ARCHIVED — Rules Amending the Federal Courts Rules (Summary Judgment and Summary Trial)

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Vol. 143, No. 26 — December 23, 2009

Registration

SOR/2009-331 December 10, 2009

FEDERAL COURTS ACT

The rules committee of the Federal Court of Appeal and the Federal Court, pursuant to section 46 (see footnote a) of the Federal Courts Act (see footnote b), hereby makes the annexed Rules Amending the Federal Courts Rules (Summary Judgment and Summary Trial).

Ottawa, September 18, 2009

ALLAN LUTFY
Chief Justice of the Federal Court

P.C. 2009-1985 December 10, 2009

Whereas, pursuant to paragraph 46(4)(a) (see footnote c) of the Federal Courts Act (see footnote d), a copy of the proposed Rules Amending the Federal Courts Rules (Summary Judgment and Summary Trial), substantially in the annexed form, was published in the Canada Gazette, Part I, on January 24, 2009 and interested persons were invited to make representations with respect to the proposed Rules;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to section 46 (see footnote e) of the Federal Courts Act (see footnote f), hereby approves the annexed Rules Amending the Federal Courts Rules (Summary Judgment and Summary Trial), made by the rules committee of the Federal Court of Appeal and the Federal Court.

RULES AMENDING THE FEDERAL COURTS RULES
(SUMMARY JUDGMENT AND SUMMARY TRIAL)

AMENDMENTS

1. The portion of paragraph 50(1)(c) of the Federal Courts Rules (see footnote 1) before subparagraph (i) is replaced by the following:

(c) for summary judgment or summary trial other than

2. Subsection 81(1) of the Rules is replaced by the following:

Content of affidavits

81. (1) Affidavits shall be confined to facts within the deponent’s personal knowledge except on motions, other than motions for summary judgment or summary trial, in which statements as to the deponent’s belief, with the grounds for it, may be included.

3. The heading before rule 213 and rules 213 to 219 of the Rules are replaced by the following:

SUMMARY JUDGMENT AND SUMMARY TRIAL

Motion and Service

Motion by a party

213. (1) A party may bring a motion for summary judgment or summary trial on all or some of the issues raised in the pleadings at any time after the defendant has filed a defence but before the time and place for trial have been fixed.

Further motion

(2) If a party brings a motion for summary judgment or summary trial, the party may not bring a further motion for either summary judgment or summary trial except with leave of the Court.

Obligations of moving party

(3) A motion for summary judgment or summary trial in an action may be brought by serving and filing a notice of motion and motion record at least 20 days before the day set out in the notice for the hearing of the motion.

Obligations of responding party

(4) A party served with a motion for summary judgment or summary trial shall serve and file a respondent’s motion record not later than 10 days before the day set out in the notice of motion for the hearing of the motion.

Summary Judgment

Facts and evidence required

214. A response to a motion for summary judgment shall not rely on what might be adduced as evidence at a later stage in the proceedings. It must set out specific facts and adduce the evidence showing that there is a genuine issue for trial.

If no genuine issue for trial

215. (1) If on a motion for summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant summary judgment accordingly.

Genuine issue of amount or question of law

(2) If the Court is satisfied that the only genuine issue is

(a) the amount to which the moving party is entitled, the Court may order a trial of that issue or grant summary judgment with a reference under rule 153 to determine the amount; or

(b) a question of law, the Court may determine the question and grant summary judgment accordingly.

Powers of Court

(3) If the Court is satisfied that there is a genuine issue of fact or law for trial with respect to a claim or a defence, the Court may

(a) nevertheless determine that issue by way of summary trial and make any order necessary for the conduct of the summary trial; or

(b) dismiss the motion in whole or in part and order that the action, or the issues in the action not disposed of by summary judgment, proceed to trial or that the action be conducted as a specially managed proceeding.

Summary Trial

Motion record for summary trial

216. (1) The motion record for a summary trial shall contain all of the evidence on which a party seeks to rely, including

(a) affidavits;

(b) admissions under rule 256;

(c) affidavits or statements of an expert witness prepared in accordance with subsection 258(5); and

(d) any part of the evidence that would be admissible under rules 288 and 289.

Further affidavits or statements

(2) No further affidavits or statements may be served, except

(a) in the case of the moving party, if their content is limited to evidence that would be admissible at trial as rebuttal evidence and they are served and filed at least 5 days before the day set out in the notice of motion for the hearing of the summary trial; or

(b) with leave of the Court.

