Canada Gazette, Part I, Volume 155, Number 15: Rules Amending the Federal Courts Rules [proportionality, abuse of process and
Federal Court of Appeal motions]
April 10, 2021
Federal Courts Act
Courts Administration Service
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Rules.)
Amendments should be made to the Federal Courts Rules (the Rules) for the benefit of the parties and the Federal Court of Appeal and Federal Court (the Courts) alike. The Rules currently in force must be amended to (a) allow the Courts to strike a balance between the importance and the complexity of the case and the amounts involved; (b) provide the Courts with the necessary tools to deal directly with dysfunctional or destructive conduct in the litigation process; (c) increase the effectiveness of the Federal Court of Appeal in managing motions and access to justice for litigants; and (d) reform the definition of “Christmas recess” and “holiday.”
The Rules Committee of the Federal Court of Appeal and the Federal Court (Rules Committee) is a statutory committee created under section 45.1 of the Federal Courts Act to adopt, amend, or revoke rules, subject to the approval of the Governor in Council. Pursuant to section 45.1 of the Federal Courts Act, the Rules Committee includes the Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court; three judges of the Federal Court of Appeal designated by the Chief Justice of the Federal Court of Appeal and five judges and one prothonotary of the Federal Court designated by the Chief Justice of the Federal Court; the Chief Administrator of the Courts Administration Service; five members of the bar (designated by the Attorney General of Canada, after consultation with the Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court); and the Attorney General of Canada or a representative thereof. All members of this committee consult with their respective groups, whether they are public and private sector counsel or members of the Courts, with respect to proposed amendments to the Rules.
Proportionality and abuse of process
In October 2011, the Rules Committee established a subcommittee to conduct a comprehensive review of the Rules. The subcommittee was designed to include as many different perspectives as possible. Through the subcommittee's consultation process, other constituencies and their views were also heard. See Global Review of the Federal Courts Rules — Consultation Paper, October 14, 2011, and Global Review of Federal Courts Rules (PDF) — Discussion Paper, May 2012.
This subcommittee submitted its final report (PDF) on October 16, 2012. According to the report, public consultations revealed a broad consensus that certain parties sometimes make excessive or disproportionate use of rights under the Rules. These excesses include the use of procedures to delay cases and the adoption of behaviours disproportionate to the objective of achieving an expeditious, just and cost-effective judicial decision. The excessive use of procedure is of particular concern in the context of the disclosure of exhibits. The report concluded that the Rules do not provide parties and decision-makers with sufficient tools to enforce or promote proportionality.
The report also noted that as the number of self-represented litigants increases, decision-makers need new tools to effectively regulate proceedings involving them. For example, many self-represented litigants bring multiple proceedings and motions concerning the same subject matter, and sometimes the responding party does not take immediate action to respond. At present, the Courts do not have the ability on their own motion to combine proceedings or eliminate duplicative ones. Sometimes self-represented litigants initiate proceedings that on the face of it have no chance of success. Yet such proceedings often languish in the justice system for a long time, wasting the resources of the court and other parties. Doubt persists as to the power of the Courts to eliminate such proceedings in a fair manner at an early stage.
The consultations and discussions leading up to the report identified many circumstances where, in pursuing a right under the Rules, or in ensuring compliance with the Rules, a party expends time, cost and energy out of proportion to the realizable benefits. Members of the Rules Committee recounted many examples of disproportionality, such as motions seeking a ruling on over a thousand refused questions in the context of examinations for discovery, in proceedings that did not warrant such an approach.
The report recommended, among other things, that new regulatory tools be developed to curb the excessive or abusive use of court proceedings and to ensure that parties take proportionate steps in conducting their litigation. The concepts of proportionality and prevention of abuse are discussed in detail in Part IV of the subcommittee's final report.
Following this report, a number of initiatives were launched by the Committee to respond to some of the report's recommendations; at a meeting on November 27, 2016, the Rules Committee recommended adding a project to amend the Rules in order to incorporate the principle of proportionality into them and to allow the Courts to prevent certain abuses related to documents and examinations for discovery.
