Vol. 143, No. 24 — June 13, 2009

Rules Amending the Federal Courts Rules (Procedural Amendments)

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.)

Issue and objectives

At a plenary meeting of the Rules Committee of the Federal Court of Appeal and the Federal Court (the “Federal Courts Rules Committee) held on November 28, 2008, the following three minor amendments to the Federal Courts Rules were presented to the Committee and approved in principle:

Subsection 127(1)

Members of the profession have indicated that, with the creation of two distinct courts under the Courts Administration Service Act in 2003, there may be confusion with respect to the service of a notice of appeal from the Federal Court to the Federal Court of Appeal (subsection 127(1) of the Federal Courts Rules). The new Rule reflects a Direction issued by Chief Justice Richard of the Federal Court of Appeal on November 5, 2008, in which he stated the following: “The exception set out in Rule 127(1) concerning service of a notice of appeal from the Federal Court to the Federal Court of Appeal is to be disregarded pending an amendment to the Federal Courts Rules and service is to be effected in accordance with Rule 133.”

Rule 395 and subsection 161(3)

The Registry’s current practice is to transmit orders immediately to the parties by facsimile. This ensures the timely receipt of the order particularly where time limits are involved. In March 2008, the Federal Court of Appeal and the Court Martial Appeal Court of Canada commenced a pilot project which allowed parties, upon request, to have an order transmitted to them by electronic mail. In November 2008, the Federal Court also implemented this new system of transmitting orders to parties by electronic mail, upon request. However, rule 395 as it is currently worded requires the Registry to send a hard copy of the order to the parties by registered mail even when a copy has already been delivered by electronic means. As a result of this requirement, parties receive the same order twice and this duplication has caused confusion as to whether there has been a change or amendment to the order.

A similar amendment is also needed for subsection 161(3) to clarify that on the filing of a referee’s report in the context of a reference, the Administrator needs the flexibility to send without delay a copy of it to all parties by electronic means, including facsimile and electronic mail.

Rules 306/307

The amendments to rules 306 and 307 pertain to the service and filing of affidavits and documentary exhibits. The proposed amendments would require a party to serve its affidavits and documentary exhibits on the opposing party and file proof of service in the Registry, instead of filing the affidavit itself. The interplay between rules 306 and 307, and rules 309 and 310 leads to unnecessary duplication and increased expense for the parties, particularly where affidavits are voluminous. Reducing the amount of paper filed also reduces the storage space required by the Courts and the amount of work performed by front-line registry officers.

The proposed procedural amendments consist of minor changes that the Federal Courts Rules Committee believes will assist members of the profession and of the public to better understand the Federal Courts Rules as a whole, and are in keeping with the general principle enunciated in rule 3, that “[t]hese Rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.”

It is important to note that these amendments ensure the integrity of the Court file, which is the primary concern of the Courts and the Registry.

Description and rationale

The proposed amendments provide greater flexibility to the parties and to the Court, thereby enhancing access to justice.

Amendment to subsection 127(1) clarifies that an originating document that has been issued, other than in an ex parte application under rule 327, shall be served personally in a manner set out in rules 128 to 133.

With respect to the amendments to subsection 161(3) and rule 395, the Federal Courts Rules Committee is of the view that the interest of justice would be better served by the incorporation of rules which would allow the Registry the flexibility to transmit orders by electronic means, in addition to the traditional means by registered mail. This would still allow for a percentage of orders to be sent by registered mail, in cases where the Registry is unable to obtain proof of receipt or where an order is to be transmitted to a lay litigant, etc. The amendment to the Rules ensures that appropriate proof of receipt of the order is placed on the file.

This will make the process of transmitting orders more efficient and less costly. It will also help to avoid any unnecessary duplication of efforts as well as any confusion which parties may have when receiving notification of the same order more than once.

