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Vol. 140, No. 38 — September 23, 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 Amending the Federal Courts Rules.) Background The purpose of the Rules Amending the Federal Courts Rules (the "Rules") is to effect the following four changes: (1) To make clear that the discretionary powers of the Court under these Rules may be exercised by a judge or a prothonotary on his or her own initiative or on motion, unless otherwise provided by the Rules. (2) To make clear that foreign judgments can be registered by prothonotaries. (3) To reinstate the power formerly given to prothonotaries under the old Rules to grant final judgments in actions or applications on consent, except, of course, where Parliament has provided that judgment can only be pronounced by a judge of the Court. (4) To require that the notice of motion filed pursuant to subsection 51(1) of the Rules appealing an order of a prothonotary be both served and filed within 10 days after the day on which the order under appeal was made, and at least 4 days before the day fixed for the hearing of the motion, so that the Court is aware that the matter is under appeal. 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. The proposed Rules are submitted for pre-publication in the Canada Gazette, Part 1. Rationale for the proposed amendments (1) Jurisdiction and power of prothonotaries With respect to the amendments made to the Rules regarding provisions relating to the jurisdiction and the powers of the prothonotaries, the rules committee considers them to be necessary for the following reasons: (a) The first amendment is really more a clarification than a significant change. The proposal is to make clear that the discretionary powers of the Court can be exercised on the initiative of a judge or a prothonotary or on motion and to make clear that prothonotaries have jurisdiction to exercise discretionary powers of the Court unless the Rules provide otherwise. (b) The second proposed amendment is required as a result of a decision of the Federal Court of Appeal which brought to light the fact that wording adopted with recent amendments to the Rules did not clearly recognize a jurisdiction that prothonotaries had, historically, exercised under previous Rules (prior to 1998). Prior to the decision in TMR Energy Limited v. State Property Fund of Ukraine, 2005 FCA 28, the use of the word "Court" in the Rules was interpreted, in practice, as including prothonotaries. Following the judgment of the Federal Court of Appeal it became evident that the wording adopted in 1998 no longer allowed for such an interpretation. The proposed amendment is to make clear that foreign judgments and awards can be registered by prothonotaries. (c) The third proposed amendment is also to reinstate a power formerly given to prothonotaries under the old Rules (prior to 1998) so as to allow them to grant final judgments in actions or applications on consent, except of course, where Parliament has provided that judgment can only be pronounced by a judge of the Court (see former rule 336). (d) The fourth proposed amendment is to amend the Rules so as to require that the notice of motion filed pursuant to subsection 51(1) of the Rules appealing an order of a prothonotary be both served and filed within 10 days after the day on which the order under appeal was made, and at least 4 days before the day fixed for the hearing of the motion, so that the Court is aware that the matter is under appeal. Currently, the Rules provide that notices of motion filed by way of an appeal are served within 10 days after the date of order under appeal but do not have to be filed in Court until 2 days before the date of the hearing of the appeal. This has created mischief in practice with the case management process as the prothonotaries are issuing orders and are proceeding to case management without being aware that a prior order is under appeal to a Federal Court judge. The proposed amendment aims to correct this situation. Technical description In order to achieve the objectives described above regarding the Rules, the rules committee proposes amendments to the following Rules: (1) Jurisdiction and power of prothonotaries Subsection 47(1) of the Federal Courts Rules is replaced in order to clarify that the discretionary powers of the Court can be exercised on the initiative of a judge or a prothonotary or on motion, unless otherwise provided by these Rules. Rule 50 of the Federal Courts Rules is amended by adding two new subsections. Proposed subsection 50(4) of the Rules makes clear that foreign judgments and awards could be registered by prothonotaries. Proposed subsection 50(5) of the Rules reinstates the power formerly granted to prothonotaries to grant final consent judgments in an action or application, except in a proceeding in respect of which an Act of Parliament expressly confers jurisdiction on a judge. Where a prothonotary is to exercise this jurisdiction, the prothonotary must be satisfied that all of the parties that will be affected by the judgment have given their consent. Subsection 51(2) of the Federal Courts Rules is replaced with a new provision so as to require that the notice of motion be both served and filed within 10 days after the day on which the order under appeal was made and at least 4 days before the day fixed for the hearing of the motion. This will allow the Court to know that the matter is under appeal. Benefits and costs There are no costs associated with these amendments. Consultation As the significance and anticipated impact of the proposed regulation determines the degree and nature of the consultation, the following information was taken into consideration. Most of the amendments sought are minor, more in the nature of clarification or reinstatement of pre-1998 Rules that were omitted in the new Rules or past practices that were not properly reflected in the Rules. All amendments aim to improve the court process while facilitating court access. The process for the registration of foreign judgments is usually not the subject of contested debate. By expressly granting the power to prothonotaries to hear and dispose of applications for the registration, recognition or enforcement of a foreign judgment the Federal Court will be able to use its judicial resources in the most efficient manner and ensure timely access to court. The reinstatement of a rule empowering a prothonotary to grant a judgment on consent will again allow the Federal Court to ensure the most efficient use of its judicial resources. Finally, the last amendment requested will correct an administrative procedural deficiency. Often, prothonotaries engaged in case management are not made aware that one of their orders is under appeal. This affects the proper management of a file. The proposed change simply requires parties appealing an order of a prothonotary to file the notice of motion in a timely manner in order to give the Court (prothonotaries) sufficient notice of a pending appeal. Prothonotaries are judicial officers of the Federal Court appointed by the Governor in Council pursuant to subsection 12(1) of the Federal Courts Act. Subsections 12(1) and (3) of the Federal Courts Act provides that the jurisdiction of a prothonotary shall be determined by the Rules. Paragraph 46(1)(h) of the Federal Courts Act provides that the rules committee has the power to make general rules and orders "empowering a prothonotary to exercise any authority or jurisdiction, subject to supervision by the Federal Court, even though the authority or jurisdiction may be of a judicial nature." The amendments were discussed at a Federal Court sub-committee, as well as at the plenary rules committee which is composed of judges from the Federal Court of Appeal and the Federal Court, practicing lawyers in either the Government or in private firms, as well as academics from various regions of the country. François Giroux, Secretary of the Rules Committee of the Federal Court of Appeal and the Federal Court, Ottawa, Ontario K1A 0H9, 613-995-5063 (telephone), 613-941-9454 (fax), Francois.giroux@fca-caf.gc.ca (email). 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 François Giroux, Secretary to the Rules Committee, Federal Court of Appeal, 90 Sparks Street, 10th Floor, Ottawa, Ontario, K1A 0H9 (tel.: 613-995-5063; e-mail: francois.giroux@ fca-caf.gc.ca). Ottawa, September 15, 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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