Conduct of summary trial

(3) The Court may make any order required for the conduct of the summary trial, including an order requiring a deponent or an expert who has given a statement to attend for cross-examination before the Court.

Adverse inference

(4) The Court may draw an adverse inference if a party fails to cross-examine on an affidavit or to file responding or rebuttal evidence.

Dismissal of motion

(5) The Court shall dismiss the motion if

(a) the issues raised are not suitable for summary trial; or

(b) a summary trial would not assist in the efficient resolution of the action.

Judgment generally or on issue

(6) If the Court is satisfied that there is sufficient evidence for adjudication, regardless of the amounts involved, the complexities of the issues and the existence of conflicting evidence, the Court may grant judgment either generally or on an issue, unless the Court is of the opinion that it would be unjust to decide the issues on the motion.

Order disposing of action

(7) On granting judgment, the Court may make any order necessary for the disposition of the action, including an order

(a) directing a trial to determine the amount to which the moving party is entitled or a reference under rule 153 to determine that amount;

(b) imposing terms respecting the enforcement of the judgment; and

(c) awarding costs.

Trial or specially managed proceeding

(8) If the motion for summary trial is dismissed in whole or in part, the Court may order the action, or the issues in the action not disposed of by summary trial, to proceed to trial or order that the action be conducted as a specially managed proceeding.

General

Right of plaintiff who obtains judgment

217. A plaintiff who obtains judgment under rule 215 or 216 may proceed against the same defendant for any other relief and may proceed against any other defendant for the same or any other relief.

Powers of Court

218. If judgment under rule 215 or 216 is refused or is granted only in part, the Court may make an order specifying which material facts are not in dispute and defining the issues to be tried and may also make an order

(a) for payment into court of all or part of the claim;

(b) for security for costs; or

(c) limiting the nature and scope of the examination for discovery to matters not covered by the affidavits filed on the motion for summary judgment or summary trial or by any cross-examination on them and providing for their use at trial in the same manner as an examination for discovery.

Stay of execution

219. On granting judgment under rule 215 or 216, the Court may order that enforcement of the judgment be stayed pending the determination of any other issue in the action or in a counterclaim or third party claim.

4. Rule 297 of the Rules is replaced by the following:

Motion for summary judgment or summary trial

297. No motion for summary judgment or summary trial may be brought in a simplified action.

5. Subsection 364(3) of the Rules is replaced by the following:

Service and filing of motion record

(3) Subject to subsections 51(2), 163(1) and 213(3), on a motion other than a motion under rule 369, the motion record shall be served and filed at least two days before the day set out in the notice of motion for the hearing of the motion.

6. Subsection 365(1) of the Rules is replaced by the following:

Respondent’s motion record

365. (1) Subject to subsections 213(4) and 369(2), a respondent to a motion shall serve a respondent’s motion record and file three copies of it not later than 2:00 p.m. on the last business day before the hearing of the motion.

7. Section 366 of the Rules is replaced by the following:

Memorandum of fact and law required

366. On a motion for summary judgment or summary trial, for an interlocutory injunction, for the determination of a question of law or for the certification of a proceeding as a class proceeding, or if the Court so orders, a motion record shall contain a memorandum of fact and law instead of written representations.

COMING INTO FORCE

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

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Rules.)

Issue and objectives

These Rules Amending the Federal Courts Rules (“the Rules”) modify the existing rules on summary judgment found in Rules 213 through 219 by among other things, adding a summary trial procedure. Necessary consequential amendments are also made.

Motions for summary judgment may be granted by the Court where there is no genuine issue for trial. Such motions are based solely on the evidence adduced by the parties in their motion records (e.g. affidavits or other documents). The availability of summary judgment allows for the efficient disposition of actions, in whole or in part, where a trial to hear a full range of evidence is unnecessary.

The current judicial interpretation of the summary judgment rules limits the instances in which summary judgment will be granted. The jurisprudence requires that a motion for summary judgment be dismissed where an issue of credibility arises or where there is conflicting evidence and the outcome of the motion turns on the drawing of inferences. Thus, the existing provisions for summary judgment in the Federal Court do not provide the flexibility needed to manage the Court’s caseload efficiently by the expeditious disposition of cases that do not require a full trial.

These amendments also clarify the evidentiary burden that must be met by a party to a summary judgment motion in accordance with the existing jurisprudence.

These proposed amendments have no financial repercussions.

These amendments were pre-published on Saturday, January 24, 2009, in vol. 143, No. 4 of the Canada Gazette, Part I.

