Canada Gazette, Part I, Volume 146, Number 29: Rules Amending the Federal Courts Rules

July 21, 2012

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.)

1. Background

The Rules Committee issued a discussion paper entitled Possible Procedural Changes, and by way of initial consultation circulated it to members of the profession and posted it on the Web sites of both the Federal Court of Appeal and the Federal Court. The paper indicated that, in addition to the larger reforms of the Federal Courts Rules, from time to time the need arises for discrete amendments. Reforms that are of a purely housekeeping nature may require no more than the ordinary process of notice and consultation through publication in the Canada Gazette. However, other reforms could benefit from input in advance of drafting proposed amendments to the Rules. This particular discussion paper identified several possible issues that could form the basis for reform of the Rules and for which the Rules Committee invited input through its Secretary.

Subsequently, at a plenary meeting of the Rules Committee held on May 6, 2011, it was agreed that the list of possible miscellaneous changes to the Federal Courts Rules would be divided up into procedural amendments and those that are more substantive in nature. The following proposed changes are those which were identified as procedural in nature and form the basis of the proposed rule changes.

At a plenary meeting of the Rules Committee held on November 26, 2010, a list of possible miscellaneous amendments to the Federal Courts Rules was discussed and reviewed. There was general agreement that this list of amendments was procedural in nature and could proceed in a relatively quick manner in order to address some minor discrepancies and to provide clarity in the Rules.

The Rules Committee proceeded to consider this list in greater detail at its next plenary meeting, held on May 6, 2011, and a discussion paper was distributed to members of the profession and on the Web sites of both the Federal Court of Appeal and the Federal Court.

The Rules Committee reviewed the various comments received flowing from that discussion paper at its next plenary meeting, held on November 18, 2011, and drafting instructions were finalized and sent to the legislative drafters at the Department of Justice.

Finally, the Rules Committee approved the proposed Rules Amending the Federal Courts Rules at its most recent plenary meeting held on May 11, 2012, and instructed that this set of miscellaneous amendments be prepublished in Part Ⅰ of the Canada Gazette for further consultation with the public over a period of 60 days, as required by paragraph 46(4)(a) of the Federal Courts Act.

2. Issue

In addition to larger reforms that are sometimes needed to the Federal Courts Rules, there is a need to address non-substantive, miscellaneous amendments that are beneficial to the parties and to the Courts alike. The proposed amendments to the Rules were derived from an ongoing list of reforms which were more of a housekeeping nature submitted by members of the profession, the Registry and the Courts over the past couple of years. Those suggested changes have been synthesized into a single package of amendments. The topics are varied and range from the font size of documents submitted to the Courts at rule 65 to the dates of general sittings at subsection 34(1).

The following proposed miscellaneous amendments to the Federal Courts Rules have been discussed, reviewed and ultimately approved by the Rules Committee of the Federal Court of Appeal and the Federal Court (the “Rules Committee”) at a total of four plenary Committee meetings, over the course of a two-year period.

3. Objectives

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

4. Description

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

1. Rule 15 regarding Registry hours of operations is repealed. The Rules Committee is of the view that the administrative details regarding the hours of operation could be communicated through the Web sites of the Federal Court of Appeal, the Federal Court and the Courts Administrative Service or by way of practice direction.

2. Rule 34 is amended to give greater flexibility to the Chief Justice of the Federal Court to schedule motions days, and would read as follows:

2. (1) Paragraphs 34(1)(a) to (c) of the Rules are replaced by the following:

  1. (a) at Ottawa, every Wednesday and on any other day fixed by the Chief Justice of the Federal Court;
  2. (b) at Toronto and Vancouver, every Monday and on any other day fixed by the Chief Justice of the Federal Court;
  3. (c) in Quebec,
    1. (i) at Montreal, every Monday and on any other day fixed by the Chief Justice of the Federal Court, and

      (ii) on a day and at any other place fixed by the Chief Justice of the Federal Court; and
  4. (d) in every province other than Ontario, Quebec and British Columbia, at least once per month, on a day and at a place fixed by the Chief Justice of the Federal Court.

