vol. 140, No. 6 — February 11, 2006 Rules Amending the Federal Courts RulesStatutory authority Federal Courts Act Sponsoring agencies Federal Court of Appeal and Federal Court REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Rules.) Background The purpose of the Rules Amending the Federal Courts Rules (the "Rules") is to effect the following four changes: (1) To amend the Rules regarding the evidence of expert witnesses to be submitted prior to pre-trial conferences. It should be clear that this would not apply to simplified actions. By way of background, the main Rule addressing the affidavits of expert witnesses, and the admissibility of that evidence, is Rule 279. Further, Rule 281 addresses the admissibility of rebuttal evidence of experts. Finally, Rule 258 pertains to pre-trial conferences. There are other Rules related to the above which will require consequential amendments. (2) To amend the Rules in order to include reasons and dissenting reasons for an order or judgment in certain records and appeal books. (3) To effect a minor amendment in order to update the Rules (Rule 17 regarding local offices). (4) To effect a minor amendment in order to harmonize the Rules (French and English in Rule 317, regarding material in the possession of a tribunal). Subject to the approval of the Governor in Council, the Federal Court of Appeal and Federal Court Rules Committee can make, amend or cancel any rule. Rationale for the proposed amendments (1) Expert witnesses With respect to the amendments made to the Rules regarding expert witnesses, the Rules Committee considers them to be necessary for the following reasons: (a) There is currently no requirement to prepare the affidavits of expert witnesses for the pre-trial conference. Some or all of such affidavits could still be admissible at trial so long as the relevant affidavits have been served on other parties at least 60 days, or 30 days in the case of rebuttal, before the trial's commencement. (b) The parties should be ready for trial at the pre-trial conference. Such readiness facilitates the setting of earlier trial dates. All expert reports need to be available at the pre-trial conference to ensure that the parties are ready for trial. (c) Full and candid settlement discussion is only possible at the pre-trial conference stage if all expert reports are available. (d) The expense inherent in obtaining expert reports may assist in drawing to the attention of litigants the benefits of settlement at an earlier stage in the process if the reports are required to be available at the pre-trial conference. (e) Judges and prothonotaries are now abridging the time for the exchange of expert reports because of concern regarding the late dates on which the reports will otherwise be provided. (2) Inclusion of reasons and dissenting reasons for an order or judgment The Rules Committee is of the view that the Rules should clearly specify that every order filed pursuant to Rules 309(2)(c), 329(1), 353(2)(a) and 406(1) should be accompanied by both the reasons for that order and any dissenting reasons. Since reasons are not necessarily issued at the same time as an order, the Committee determined that the amended Rules should refer to "any reasons, including dissenting reasons, issued in respect of it." (3) Update regarding local offices Given that there is a new local office opened in Iqaluit, Nunavut, the Rules Committee is of the view that Rule 17 should list it along with the other local offices. (4) Harmonization of English and French in Rule 317 The English version of Rule 317 indicates that a party may not request the transmission of material that is already in that party's possession. However, the French version would not appear to include language of this nature. The English version reads as follows: 317. (1) A party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party by serving on the tribunal and filing a written request, identifying the material requested. It could be argued that the current French version of Rule 317 does not convey the notion that the request can only relate to material "not in the possession of the party." Depending on which version of the Rule one follows, a federal board may be faced with requests to reproduce documents that a party already has. In the interest of greater clarity, the Rules Committee seeks to amend the French version of Rule 317 in order to make it consistent with the English. Technical description In order to achieve the objectives described above regarding the Rules, the Rules Committee proposes amendments to the following Rules: (1) Expert witnesses Subsection 258(4) of the Rules is replaced in order to provide for documents to be filed in a pre-trial conference memorandum. Subsection 258(5) is added in order to address the content of expert affidavits or statements. Rule 262 of the Rules is replaced to provide for pre-trial conference memoranda. Paragraph 263(c) of the Rules is replaced, such that the rule may specify the scope of a pre-trial conference. Rule 265 of the Rules is renumbered as subsection 265(1) and amended in order to account for the service of expert affidavits or statements. Paragraph 279(b) of the Rules is replaced, to provide for the introduction of expert evidence at the trial of an action. Rule 281 is replaced