Motions before the Federal Court of Appeal
Until 2003, during the period when the Federal Court (then known as the Federal Court of Canada) had two divisions (the Trial Division and the Appeal Division), the practice governing motions allowed parties to make motions to the Trial Division, in writing or orally, at their discretion. To this end, the Trial Division held General Sittings once a week in Ontario, Quebec and British Columbia, and at least once a month in all other provinces. The Appeal Division did not hold any General Sittings. Except where the Chief Justice authorized a special sitting for the hearing of a motion or a judge dealing with a written motion directed otherwise, all motions presented to the Appeal Division were decided solely in writing.
This practice was continued when the Trial Division and the Appeal Division became separate courts in 2003, and remains unchanged to this day. As was the case in the Trial Division, only the Federal Court holds General Sittings during which motions can be presented orally (section 34 and paragraph 360(a) of the Rules). Before the Federal Court of Appeal, a motion may only be made at the time and place designated by the Judicial Administrator in accordance with the instructions given by the Chief Justice following a request to that end (see subsection 35(2) of the Rules and subsection 14(2) of the Federal Courts Act) or by a judge dealing with a written motion under section 369 of the Rules (see subsection 369(4)). As in the case of motions brought before the former Appeal Division, there are only two situations where a motion can be brought orally before the Federal Court of Appeal.
The hearing of motions before a judge is, with some exceptions, neither practical nor effective, given the small number of judges at the Federal Court of Appeal and its itinerant vocation. The Federal Court of Appeal does not have prothonotaries, so every motion must be dealt with by a judge. The number of motions is high, and holding hearings in chambers significantly reduces the time that can be devoted to hearing appeals. Therefore, triage is necessary to sort out the requests for an oral hearing. The amendment would allow the Federal Court of Appeal to manage the processing of motions while allowing those that need to be heard in person to be so heard.
This amendment describes the existing practice of the Federal Court of Appeal with respect to motions, but clarifies, for litigants, the applicable procedure. This increases the efficiency of the Court as well as access to justice for litigants.
Definitions of “holiday” and “Christmas recess”
“Holiday” — Presently, the Rules incorporate the definition of “holiday” from subsection 35(1) of the Interpretation Act, including as well Saturday and Sunday. This definition differs from that contained in the Canada Labour Code. The practical effect of this difference is that the Courts' registries must remain open with skeleton staff on days that would otherwise be holidays for those court employees, in order to permit litigants to meet certain filing deadlines. Amending the definition of “holiday” would allow the Courts' registries to close on holidays.
“Christmas recess” — Given that litigants before the Courts do not all celebrate Christmas, an amendment is required to change references to the Courts' “Christmas recess” to the more inclusive “seasonal recess.”
The proposed amendments would (a) allow the Courts to strike a balance between the importance and complexity of the case and the amount claimed, and would encourage the parties to take proportionate measures to resolve their dispute; (b) give members of the Courts the tools necessary to curb certain forms of abuse; (c) allow the Federal Court of Appeal to manage the processing of motions in a more practical and effective manner and increase access to justice for litigants and, at the same time, confirm the current practice of the Federal Court of Appeal with respect to motions; and (d) change the definition of “Christmas recess” and “holiday.”
Here are the changes to the Rules.
- Rule 2 of the Rules — Definition of “Christmas recess” — The definition of “Christmas recess” would be repealed and replaced by “seasonal recess.” Considering that not all litigants before the Courts celebrate Christmas, this amendment was proposed to be more inclusive. Subsections 6(3), 34(1) and 40(1) of the Rules would be amended accordingly.
- Rule 2 of the Rules — Definition of “holiday” — The definition of “holiday” would be broadened to include situations where, due to the day on which Christmas Day, New Year's Day or Remembrance Day falls, there is a statutory holiday on the following Monday and, in certain situations, also on the Tuesday (as the case may be).
Proportionality and abuse of process
- Rule 3 of the Rules — General principle — This rule would be replaced by a new rule that would introduce the principle of proportionality, whose objective is to resolve disputes brought before the Courts, taking into account the complexity of the dispute, and the importance of the issues and the amounts at stake.