Costs for registered mail incurred by the Courts Administration Service for 2008 were approximately $200,000. Based on this figure, if 705 of registered mail could be transmitted instead by electronic means, an annual savings of approximately $140,000 could be realized by the Registry.

Finally, the proposed amendments to rules 306 and 307 eliminate the requirement to file affidavits separately. It would require a party to serve its affidavits and documentary exhibits on the opposing party and file proof of service in the Registry, instead of filing the affidavit itself.

The supporting material that a party intends to rely on, along with the original copies of the affidavits must now be filed in the parties’ application record in accordance with rules 309 and 310. The affidavit will be deemed to have been filed upon the filing of the proof of service. The responsibility for raising any technical problems with an affidavit served rests with the parties who may bring any such issues to the attention of the other party and/or the Courts.

In eliminating the requirement to file affidavits separately, the Courts Administration Service would realize a cost savings on the time of its front-end registry officers to deal with these affidavits. An additional savings will be realized by a reduction of requisite storage space. The size of affidavits varies, but many tend to be quite voluminous. Parties would also save time, paper and courier/postage costs, by not having to file their affidavits in the first instance.

Technical description

To meet the above-mentioned objectives of the rules, the Rules Committee proposes amendments to the following rules:

Subsection 127(1) regarding the service of originating documents is amended to clarify that an originating document that has been issued, other than in an ex parte application under rule 327, shall be served personally in a manner set out in rules 128 to 133.

Subsection 161(3) of the Rules is amended to clarify that on the filing of a referee’s report in the context of a reference, the Administrator shall send without delay a copy of it to all parties by three means: registered mail; by electronic means, including facsimile and electronic mail; or as directed by the Chief Justice. Subsection 161(4) stipulates that if the report is transmitted electronically, the Administrator shall confirm receipt by the party and place proof of that receipt on the Court file.

Rule 306 is amended to clarify the rules regarding service and filing proof of service of the Applicant’s affidavits. Within 30 days after issuance of a notice of application, an applicant shall serve its supporting affidavits and documentary exhibits and file proof of service. The affidavits and exhibits are deemed to be filed when the proof of service is filed in the Registry. The original affidavits shall be filed in the applicant’s record.

Rule 307 is amended to clarify the rules regarding the service and filing proof of service of the Respondent’s affidavits. Within 30 days after service of the applicant’s affidavits, a respondent shall serve any supporting affidavits and documentary exhibits and shall file proof of service. The affidavits and exhibits are deemed to be filed when the proof of service is filed in the Registry. Again, the original affidavits shall be filed in the respondent’s record.

Rule 395 is amended to clarify the manner in which orders made and reasons given other than in open court may be sent to the parties, subject to subsection 36(3). In a similar fashion to the new subsection 161(3) and (4), the new rule 395, the Administrator shall send without delay a copy of every order made and of any reasons given other than in open court to all parties: by registered mail; by electronic means, including facsimile and electronic mail; or as directed by the Chief Justice. Subsection 395(2) further clarifies that if the order and any reasons are in fact transmitted by electronic means, the Administrator shall confirm receipt by the party and place proof of that receipt on the Court file.

Consultation

Sections 45.1 through 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 Rules Committee of the Federal Court of Appeal and the Federal Court (the “Federal Courts Rules Committee”), subject to the approval of the Governor in Council.

The procedural amendments were approved in principle 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.

Consultation regarding subsection 127(1)

The Direction from Chief Justice Richard issued on November 5, 2008, was posted on the Web sites of both the Federal Court of Appeal and that of the Courts Administration Service for public consultation.

Consultation regarding rules 161 and 395

The Federal Courts Rules Committee considered the proposed amendments regarding the electronic transmission of orders during previous plenary committee meetings in 2006 and 2007. At that time, some concerns were raised with respect to maintaining the option of registered mail as well as ensuring that appropriate proof of receipt of orders would be available. These concerns have been specifically addressed in the new subsections 161(3) and (4) and subsections 395(1) and (2). These proposed amendments were also discussed at Bench and Bar Liaison committee meetings in 2007 and 2008 and the majority of the members supported the proposal and found it to be useful for their practice and their clients.