in order to address the admissibility of rebuttal evidence. The portion of subsection 299(1) of the Rules before paragraph (a) is replaced, in order to provide for evidence adduced by way of affidavit in the trial of a simplified action. Amendments to Rule 299 are made by the addition of subsection (1.1), regarding the admissibility of expert evidence, and the addition of subsection (1.2), with respect to the admissibility of rebuttal evidence. Subsection 299(3) of the Rules is replaced in order to address reply evidence. (2) Inclusion of reasons and dissenting reasons for an order or judgment Paragraph 309(2)(c) of the Rules is amended to include "reasons, including dissenting reasons, issued in respect of that order" in terms of the content of the applicant's record. The portion of subsection 329(1) of the Rules before paragraph (a) is replaced in order to include affidavits filed in an application for registration of a foreign judgment, and "any reasons, including dissenting reasons, issued in respect of it." Paragraph 344(1)(c) of the Rules regarding the content of the appeal book is amended to include "any reasons, including dissenting reasons, issued in respect of it." Amendments are made to paragraph 353(2)(a) of the Rules regarding the content of the motion record in the context of Motions for leave to appeal, so as to include "any reasons, including dissenting reasons, issued in respect of that order." Amendments are made to subsection 406(1) of the Rules with respect to obtaining a notice of appointment for assessment, so as to include "any reasons, including dissenting reasons, issued in respect of that order." Amendments are made to paragraph 3(a) of Form 327 in order to specify that "an exemplified or certified copy of the foreign judgment, and any reasons, including dissenting reasons, issued in respect of it" may be included as documentary evidence to be relied on in support of a Notice of Application for registration of a foreign judgment. (3) Update regarding local offices Rule 17 of the Federal Courts Rules is amended to include the new local office in Iqaluit, along with the other local offices listed therein. (4) Harmonization of English and French in Rule 317 The French version of Rule 317 is amended as follows to make it consistent with the English, with regard to material in the possession of a federal board: 317(1) Toute partie peut demander la transmission des documents ou des éléments matériels pertinents quant à la demande, qu'elle n'a pas mais qui sont en la possession de l'office fédéral dont l'ordonnance fait l'objet de la demande, en signifiant à l'office une requête à cet effet puis en la déposant. La requête précise les documents ou les éléments matériels demandés. Benefits and costs There are no costs associated with these amendments. Consultation The Federal Courts Rules' Committee issued a discussion paper entitled Service of Expert Witnesses' Affidavits Prior to the Pre-Trial Conference in September 2004. This working paper raised the issue of making the admissibility of expert witnesses' evidence conditional upon the service of affidavits, setting out the proposed evidence of the experts before the holding of the pre-trial conference under the Federal Court Rules, 1998. The discussion paper, along with a Notice to the Profession by the Honourable John D. Richard, Chief Justice of the Federal Court of Appeal, were distributed to the legal community, including hundreds of lawyers across Canada, as well as provincial and federal organizations such as bar associations. The discussion paper was also posted on the Web sites of both the Federal Court of Appeal and the Federal Court, and is still available under the heading "Bulletins — Notices to the Profession." Written comments on the discussion paper were requested by October 15, 2004. All comments received during that period were considered in detail by the Rules Committee in the development of the proposed amendments to the rules regarding expert witnesses. With respect to the other consequential amendments regarding the inclusion of reasons and any dissenting reasons for orders or judgment, the local office in Iqaluit, and the harmonization of Rule 317, the plenary Rules Committee was consulted and was of the view that they should be amended for greater clarity. Contact Chantelle Bowers, Secretary, Rules Committee of the Federal Court of Appeal and the Federal Court, Ottawa, Ontario K1A 0H9, (613) 995-5063 (telephone), (613) 941-9454 (fax), chantelle. bowers@fca-caf.gc.ca (email). PROPOSED REGULATORY TEXT Notice is hereby given, pursuant to paragraph 46(4)(a) (see footnote a) of the Federal Courts Act (see footnote b), that the rules committee of the Federal Court of Appeal and the Federal Court, pursuant to section 46 (see footnote c) of that Act, proposes to make the annexed Rules Amending the Federal Courts Rules. Interested persons may make representations with respect to the proposed Rules within 60 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Chantelle Bowers, Secretary to the Rules Committee, Federal Court of Appeal, Ottawa, Ontario K1A 0H9. Ottawa, February 11, 2006 RAYMOND GUENETTE
S.C. 1990, c. 8, s. 14(4) S.C. 2002, c. 8, s. 14 S.C. 2002, c. 8, s. 44 SOR/98-106; SOR/2004-283
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