- Rule 74 of the Rules — Removal of documents improperly filed — The amendment to subsection 74(1) of the Rules would allow the Court to order that a document be removed from the judicial record on the grounds that it is outrageous, frivolous, vexatious, or clearly unfounded. The amendment to subsection 74(2) of the Rules is intended to allow parties to make submissions on the question of documents before removal from the court record is ordered, but not necessarily the right to make oral submissions in court at an in-person hearing.
- Rule 87.1 of the Rules — Examinations — This new rule would be added to the Rules to allow the Courts to limit the duration of any examination provided for by the Rules, in accordance with the principle of proportionality.
- Subparagraph 382.4(2)(b)(i) of the Rules — Review by a judge — In the English version, the expression “on its merits” would be deleted in the context of the status review before the Federal Court of Appeal.
- Paragraph 385(1)(a) of the Rules — Powers of case management judge or prothonotary — In the English version, the expression “on its merits” would be deleted in the context of a direction or order issued in relation to case management.
Motions before the Federal Court of Appeal
- Subsection 8(3) of the Rules — Motions for extension in Federal Court of Appeal — This subsection would be repealed considering that, henceforth, any motion before the Federal Court of Appeal would have to be brought under the new Rule 369.2 of the Rules, rather than Rule 369, as mentioned in subsection 8(3) of the Rules.
- Paragraph 30(1)(b), subsection 343(3), paragraph 359(a), paragraph 360(c) and subsection 394(1) of the Rules — Orders out of court, Motion to determine content of appeal book and Notice of motion — Considering that, henceforth, any motion before the Federal Court of Appeal would have to be brought under the new Rule 369.2 of the Rules, rather than Rule 369, paragraph 30(1)(b), subsection 343(3), paragraph 359(a), paragraph 360(c) and subsection 394(1) of the Rules would be amended to refer to Rule 369.2 of the Rules.
- Paragraph 359(d) of the Rules — Notice of motion — This paragraph would be modified to reflect that certain motions will proceed exclusively in writing. Consequently, the expression “at the hearing” would be replaced by “for the purpose.”
- Rule 360 of the Rules — Hearing date for motions — Considering that a motion can be heard in writing or in person, the heading of this rule would be replaced by “Return of motion.”
- Rule 363 of the Rules — Evidence on motion — This rule would be amended to clarify its scope and align with the English version of the rule. More precisely, the phrase “elle fonde sa requête” would be replaced with “elle se fonde dans le cadre de la requête.”
- Paragraphs 364(2)(f) and 365(2)(e) of the Rules — Contents of motion record — The amendments to the paragraphs in question would be necessary to reflect that motions can proceed either in person or in writing.
- Subsection 365(1) of the Rules — Respondent's motion record — This amendment would be necessary in order to distinguish the time limits prescribed for filing the respondent's motion record in a motion heard in person before the Federal Court from those that must be followed in a motion presented in writing to the Federal Court of Appeal.
- Rule 369.1 of the Rules — Motions in the Federal Court of Appeal — This new rule would introduce a new regime under which motions before the Federal Court of Appeal would proceed. It specifies the rules that would not apply to motions before the Federal Court of Appeal.
- Rule 369.2 of the Rules — Written representations only — Federal Court of Appeal — This new rule would introduce a new regime under which motions before the Federal Court of Appeal would proceed. It requires that all motions before the Federal Court of Appeal be made in writing, unless the Court decides otherwise on its own initiative or at the request of a party to the motion. The section also specifies how requests for an in-person hearing are to be made. This rule also prescribes the time limit within which the applicant may file his or her response to the motion record of a respondent.
- Form 359 — Notice of motion — Form 359 would be amended to include the new regime under which motions may be brought before the Federal Court of Appeal.
Sections 45.1 and 46 of the Federal Courts Act provide that the rules concerning the practice and procedure in force before the Federal Court of Appeal and the Federal Court are established by the Rules Committee, subject to the approval of the Governor in Council.
Proportionality and abuse of process
In October 2011, the Rules Committee established a subcommittee to conduct a global review of the Rules. In May 2012, the subcommittee released a consultation paper and a discussion paper and invited comments on a wide range of topics. The consultation paper and discussion paper were sent to hundreds of people across Canada on the Courts email distribution list and were posted on the Courts' websites. The subcommittee also approached various Canadian Bar Association sections and attended various Bench and Bar committees of the Federal Courts, publicizing the activities of the subcommittee. At court meetings, the subcommittee expressed their desire to receive submissions from the judiciary.