Subject to the approval of the Governor in Council, the Federal Court of Appeal and the Federal Court Rules Committee can make, amend or cancel any rule.

Description and rationale

The Rules Committee of the Federal Court of Appeal and the Federal Court (the “Committee”) has determined that the administration of justice would be better served by the incorporation of a summary trial procedure, similar to that found in rule 18A of the British Columbia Rules of Court, into the Federal Courts Rules. Such an amendment allows the Court to dispose summarily of actions in a greater range of circumstances than is permitted under current rule 216(3). These amendments also serve to give the parties greater control over the pace of their litigation.

The rules governing summary judgment are therefore amended to establish a summary trial proceeding in addition to motions for summary judgment. These amendments enable the Court to determine an issue or action by way of summary trial even though there is conflicting evidence or issues of credibility which, prior to these amendments, would have required a full trial.

The amendments also permit a party to bring a motion for summary trial where, in the party’s opinion, there are genuine issues that could be determined without a full trial.

These amendments expand the number of instances in which an action may be disposed of summarily providing greater flexibility to the parties and to the Court and enhancing access to justice.

The amendments also clarify the evidentiary burden on a party responding to a summary judgment motion to make it consistent with recent jurisprudence.

Technical description

To meet the above-mentioned objectives, the Committee makes the following amendments to the Rules:

  • Rule 50(1)(c) is amended to clarify that a prothonotary does not have jurisdiction to hear and determine a motion for summary trial.
  • Rule 81(1) is amended to clarify that the exception which allows affidavits on information and belief to be filed in support of motions is not applicable to motions for summary judgment or summary trial.
  • Rule 213(1) is amended to allow a party to bring a motion for summary judgment or summary trial prior to the time, date and location of the trial having been fixed. The Committee notes that the Court continues to have an overriding power to dispense with compliance with any of the Rules in special circumstances pursuant to rule 55.
  • Rule 213(2) is replaced by a provision which limits a party to bringing one motion for summary judgment or summary trial. Subsequent motions pursuant to rule 213(1) may only be brought with leave of the Court.
  • A new rule 213(3) requires the moving party to serve and file its motion record at least 20 days prior to the date set for the hearing of the motion. New rule 213(4) provides for a deadline of 10 days before the hearing date for any responding materials to be served and filed.
  • New rule 214 clarifies the evidentiary burden on the responding party to a motion for summary judgment to render it consistent with recent jurisprudence.
  • Rule 215(3) replaces former rule 216(3). Rule 215(3)(a) gives the Court the power to proceed to determine an action or issue by way of a summary trial even where it is satisfied that there is a genuine issue of fact and law for trial. The Court may make any order necessary for the conduct of the summary trial.
  • Rule 215(3)(b) empowers the Court to dismiss a motion for summary judgment in whole or in part and order that the matter proceed to trial and be specially managed thereby allowing the matter to move forward as quickly as possible.
  • Rule 216 is added to provide a summary trial mechanism. It sets out the type of evidence which may be adduced [216(1)]; delineates the scope of rebuttal evidence by the moving party [216(2)]; empowers the Court to make any order necessary for the conduct of the summary trial including an order requiring a witness to attend for cross-examination viva voce before the Court [216(3)]; permits the Court to draw an adverse inference where a party fails to cross-examine or file responding or rebuttal evidence [216(4)]; sets out the circumstances in which the Court may dismiss the motion for summary trial [216(5)]; empowers the Court to grant judgment if satisfied that there is sufficient evidence for adjudication [216(6)]; gives the Court the power to make any order necessary for the disposition of the action [216(7)]; and, if the motion for summary trial is dismissed, gives the Court the power to order that the matter proceed to trial and be specially managed [216(8)].
  • Rules 217 to 219 are amended to include judgments under new rule 216 (summary trials).
  • Rule 218(c) of the French version is amended to better reflect the wording of the English version.
  • Rule 297 is amended to preclude motions for summary trial being brought in simplified actions (as is set out in rule 292 regarding actions in which each claim is exclusively for monetary relief in an amount not exceeding $50,000 or, on motion, the Court orders that the action be conducted as a simplified action).
  • Rule 366 is amended to include motions for summary trial.

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 “Committee”) subject to the approval of the Governor in Council.

The amendments regarding summary judgment and summary trial were approved 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.

A Discussion Paper was circulated by the Committee on October 13, 2006, with respect to summary judgment in the Federal Court, for the purpose of receiving comments on possible alternatives to current rule 216. This Discussion Paper and a Notice to the Profession were posted on the Web sites of both the Federal Court of Appeal and the Federal Court. Comments were received from judges of the Federal Court of Appeal and the Federal Court, as well as from members of the Bar. Those comments were considered and discussed by a subcommittee of the Committee. All of the comments supported the proposal in principle.

