Vol. 140, No. 46 — November 18, 2006

Rules Amending the Federal Courts Rules

Statutory 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 changes:

(1) To align the status review and case management rules with the current practice of the Federal Court of Appeal and the Federal Court in order to enhance the efficiency of the courts.

(2) To amend the Rules to allow one or more prothonotaries to be appointed as case management judge.

(3) To amend the Rules to allow the Court to order at any time that a case proceed as a specially managed proceeding.

(4) To make an amendment stating that the case management judge or prothonotary referred to in paragraph 383(c) can rule on any matter raised before the specially managed proceeding is assigned, unless the Court directs otherwise, and to allow the judge or prothonotary to order a status review at any time.

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. Alignment of rules

The rules committee feels that the new rules are needed in order to

(a) streamline the status review and case management process;

(b) align the Rules with the current practice of the Federal Court of Appeal and the Federal Court;

(c) clarify what is expected of the parties in a status review by incorporating into the rules the test established in Baroud v. Canada (Min. of Citizenship & Immigration) (1998), 160 F.T.R. 91 (T.D.) and providing all the parties with a schedule for filing written representations;

(d) catch actions and applications that are not moving as early as possible in the process and conduct a status review;

(e) avoid the status review process for actions and applications that are moving but are experiencing delays; and

(f) encourage parties to move actions and applications along in a timely manner.

2. Assignment of two or more prothonotaries to case management

Currently, prothonotaries conduct over 90% of the Court's case management. Prothonotaries are not itinerant and are thus more readily accessible than a judge of the Court. Moreover, given the volume of the case management files before them, the prothonotaries have an increasing expertise in this area.

It was also noted by the prothonotaries that some parties are uncertain about whether they should address correspondence to the case management judge or to the prothonotary assisting the judge. Indeed, in some instances, it appears that parties have attempted to circumvent directions issued by a prothonotary by corresponding with the case management judge.

One concern that has been raised is whether the appointment of a prothonotary as case management judge will result in delay where motions outside the jurisdiction of a prothonotary are brought during the case management process. The bulk of these motions are motions seeking summary judgment or injunctive relief. Under the current system, a prothonotary would have a case management judge willing to deal with such motions. Delay may result if a judge is not available in such instances. This concern could be addressed administratively.

3. Order to proceed as a specially managed proceeding

In order to move a proceeding along in a timely manner, the Court may at any time order that it should be handled as a specially managed proceeding.

4. Powers of case management judge or prothonotary

The use of the phrase "shall deal with all matters . . ." gives rise to an apparent requirement that the designated case management judge or prothonotary assigned under paragraph 383(c) deal with all motions (R. 385(1)(d)) and pre-trial proceedings (R. 385 (1)(c)) before the assignment of a trial date.

This issue was addressed in Trevor Nicholas Construction Co. Ltd. v. The Queen, 2004 F.C. 238, where Justice Gibson concluded at paragraph 14 that Rule 385(1) imposes "a mandatory obligation on case management judges and prothonotaries to deal with all matters that arise prior to trial or hearing and that come before them." He went on to say, "I do not read that rule as eliminating jurisdiction of other judges and prothonotaries on such matters that come before them when it would facilitate the work of the Court for them to deal with those matters."

While this decision appears to address the issue raised by the word "shall," it would be preferable to clarify the rule by building in an explicit power to delegate when such delegation is required.

Technical description

To meet the above-mentioned objectives of the Rules Amending the Federal Court Rules, the rules committee proposed amending the following rules:

Rules 380, 381 and 382 are replaced so that they state that they apply only to the Federal Court.

Paragraph 380(1)(a) is replaced so that it specifies the circumstances in which the administrator will issue a notice of status review in an action.

Paragraph 380(1)(b) is replaced so that it specifies the circumstances in which the Court will order the action to continue as a specially managed proceeding.

Subsection 380(2) is replaced so as to provide that the Court may, where 180 days have elapsed since the issuance of the notice of application and no requisition for hearing has been filed, issue a notice of status review to the parties or order that the application continue as a specially managed proceeding.

Subsection 380(3) is replaced so as to provide that subsections 380(1) and 380(2) do not apply to an action or application that continues as a specially managed proceeding or that is subject to a motion to that effect.

Rule 381 is replaced so as to provide that, subsequent to an order that the action or application proceed as a specially managed proceeding and where no order provided for in Rule 385 has been made, the applicant serves and files a proposed timetable within 20 days following the date of the order.

Subsection 382(1) is replaced so as to provide for submission of the applicant's representations stating the reasons why the proceeding should not be dismissed for delay.

Subsection 382(2) is replaced so as to provide that the defendant may file representations within 7 days after the applicant's representations are filed.

The new subsection 382(3) states that the applicant may submit a reply within 4 days after the defendant files representations.

The new subsection 382.1(1) replaces subsection 380(2) and states that, unless the Court directs otherwise, the status review is based solely on the written representations of the parties.

The new subsection 382.1(2) replaces subsection 382(2) and sets out the powers of the Court regarding status review.