The subcommittee received formal written submissions from seven organizations and five individuals, representing specific practice areas, government, the judiciary, registries and legal aid clinics. In addition to formal written submissions, many approached the subcommittee informally to offer their views. In October 2012, after deliberating on all the comments received, the subcommittee presented its final report to the Rules Committee. Part IV of the report deals with the principle of proportionality and abuses of court process. Certain proposals relating to these two subjects contained in the final report were then discussed, reviewed and approved by the Rules Committee and are now requested as amendments to the Rules.
Appeal motions before the Federal Court of Appeal
These amendments to the Rules clarify the long-standing practice regarding written motions to the Federal Court of Appeal. The proposed amendments were the subject of consultations with the Rules Committee, which recommended their adoption.
Modern treaty obligations and Indigenous engagement and consultation
This draft amendment to the Rules is intended to improve the rules governing all litigation before the Courts, including litigation involving Indigenous litigants. The amendments contained in this Regulatory Impact Analysis Statement would not affect modern treaty obligations.
In accordance with section 46 of the Federal Courts Act, the rules established by the Rules Committee, and codified in the Rules, regulate the practice and procedure in the Federal Court of Appeal and the Federal Court. From time to time, the Chief Justices of the Courts also enact practice directions to provide the profession with the interpretation of the Rules and provide guidance on matters of practice that are not set out fully in the Rules. That being said, only the Rules have the force of law. In addition, practice directions are less visible and are sometimes hard to find. For this proposed change, it is therefore preferable to proceed by way of amendment of the Rules. This instrument provides for
- a comprehensive public notice and consultation process;
- a procedure that has the force of law; and
- a procedure that is transparent and easy to find, given that it is incorporated into the Rules.
Benefits and costs
Proportionality and abuse of process
The introduction of the principle of proportionality and of additional tools to curb the abuse of process is intended to improve access to justice and promote more equitable outcomes, while allocating the limited resources of the Courts (i.e. Court members and registry staff) in an efficient and fair manner. In addition, these amendments would allow the Courts — and parties — to avoid wasting limited resources, while allowing members of the Courts and staff to focus on other matters.
These changes aim to avoid abuse of process before the Courts and to achieve fair results in an efficient manner. Some litigants who have sufficient resources might be tempted to take advantage of the Rules to defeat an opponent who has fewer resources; the proposed amendments aim to discourage this approach by creating a level playing field. See page 20 of the final report (PDF) of the Subcommittee on Global Review of the Federal Courts Rules:
Including a principle of proportionality into the Federal Courts Rules can further access to justice and promote fairer outcomes. It is often the case that a poorly-resourced party claims against a better-resourced party. In some cases, the poorly-resourced party has a strong claim. At present, the better-resourced party can engage in disproportionate conduct designed to delay the litigation and drive the costs higher. In this way, the better-resourced party can force the poorly-resourced party to abandon its claim or settle at an unreasonably low level.
Applying the principle of proportionality would prevent litigants with greater resources from using the Rules unfairly or improperly against an opponent with fewer resources. The proposed amendments would have the effect of preventing such tactical manœuvring in order to achieve a fairer result.
Even if the parties are on an equal footing, the Rules can be abused. As stated on page 17 of the final report (PDF):
- … certain parties occasionally make excessive or disproportionate use of rights provided by the rules.
- Such excesses include the use of procedures to delay matters and engaging in conduct that is disproportionate to the objective of achieving an expeditious, just and cost-effective judicial determination. Excessive use of procedure is of particular concern in the discovery process.
The Courts have an obligation to ensure a certain discipline for both Bench and Bar to ensure that proportionality is taken into account. The principle of proportionality in Rule 3 is a principle of interpretation that would be applied when applying all other rules of the Rules. The inclusion of the principle of proportionality in Rule 3 would not create an obligation, at each step or procedure, to establish that the procedure is proportional to the issues or amount at stake. However, in appropriate circumstances, a party may rely on proportionality to request a less onerous procedure (for example for a relatively minor matter or remedy) or a more comprehensive or intensive procedure (for example for a relatively important matter).