(2) Paragraph 34(1)(b) of the Rules is replaced by the following:

  1. (b) at Toronto and Vancouver, every Tuesday and on any other day fixed by the Chief Justice of the Federal Court;

(3) Subparagraph 34(1)(c)(i) of the Rules is replaced by the following:

  1. (i) at Montreal, every Tuesday and on any other day fixed by the Chief Justice of the Federal Court, and

3. In order to provide the Court additional time to prepare and read the documents filed for motions days, rules 362, 364(3) and 365(1) should be amended and set out as follows:

362. (1) Subject to subsection (2), on a motion other than a motion under rule 369, a notice of motion and any affidavit required under rule 363 shall be served and filed at least three days before the day set out in the notice for the hearing of the motion.

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

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 day that is two days before the hearing of the motion.

4. Rule 65 regarding the format of documents is amended to specify the requirement for a 12-point Times New Roman or Arial font for court documents, including references.

5. Rule 149 is amended to address the minor discrepancy between current rule 149, which allows for payment into court to be made by way of a bill of exchange drawn on a bank, trust company, etc., and Form 149, which refers to payments being made by way of certified cheque. It would be best to reconcile the two at the same time, by amending rule 149 to add the words “certified cheque or other bill of exchange…”

6. Subsection 237(6) is amended to correct an incorrect cross-reference in subsection 237(6) regarding the examination of a party under a legal disability. The cross-reference has been changed from rule 121, which requires persons under legal disabilities to be represented, to subsection 115(1), which is a reference to the person who is appointed to represent the person under legal disability.

7. Subsection 280(2) is amended to read “[w]ith leave of the Court, all or part of an affidavit or statement referred to in paragraph 279(b) may be taken as read into evidence by the witness.”

8. Rule 305 and Form 305 are amended to provide for respondents who wish to appear in support of an application (following the jurisprudence in Sepracor Inc.). At the present time, the Rule allows only for respondents who wish to appear to oppose an application.

9. Subsections 309(2) and 310(2) have been amended to eliminate the need to file an affidavit attaching the certified record or portion thereof, which is already part of the Court record. This will clarify the controversy in the interpretation of these rules referred to in Canada (Attorney General) v. Select Brand Distributors Inc., 2010 FCA 3, and essentially reiterates what the Canada Evidence Act says with respect to the admissibility of documents.

10. A new rule 316.1 is created and it sets out exceptions to general procedures for ex parte applications and sets out which documents need not be served. A new rule 316.2 is also created to clarify the example of summary applications under section 231.7 of the Income Tax Act as an exception to the general procedure. A new Form 316.2 is also created to support the summary applications under the Income Tax Act.

11. Paragraph 385(1)(a) is amended by adding the words “any orders,” which helps to make it more reflective of the general principle set out in rule 3. The amendment will read as follows: “give any directions or make any orders that are necessary for the just, most expeditious and least expensive determination of the proceeding on its merits.”

12. Rule 439 regarding directions from the Court to the Sheriff is amended by adding the words “a person at whose instance a writ of execution is issued.” This amendment allows for greater clarity and matches the wording used in rule 438.

13. Form 301 is amended to replace the word “prepare” with the word “file” in the third paragraph in reference to a notice of appearance.

14. Subsection 1(1) of Tariff A is amended. The amendment adds paragraph (h), which establishes a fee for the Anton Piller orders. It shall specify that the applicant must make a payment of $50 for each defendant added to an Anton Piller order.

and

Subsection 1(2) of Tariff A is amended by adding paragraph (c.1) for the filing fee for summary trial motions to be $50.

15. Section 2 of Tariff A is amended regarding the value of “C” in the formula, removing the words “one-half” from the definition of variable “C” to read “C is the amount payable by the Administrator to a court reporter in respect of the portion of the trial or hearing conducted after the first three days;”

16. These Rules come into force on the day on which they are registered, with the exception of paragraphs 34(1)(b) and (c), which shall come into effect six months thereafter, as set out in subsection 2(2) and (3).

5. Consultation

Sections 45.1 and 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 “Rules Committee”), subject to the approval of the Governor in Council.