The new Rules 382.2, 382.3 and 382.4 deal with status review in the Federal Court of Appeal.

Rule 382.2 states that the Court may issue a notice of status review to the parties if 180 days have elapsed since the issuance of the notice of application or the notice of appeal and no requisition for hearing has been filed.

Subsection 382.3(1) states that if the party in default is the applicant or the appellant, that party shall, within 30 days following the issuance of the notice of status review, file its representations stating the reasons why the proceeding should not be dismissed for delay.

Subsection 382.3(2) states that if the party in default is the defendant or the respondent, that party shall, within 30 days following the issuance of the notice of status review, file its representations stating the reasons why a default judgment should not be entered.

Subsection 382.3(3) states that the other party may file representations within 10 days after representations are filed by the party in default.

Subsection 382.3(4) states the definition of "party in default."

Subsection 382.4(1) states that, unless the Court directs otherwise, the status review before the Federal Court of Appeal is based solely on the written representations of the parties.

Subsection 382.4(2) sets out the powers of the Court regarding status review.

Paragraph 383(b) is replaced so as to provide that one or more prothonotaries may be appointed as case management judge.

Paragraph 383(c) is replaced so as to provide that a prothonotary may be assigned to assist in the management of a proceeding.

Rule 384 is replaced so as to provide that the Court may at any time order a case to proceed as a specially managed proceeding.

The section of subsection 385(1) preceding paragraph (a) is replaced so as to provide that, unless the Court directs otherwise, the case management judge or prothonotary shall deal with all matters that arise prior to the trial or hearing of a specially managed proceeding.

Subsection 385(2) is replaced so as to provide that the case management judge or prothonotary may order a status review at any time.

Benefits and costs

There are no costs associated with these amendments.

Consultation

Paragraph 46(1)(h) of the Federal Courts Act states that the rules committee may make orders "empowering a prothonotary to exercise any authority or jurisdiction, subject to supervision by the Federal Court."

The proposed amendments were discussed by a rules sub-committee, as well as by the plenary rules committee, which is composed of judges from the Federal Court of Appeal and the Federal Court, practising lawyers in either the Government or in private firms, and academics from various regions of the country.

Contact

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).

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 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, November 7, 2006

RAYMOND P. GUENETTE
Acting Chief Administrator
Courts Administration Services

5. Form 381 of the Rules is replaced by the following:

TO THE PARTIES AND THEIR SOLICITORS:

IN THIS ACTION, MORE THAN 180 DAYS HAVE ELAPSED since the filing of the statement of claim and no statement of defence has been filed and no motion for default judgment is pending. ACCORDINGLY

(or)

IN THIS APPLICATION, MORE THAN 180 DAYS HAVE ELAPSED since the issuance of the notice of application and no requisition for a hearing date has been filed. ACCORDINGLY

THE PLAINTIFF (OR APPLICANT) IS REQUIRED TO SERVE AND FILE, within 15 days of the date of this notice, representations stating the reasons why the proceeding should not be dismissed for delay. The representations shall include a justification for the delay and a proposed timetable for the completion of the steps necessary to advance the proceeding in an expeditious manner.

THE DEFENDANT (OR RESPONDENT) MAY SERVE AND FILE representations within seven days after being served with the representations of the plaintiff.

THE PLAINTIFF (OR APPLICANT) MAY SERVE AND FILE a reply within four days after being served with the representations of the defendant (or respondent).

___________________________
(Signature of judge, prothonotary
or Administrator)

TO THE PARTIES AND THEIR SOLICITORS:

IN THIS APPLICATION (OR APPEAL) MORE THAN 180 DAYS HAVE ELAPSED since the issuance of the notice of application (or appeal) and no requisition for a hearing has been filed and (insert the party in default) is in default of _____________________________. ACCORDINGLY

THE APPLICANT (OR APPELLANT) IS REQUIRED TO SERVE AND FILE, within 30 days after the issuance of this notice, representations stating the reasons why the proceeding should not be dismissed for delay. The representations shall include a justification for the delay and a proposed timetable for the completion of the steps necessary to advance the proceeding in an expeditious manner.

(or)

THE RESPONDENT IS REQUIRED TO SERVE AND FILE, within 30 days after the issuance of this notice, representations stating the reasons why default judgment should not be entered. The representations shall include a justification for the delay and a proposed timetable for the completion of the steps necessary to advance the proceeding in an expeditious manner.

THE OTHER PARTY MAY SERVE AND FILE representations within 10 days after being served with the representations of the party that is in default.

_______________________
(Signature of judge)

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

[46-1-o]

Footnote a

S.C. 1990, c. 8, s. 14(4)

Footnote b

S.C. 2002, c. 8, s. 14

Footnote c

S.C. 2002, c. 8, s. 44

Footnote 1

SOR/98-106; SOR/2004-283

NOTICE:
The format of the electronic version of this issue of the Canada Gazette was modified in order to be compatible with hypertext language (HTML). Its content is very similar except for the footnotes, the symbols and the tables.

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