Definition of “holiday”
Under the current regime, certain days commonly considered public holidays by the general public are juridical days under the Rules (for example the Monday following a Canada Day that falls on a Sunday). This means that if a time limit under the Rules ends on that day, the party must file their claim before that date, even though some people would prefer to have a holiday. By designating this day as a holiday under the Rules, the party would have until the next day to complete the next step, in accordance with section 26 of the Interpretation Act.
In addition, another practical advantage of this amendment would be that registry offices would no longer have to remain open with a reduced staff on days that would otherwise be statutory holidays for these court employees in order to allow parties to meet certain filing deadlines. This amendment to the definition of “statutory holiday” would allow registry offices to close their offices on statutory holidays.
Appeal motions before the Federal Court of Appeal
These proposed amendments with respect to motions before the Federal Court of Appeal reflect more clearly the reality that motions before that Court proceed in writing unless otherwise ordered by the Court. This clarification would permit parties to understand better the motions procedure of the Court, and is particularly beneficial to the understanding of the Court's procedures by self-represented litigants. These amendments would allow the Court to exercise a screening function while ensuring that matters that require an oral hearing can be accommodated. This would improve process efficiency for the Court and enhance access to justice for litigants. The changes would apply to all motions before the Federal Court of Appeal. While these amendments would involve many incremental process changes and efficiency improvements, these amendments would not be expected to have significant financial implications.
Small business lens
The proposed amendments would have no direct impact on small businesses and would be primarily aimed at improving the effectiveness of court operations. Therefore, the small business lens does not apply. However, small businesses may indirectly benefit from these improvements as users of court services.
The requirements of the Rules do not meet the definition of administrative burden as defined in the Red Tape Reduction Act; therefore, the one-for-one rule does not apply.
Regulatory cooperation and alignment
The proposal is not related to a work plan or a commitment under a formal regulatory cooperation forum.
Although there is policy alignment between the current proposals and the initiatives in certain provinces, it is noted that each province has adopted a unique framework that fits within their particular civil rules of procedure. Therefore, there are differences in each jurisdiction's implementation of particular procedural rules.
Proportionality and abuse of process
Many provincial civil procedure court rules address the principle of proportionality and provide mechanisms for addressing abuses of court process, though their approaches may vary.
In studying approaches to the principle of proportionality, the subcommittee examined the procedural rules of various provinces, including
- Quebec's Code of Civil Procedure — section 18;
- Ontario's Rules of Civil Procedure — Rule 1.04; and
- British Columbia's Supreme Court Civil Rules — Rules 1 to 3.
In studying approaches to controlling abuses of process, the subcommittee took note of Quebec's Code of Civil Procedure — sections 54.1 through 54.6.
Appeal motions before the Federal Court of Appeal
Various provincial courts adopt different motions procedures in their rules, including whether motions are dealt with in person or in writing, and under what circumstances this distinction is made.
This particular amendment would clarify the rules with respect to the long-standing practice of motions before the Federal Court of Appeal.
Definitions of “holiday” and “Christmas recess”
The rules of the provincial courts vary in their approach as to whether they define “holiday” or leave that definition up to the particular interpretive legislation that applies in a particular province. Approaches vary across Canada. This proposal adopts the approach deemed most appropriate for the Courts and would be more closely aligned with the definition of “holiday” in the Canada Labour Code.
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.
Gender-based analysis plus
No gender-based analysis plus (GBA+) impacts have been identified as part of the proposal. Therefore, no group falling under the GBA+ analytical framework should be disproportionately affected by this proposal.
Implementation, compliance and enforcement, and service standards
The proposed amendments will come into force on the day on which they are registered.
Secretary of the Rules Committee of the Federal Court of Appeal and the Federal Court
PROPOSED REGULATORY TEXT
Notice is given, pursuant to paragraph 46(4)(a) footnote a of the Federal Courts Act footnote b and subject to the approval of the Administrator in Council, that the rules committee of the Federal Court of Appeal and the Federal Court, pursuant to section 46 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 Andrew Baumberg, Secretary to the Rules Committee, Federal Court, 90 Sparks Street, 12th Floor, Ottawa, Ontario K1A 0H9 (tel.: 613‑947‑3177; fax: 613‑943‑0354; email: firstname.lastname@example.org).