The proposed procedural amendments have been recommended by the 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.

6. Rationale

The amendments to the Federal Courts Rules will improve access to justice before both the Federal Court of Appeal and the Federal Court, and will not unduly impact on other areas or sectors. It is expected that the benefits will be realized both by the judiciary and the litigants in terms of flexibility and accessibility.

In many of the proposed changes, the Rules Committee was responding to requests by the parties to ensure better and easier access to the Courts. For example, the Court was listening to the parties who sought to alleviate the need to replicate material already found in a certified tribunal record, by adding a new paragraph at rules 309 and 310.

In terms of the costs to Canadians, the only change that will have a small impact is the change contemplated in adding a new paragraph for Anton Piller orders in intellectual property matters to be set at a fee of $50 per defendant (paragraph 1(1)(h) of Tariff A of the Federal Courts Rules) and a new paragraph for a filing fee of summary trial motions, to be set at $50 (paragraph 1(2)(c.1) of Tariff A of the Federal Courts Rules).

There was also a need to reconcile rule 149 with the related Form 149 pertaining to different methods of payment into court, in order to ensure that they both read the same way and allowed for either a certified cheque or other bill of exchange.

Finally, the Rules Committee of the Federal Court of Appeal and the Federal Court is of the view that these procedural amendments should have no deleterious impact on the parties before the Court or the public at large.

7. 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 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.

Interested persons may make representations in writing concerning 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; email: chantelle.bowers@fca-caf.gc.ca).

Ottawa, June 28, 2012

DANIEL GOSSELIN
Chief Administrator
Courts Administrative Service

RULES AMENDING THE FEDERAL COURTS RULES

AMENDMENTS

1. Rule 15 of the Federal Courts Rules (see footnote 1) is repealed.

2. (1) Paragraphs 34(1)(a) to (c) of the Rules are replaced by the following:

  1. (a) at Ottawa, every Wednesday and on any other day fixed by the Chief Justice of the Federal Court;
  2. (b) at Toronto and Vancouver, every Monday and on any other day fixed by the Chief Justice of the Federal Court;
  3. (c) in Quebec,
    1. (i) at Montreal, every Monday and on any other day fixed by the Chief Justice of the Federal Court, and
    2. (ii) on a day and at any other place fixed by the Chief Justice of the Federal Court; and
  4. (d) in every province other than Ontario, Quebec and British Columbia, at least once per month, on a day and at a place fixed by the Chief Justice of the Federal Court.

(2) Paragraph 34(1)(b) of the Rules is replaced by the following:

  1. (b) at Toronto and Vancouver, every Tuesday and on any other day fixed by the Chief Justice of the Federal Court;

(3) Subparagraph 34(1)(c)(i) of the Rules is replaced by the following:

  1. (i) at Montreal, every Tuesday and on any other day fixed by the Chief Justice of the Federal Court, and

3. Rule 65 of the Rules is replaced by the following:

Format of printed documents

65. A printed document that is prepared for use in a proceeding shall be legible, the print — including all references in the document — shall be in 12-point Times New Roman or Arial font and each page of the document shall

  1. (a) be on good quality white or off-white paper, measuring 21.5 cm by 28 cm (8½ in. by 11 in.);
  2. (b) have top and bottom margins of not less than 2.5 cm and left and right margins of not less than 3.5 cm;
  3. (c) be printed on one side of the paper only, unless the document is a book of authorities; and
  4. (d) have no more than 30 lines, exclusive of headings.

4. (1) Paragraph 149(1)(a) of the Rules is replaced by the following:

  1. (a) a certified cheque or other bill of exchange drawn on a bank, trust company, credit union or caisse populaire or any other bill of exchange authorized by order of the Court, payable to the order of the Receiver General; and

(2) Subsections 149(2) and (3) of the Rules are replaced by the following:

Effective date of payment

(2) Payment into court by a certified cheque or other bill of exchange that is paid on presentation for payment is effective on the day on which it was delivered to the Registry.