Consultation regarding rules 306 and 307

A committee of the Federal Court reviewed rules 306 and 307, and proposed amendments to the plenary Federal Courts Rules Committee on November 28, 2008. The plenary committee approved the proposal in principle, but instructed the drafters to clarify the language regarding the deeming provision and to require that original affidavits be filed in the application record. These modifications have since been incorporated in the proposed procedural amendments.

Contact

Chantelle Bowers
Secretary of the Rules Committee of the Federal Court of Appeal and the Federal Court
Ottawa, Ontario
K1A 0H9
Telephone: 613-995-5063
Fax: 613-941-9454
Email: Chantelle.Bowers@fca-caf.gc.ca

 PROPOSED REGULATORY TEXT

Notice is hereby given, pursuant to paragraph 46(4)(a) (see footnote a) of the Federal Courts Act (see footnote b), and subject to the approval of the Governor in Council, 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 (Procedural Amendments).

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, 90 Sparks Street, 10th Floor, Ottawa, Ontario K1A 0H9 (tel.: 613-995-5063; fax: 613-941-9454; e-mail: chantelle.bowers@fca-caf.gc.ca).

Ottawa, June 5, 2009

RAYMOND P. GUENETTE
Chief Administrator
Courts Administration Service

Note	RULES AMENDING THE FEDERAL COURTS RULES (PROCEDURAL AMENDMENTS)
	AMENDMENTS
	1. Subsection 127(1) of the Federal Courts Rules (see footnote 1) is replaced by the following:
Service of originating documents	127. (1) An originating document that has been issued, other than in an ex parte application under rule 327, shall be served personally in a manner set out in rules 128 to 133.
	2. Subsection 161(3) of the Rules is replaced by the following:
Notice of report	(3) On the filing of a referee’s report, the Administrator shall send without delay a copy of it to all parties (a) by registered mail; (b) by electronic means, including facsimile and electronic mail; or (c) as directed by the Chief Justice, by any other means likely to bring the report to the attention of the party.
Proof of receipt	(4) If the report is transmitted by electronic means, the Administrator shall confirm receipt by the party and place proof of that receipt on the Court file.
	3. Rules 306 and 307 of the Rules are replaced by the following:
Applicant’s affidavits	306. (1) Within 30 days after issuance of a notice of application, an applicant shall serve its supporting affidavits and documentary exhibits and file proof of service. The affidavits and exhibits are deemed to be filed when the proof of service is filed in the Registry.
Filing of original affidavits	(2) The original affidavits shall be filed in the applicant’s record in accordance with paragraph 309(2)(d).
Respondent’s affidavits	307. (1) Within 30 days after service of the applicant’s affidavits, a respondent shall serve any supporting affidavits and documentary exhibits and shall file proof of service. The affidavits and exhibits are deemed to be filed when the proof of service is filed in the Registry.
Filing of original affidavits	(2) The original affidavits shall be filed in the respondent’s record in accordance with paragraph 310(2)(b).
	4. Rule 395 of the Rules is replaced by the following:
Copies to be sent	395. (1) Subject to subsection 36(3), the Administrator shall send without delay a copy of every order made and of any reasons given other than in open court to all parties (a) by registered mail; (b) by electronic means, including facsimile and electronic mail; or (c) as directed by the Chief Justice, by any other means likely to bring the report to the attention of the party.
Proof of receipt	(2) If the order and any reasons are transmitted by electronic means, the Administrator shall confirm receipt by the party and place proof of that receipt on the Court file.
	COMING INTO FORCE
	5. These Rules come into force on the day on which they are registered.
	[24-1-o]

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

Footnote b
R.S., c. F-7; S.C. 2002, c. 8, s. 14

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

Footnote 1
SOR/98-106; SOR/2004-283

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