Ottawa, March 11, 2021
Chief Administrator, Courts Administration Service
Rules Amending the Federal Courts Rules
1 (1) The definition Christmas recess in Rule 2 of the Federal Courts Rules footnote 1 is repealed.
(2) The definition holiday in Rule 2 of the Rules is replaced by the following:
- (a) a Saturday;
- (b) a holiday as defined in subsection 35(1) of the Interpretation Act;
- (c) if New Year's Day, Canada Day or Remembrance Day falls on a Saturday or Sunday, the following Monday;
- (d) if Christmas Day falls on a Saturday or Sunday, the following Monday and Tuesday; and
- (e) if Christmas Day falls on a Friday, the following Monday. (jour férié)
(3) Rule 2 of the Rules is amended by adding the following in alphabetical order:
- seasonal recess
- means the period beginning on December 21 in a year and ending on January 7 in the following year. (vacances judiciaires saisonnières)
2 Rule 3 of the Rules is replaced by the following:
3 These Rules shall be interpreted and applied
- (a) so as to secure the just, most expeditious and least expensive outcome of every proceeding; and
- (b) with consideration being given to the principle of proportionality, including consideration of the proceeding's complexity, the importance of the issues involved and the amount in dispute.
3 Subsection 6(3) of the Rules is replaced by the following:
(3) Unless otherwise directed by the Court, a day that falls within the seasonal recess shall not be included in the computation of time for filing, amending or serving a document.
4 Subsection 8(3) of the Rules is repealed.
5 Paragraph 30(1)(b) of the Rules is replaced by the following:
- (b) the motion was brought in accordance with rule 369 or 369.2; or
6 The portion of subsection 34(1) of the Rules before paragraph (a) is replaced by the following:
General Sittings of Trial Division
34 (1) General Sittings of the Federal Court for the hearing of motions shall be held, except during the seasonal or summer recess or on a holiday,
7 Subsection 40(1) of the Rules is replaced by the following:
Rota of Judges for Vancouver
40 (1) On or before July 1 in each year, the Chief Justice of the Federal Court shall, in consultation with the other judges of that court, establish a rota of judges for Vancouver for the twelve months commencing on September 1 of that year, excluding the seasonal recess.
8 Section 74 of the Rules is replaced by the following:
Removal of documents
74 (1) Subject to subsection (2), the Court may, at any time, order that a document be removed from the Court file if the document
- (a) was not filed in accordance with these Rules, an order of the Court or an Act of Parliament;
- (b) is scandalous, frivolous, vexatious or clearly unfounded; or
- (c) is otherwise an abuse of the process of the Court.
Opportunity to make submissions
(2) The Court may only make an order under subsection (1) if all interested parties have been given an opportunity to make submissions.
9 The Rules are amended by adding the following after Rule 87:
Scope or duration of examination
87.1 (1) Subject to subsection (2), the Court may, on its own initiative or on motion, order that the scope or duration of an examination be limited.
Opportunity to be heard
(2) The Court may only make an order under subsection (1) on its own initiative if all interested parties have been given an opportunity to make submissions.
10 Paragraph 218(c) of the French version of the Rules is replaced by the following:
- c) limiter la nature et la portée de l'interrogatoire préalable aux questions non visées par les affidavits déposés à l'appui de la requête en jugement sommaire ou en procès sommaire, ou par tout contre-interrogatoire s'y rapportant, et permettre leur utilisation à l'instruction de la même manière qu'un interrogatoire préalable.
11 Subsection 343(3) of the Rules is replaced by the following:
Motion to determine content of appeal book
(3) If an agreement is not reached within the period referred to in subsection (1), the appellant shall, within 10 days after the expiry of that period, bring a motion in accordance with rule 369 or 369.2, as the case may be, requesting that the Court determine the content of the appeal book.