Receipt for payment

(3) When a certified cheque or other bill of exchange is paid, the Administrator shall endorse or acknowledge receipt on a copy of the tender of payment into court and return it to the person who made the payment.

5. Subsection 237(6) of the Rules is replaced by the following:

Examination of party under legal disability

(6) If a party intends to examine for discovery a person who is appointed under paragraph 115(1)(b) to represent a person under a legal disability, the party may, with leave of the Court, also examine the person under a legal disability.

6. Subsection 280(2) of the Rules is replaced by the following:

Affidavit taken as read

(2) With leave of the Court, all or part of an affidavit or statement referred to in paragraph 279(b) may be taken as read into evidence by the witness.

7. Rule 305 of the Rules is replaced by the following:

Notice of appearance

305. A respondent who intends to appear in respect of an application shall, within 10 days after being served with a notice of application, serve and file a notice of appearance in Form 305.

8. Subsection 309(2) of the Rules is amended by adding the following after paragraph (e):

  1. (e.1) any material that has been certified by a tribunal and transmitted under Rule 318 that is to be used by the applicant at the hearing;

9. Subsection 310(2) of the Rules is amended by adding the following after paragraph (c):

  1. (c.1) any material that has been certified by a tribunal and transmitted under Rule 318 that is to be used by the respondent at the hearing and that is not contained in the applicant’s record;

10. The Rules are amended by adding the following after Rule 316:

EXCEPTIONS TO GENERAL PROCEDURE

Ex parte proceedings

316.1 Despite rules 304, 306, 309 and 314, for a proceeding referred to in paragraph 300(b) that is brought ex parte,

  1. (a) the notice of application, the applicant’s record, affidavits and documentary exhibits and the requisition for hearing are not required to be served; and
  2. (b) the applicant’s record and the requisition for hearing must be filed at the time the notice of application is filed.

Summary application under Income Tax Act

316.2 (1) Except for rule 359, the procedures set out in Part 7 apply, with any modifications that are required, to a summary application brought under section 231.7 of the Income Tax Act.

Commencing the application

(2) The application shall be commenced by a notice of summary application in Form 316.2.

11. (1) Subsection 362(1) of the Rules is replaced by the following:

Service and filing of notice

362. (1) Subject to subsection (2), on a motion other than a motion under rule 369, a notice of motion and any affidavit required under rule 363 shall be served and filed at least three days before the day set out in the notice for the hearing of the motion.

(2) The portion of subsection 362(2) of the Rules before paragraph (a) is replaced by the following:

Motion on less than three days notice

(2) The Court may hear the motion on less than three days’ notice

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

Service and filing of motion record

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

13. 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 day that is two days before the hearing of the motion.

14. Paragraph 385(1)(a) of the Rules is replaced by the following:

  1. (a) give any directions or make any orders that are necessary for the just, most expeditious and least expensive determination of the proceeding on its merits;

15. Subsection 439(3) of the Rules is replaced by the following:

Directions from Court

(3) A person at whose instance a writ of execution is issued or a sheriff may seek directions from the Court concerning any issue not addressed by these Rules that arises from the enforcement of an order.

16. Form 301 of the Rules is replaced by the Form 301 set out in the schedule.

17. Form 305 of the Rules is replaced by the Form 305 set out in the schedule.

18. The Rules are amended by adding, in numerical order, the Form 316.2 set out in the schedule.

19. (1) Subsection 1(1) of Tariff A to the Rules is amended by adding the following after paragraph (g):

  1. (h) an Anton Piller order, per defendant........$50

(2) Subsection 1(2) of Tariff A to the Rules is amended by adding the following after paragraph (c):

  1. (c.1) a notice of motion for a summary trial........$50

20. The description of C in section 2 of Tariff A to the Rules is replaced by the following:

C is the amount payable by the Administrator to a court reporter in respect of the portion of the trial or hearing conducted after the first three days; and

COMING INTO FORCE

21. (1) Subject to subsection (2), these Rules come into force on the day on which they are registered.

(2) Subsections 2(2) and (3) come into force six months after the day on which these Rules are registered.