Since then the proposed amendments to the summary judgment rules were drafted and further discussions were held both at the subcommittee level and at a meeting of the plenary Committee. The proposed amendments were also discussed at Bench and Bar Liaison Committee meetings in 2007, 2008 and 2009; the majority of the members of these liaison committees were in agreement with the proposal.

Pre-publication

These amendments were pre-published on Saturday, January 24, 2009, in vol. 143, No. 4 of the Canada Gazette, Part I, for a period of 60 days.

Comments made during the pre-publication of the proposed summary judgment rules were received from the Intellectual Property Institute of Canada (IPIC), the Intellectual Property Section of the Canadian Bar Association (CBA-IP), and Mr. Miles Hastie. All of the written representations supported the proposed amendments in principle. In particular, IPIC and the CBA-IP noted that the amendments are likely increase access to justice.

A number of the specific comments made by IPIC, CBA-IP and Mr. Hastie were considered by the Committee and are addressed as follows:

Rule 81: A concern was raised about the inadmissibility of hearsay evidence in summary judgment and summary trial motions. More particularly, IPIC questioned whether this amendment would increase cost and reduce the flexibility of the Court process by limiting the type of evidence available to a party. However, the Committee noted that evidence adduced in a summary judgment motion may be filed in a subsequent summary trial motion. It would be inappropriate to conduct a summary trial on the basis of hearsay evidence; allowing hearsay on a summary trial motion would also lead to possible motions contesting the admissibility of that evidence thereby result in further delay and expense.

Rule 213(1): A concern was raised about the amendments which appear to limit the flexibility of a party to bring a motion for summary judgment or trial at certain times in a proceeding. The committee reviewed the comment and concluded that in view of the rules governing case management, as well as Rule 55 which allows the court to vary or dispense with compliance in special circumstances, no change to the proposed amendment was necessary.

Rule 215(3): A comment was made about the possibility that a motion for summary trial would be scheduled immediately after being converted from a motion for summary judgment. The Committee noted that any issue in relation to the timing of a subsequent motion for summary trial could be addressed by the parties at the outset of a summary judgment motion. As well, the Committee noted that the amendment provides the Court with a wide discretion to make orders or directions in relation to the conduct of a summary trial. Finally, the Court is bound to interpret the Rules in accordance with the principle of fairness set out in Rule 3 which would require that parties be given sufficient time to present their position.

Rule 216(1): The CBA-IP section recommended that the deadlines for filing memoranda of fact and law in summary judgment motions be modified to allow for written representations to be filed after the motion records. The Committee noted that similar timelines for summary judgment motions have been in existence since the coming into force of the Federal Courts Rules in 1998. Moreover, the majority of actions in the Federal Court are case managed which, pursuant to Rule 385, creates an inherently flexible framework for the management of such procedural issues.

Rule 216(3) [now rule 216(5)]: IPIC noted that the proposed rule permitted the Court to dismiss a motion for summary judgment on its own motion. IPIC raised a concern that such a discretion may permit the Court to dismiss a motion for summary trial without hearing submissions from the parties to the motion. The Committee noted that in light of the fairness principle set out in Rule 3 of the Federal Courts Rules a party would always be entitled to make submissions before the Court dismissed a motion of its own initiative.

Another comment made in relation to rule 216(5) [now Rule 216(3)] recommended that the permissive term “may” found in the proposed rule be replaced by the mandatory word “shall”. The Committee agreed with this suggestion as it would be inappropriate to continue the hearing of a motion for summary trial where a party has established that the motion falls within the scope of rule 216(3) [now 216(5)].

Rule 216(4) [now Rule 216(3)]: It was recommended that the proposed rule should specify when orders in relation to the cross-examination of witnesses will be made to facilitate the preparation for hearings. The Committee concluded that this concern was likely the result of the wording “on or before” which may have led to the belief that the Court would ask parties to present witnesses at the hearing without notice. The wording “on or before” has been removed to address this concern. Additionally, all of the rules in the Federal Courts Rules are to be interpreted in light of the fairness principle set out in Rule 3 which would require that a party be given sufficient time to properly present a witness.

The Committee has also renumbered the sub-rules in proposed rule 216 to ensure that the amendments read in a logical and internally consistent manner.

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

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

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

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

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

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

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

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