12 (1) Paragraph 359(a) of the Rules is replaced by the following:
- (a) in respect of a motion other than one brought under rule 369 or 369.2, the time, place and estimated duration of the hearing of the motion;
(2) Paragraph 359(d) of the Rules is replaced by the following:
- (d) a list of the documents or other material to be used for the purposes of the motion.
13 (1) The portion of rule 360 of the Rules before paragraph (a) is replaced by the following:
Return of motion
360 A notice of motion shall not be filed unless it is made returnable
(2) Paragraph 360(c) of the Rules is replaced by the following:
- (c) in accordance with rule 369 or 369.2, as the case may be.
14 Rule 363 of the French version of the Rules is replaced by the following:
363 Une partie présente sa preuve par affidavit, relatant tous les faits sur lesquels elle se fonde dans le cadre de la requête et qui ne figurent pas au dossier de la Cour.
15 Paragraph 364(2)(f) of the Rules is replaced by the following:
- (f) any other filed material that is necessary for the purposes of the motion.
16 (1) Subsection 365(1) of the Rules is replaced by the following:
Respondent's motion record
365 (1) A respondent to a motion shall serve a respondent's motion record and file one electronic copy or three paper copies of the record no later than
- (a) in the case of a motion brought in the Federal Court, and subject to subsections 213(4) and 369(2), 2:00 p.m. on the day that is two days before the day fixed for the hearing of the motion; and
- (b) in the case of a motion brought in the Federal Court of Appeal, 10 days after the day on which they are served with the moving party's motion record.
(2) Paragraph 365(2)(e) of the Rules is replaced by the following:
- (e) any other filed material not contained in the moving party's motion record that is necessary for the purposes of the motion.
17 The Rules are amended by adding the following after rule 369:
Motions in the Federal Court of Appeal
369.1 Rule 362, subsection 364(3) and rules 366 to 369 do not apply to a motion that is brought in the Federal Court of Appeal.
Written representations only — Federal Court of Appeal
369.2 (1) Unless otherwise ordered by the Court and subject to subsection (2), all motions brought in the Federal Court of Appeal shall be decided on the basis of written representations.
Request for oral hearing
(2) A party to a motion may make a written request that the motion be heard orally. The request, together with the reasons why the motion should be heard orally, shall be attached as a separate page at the end of the party's motion record.
Reply by moving party
(3) Unless the motion is to be heard orally, the moving party may serve and file written representations in reply within four days after the day on which they are served with the respondent's motion record.
18 Subparagraph 382.4(2)(b)(i) of the English version of the Rules is replaced by the following:
- (i) give any directions that are necessary for the just, most expeditious and least expensive outcome of the proceeding, and
19 Paragraph 385(1)(a) of the English version of the Rules is replaced by the following:
- (a) give any directions or make any orders that are necessary for the just, most expeditious and least expensive outcome of the proceeding;
20 Subsection 394(1) of the Rules is replaced by the following:
Drafting of order
394 (1) When the Court gives reasons, it may direct one of the parties to prepare for endorsement a draft order to implement the Court's conclusion, approved as to form and content by the other parties or, if the parties cannot agree on the form and content of the order, to bring a motion for judgment in accordance with rule 369 or 369.2, as the case may be.
21 Form 359 of the Rules is replaced by the Form 359 set out in the schedule to these Rules.
Coming into Force
22 These Rules comes into force on the day on which they are registered.
Notice of Motion
(General Heading — Use Form 66)
Notice of Motion
(Include one of the following introductory sentences, as applicable.)
TAKE NOTICE THAT (name of party) will make a motion to the Federal Court on (day), (date), at (time) or as soon thereafter as the motion can be heard, at (place).
TAKE NOTICE THAT (name of party) will make a motion to the Federal Court under rule 369 of the Federal Courts Rules.
TAKE NOTICE THAT (name of party) will make a motion to the Federal Court of Appeal under rule 369.2 of the Federal Courts Rules.
THE MOTION IS FOR (the precise relief sought).
THE GROUNDS FOR THE MOTION ARE (the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on).
THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the motion: (affidavits or other documentary evidence to be relied on).
(Signature of solicitor or party)
(Name, address, telephone and fax numbers of solicitor or party)
TO: (Name and address of responding party's solicitor or responding party)