SCHEDULE
(Sections 16, 17 and 18)

FORM 301

Rule 301

NOTICE OF APPLICATION

(General Heading — Use Form 66)

(Court seal)

NOTICE OF APPLICATION

TO THE RESPONDENT:

A PROCEEDING HAS BEEN COMMENCED by the applicant. The relief claimed by the applicant appears on the following page.

THIS APPLICATION will be heard by the Court at a time and place to be fixed by the Judicial Administrator. Unless the Court orders otherwise, the place of hearing will be as requested by the applicant. The applicant requests that this application be heard at (place where Federal Court of Appeal (or Federal Court) ordinarily sits).

IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application or to be served with any documents in the application, you or a solicitor acting for you must file a notice of appearance in Form 305 prescribed by the Federal Courts Rules and serve it on the applicant’s solicitor or, if the applicant is self-represented, on the applicant, WITHIN 10 DAYS after being served with this notice of application.

Copies of the Federal Courts Rules, information concerning the local offices of the Court and other necessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone 613-992-4238) or at any local office.

IF YOU FAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU.

(Date)

Issued by: _________________________________

 (Registry Officer)              

Address of local office: _________________________________

TO: (Name and address of each respondent)

(Name and address of every other person required to be served)

(Separate page)

APPLICATION

(Where the application is an application for judicial review)

This is an application for judicial review in respect of

(Identify the tribunal.)

(Set out the date and details of the decision, order or other matter in respect of which judicial review is sought.)

The applicant makes application for: (State the precise relief sought.)

The grounds for the application are: (State the grounds to be argued, including any statutory provision or rule relied on.)

This application will be supported by the following material: (List the supporting affidavits, including documentary exhibits, and the portions of transcripts to be used.)

(If the applicant wishes a tribunal to forward material to the Registry, add the following paragraph:)

The applicant requests (name of the tribunal) to send a certified copy of the following material that is not in the possession of the applicant but is in the possession of the (tribunal) to the applicant and to the Registry: (Specify the particular material.)

(Date)

_____________________________

(Signature of solicitor or applicant)

(Name, address and telephone and fax numbers of solicitor or applicant)

_____________________________________________________________________

FORM 305

Rule 305

NOTICE OF APPEARANCE — APPLICATION

(General Heading — Use Form 66)

NOTICE OF APPEARANCE

The respondent intends to appear in respect of this application.

(Date)

_____________________________

(Signature of solicitor or respondent)

(Name, address and telephone and fax numbers of solicitor or respondent)

TO:  (Names and addresses of other solicitors or parties)

____________________________________________________________________

FORM 316.2

Rule 316.2

NOTICE OF SUMMARY APPLICATION

(General Heading — Use Form 66)

(Court seal)

NOTICE OF SUMMARY APPLICATION

TO THE RESPONDENT:

A SUMMARY APPLICATION HAS BEEN COMMENCED by the applicant under section 231.7 of the Income Tax Act. The relief claimed by the applicant appears on the following page.

THIS APPLICATION will be heard by the Court on (day), (date), at (time) or as soon after that time as the application can be heard, at (place).

IF YOU WISH TO OPPOSE THIS APPLICATION, you or a solicitor acting for you must serve a respondent’s record and file three copies of it not later than 2:00 p.m. on the last business day before the hearing of the application.

Copies of the Federal Courts Rules, information concerning the local offices of the Court and other necessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone 613-992-4238) or at any local office.

IF YOU FAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU.

(Date)

Issued by: ________________________________

 (Registry Officer)

Address of local office: ________________________________

TO: (Name and address of each respondent)

(Name and address of every other person required to be served)

(Separate page)

SUMMARY APPLICATION

The applicant makes application for: (State the precise relief sought.)

The grounds for the application are: (State the grounds to be argued, including any statutory provision or rule relied on.)

This application will be supported by the following material: (List the supporting affidavits, including documentary exhibits, and the portions of transcripts to be used.)

(Date)

_______________________________

(Signature of solicitor or applicant)

(Name, address and telephone and fax numbers of solicitor or applicant)

______________________________________________________________________

[29-1-o]