Canada Gazette, Part I, Volume 155, Number 15: Rules Amending the Federal Courts Rules (Limited Scope Representation)

April 10, 2021

Statutory authority
Federal Courts Act

Sponsoring agency
Courts Administration Service

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Rules.)

Issues

There is a need to amend the Federal Courts Rules (“Rules”) to provide litigants with more flexibility in the scope of mandate for their lawyer. Currently, the Rules allow a litigant only to be self-represented or else represented by a lawyer with an unlimited mandate (i.e. for the whole proceeding in Federal Court of Appeal or Federal Court), which may not be feasible for litigants with limited financial means. As a result, some litigants who want a representative are unable to retain a lawyer to represent them in Court.

Background

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 make, 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 designated by the Chief Justice of the Federal Court of Appeal, and five judges and one prothonotary designated by the Chief Justice of the Federal Court; the Chief Administrator of the Courts Administration Service; five members from 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.

The Rules Committee normally meets biannually to review amendment projects as well as proposals for amendment (though no meetings were held in 2017 – 18 due to quorum issues). At the meeting of November 14, 2014, the Rules Committee approved the publication of a discussion paper regarding “unbundling of legal services,” an issue that had been discussed within the Rules Committee in 2013 and 2014 (see the discussion paper — Providing for Limited Scope Representation in the Federal Court and the Federal Court of Appeal). The Rules Committee reviewed public feedback at its May 29, 2015, meeting and decided to proceed with a drafting project to amend the Rules to allow limited scope representation in the Federal Court of Appeal and the Federal Court. Drafting questions were addressed at meetings on November 27, 2015, and June 3, 2016, a draft set of amendments was then reviewed at the meeting on October 28, 2016, and then following the pause in Rules Committee meetings noted above, an updated draft was endorsed at the Rules Committee's meeting on November 29, 2019.

Objective

The proposed amendments to the Rules would add an option for a party to be represented by a lawyer (a “solicitor”) on a defined, limited mandate (i.e. for only part of the Court proceeding). This would increase the proportion of proceedings in the Federal Court of Appeal and the Federal Court in which litigants are represented by a lawyer, whether on a limited or unlimited basis. Allowing litigants to have a lawyer represent them for only part of a legal proceeding would provide litigants with better access to justice while also making the Court process more efficient.

Description

The proposed amendments to the Rules are set out below.

Regulatory development

Consultation

The Rules Committee published a discussion paper about the unbundling of legal services on November 26, 2014 [see the discussion paper — Providing for Limited Scope Representation in the Federal Court and the Federal Court of Appeal]. The Rules Committee reviewed public feedback at its May 29, 2015, meeting and, given the strong support for the proposal, decided to proceed with a drafting project to amend the Rules to allow limited scope representation in the Federal Court of Appeal and the Federal Court.

The Federal Courts Act provides that the rules concerning the practice and procedure before the Federal Court of Appeal and the Federal Court are made by the Rules Committee, subject to the approval of the Governor in Council.

The proposed procedural amendments have been recommended by the Rules Committee.

Modern treaty obligations and Indigenous engagement and consultation

The amendments will have no impact on modern treaty obligations. The amended Rules are intended to provide greater flexibility for all litigants in the Federal Court of Appeal and the Federal Court, including litigants who are First Nations, Métis, or Inuit, regarding their choice of lawyer.

Instrument choice

Pursuant to section 46 of the Federal Courts Act, the rules established by the Rules Committee, and codified in the Federal Courts Rules, regulate the practice and procedure in the Federal Court of Appeal and in the Federal Court. From time to time, the Chief Justices of the Federal Courts also enact practice directions to advise the profession on the interpretation of the Federal Courts Rules and to provide guidance on matters of practice that are not set out fully in the Rules. However, as between the Federal Courts Rules and practice directions, only the former are law. Furthermore, practice directions are not as visible and may be hard to find. For the current amendment proposal, it is therefore preferable to proceed by way of amendment to the Federal Courts Rules. This instrument provides

Regulatory analysis

Benefits and costs

The Rules currently allow a party only to be self-represented or else fully represented by a lawyer, yet some litigants cannot afford a lawyer's fees for an unlimited mandate (that is, for the whole Court proceeding). Public research studies show that the primary reason for self-representation is financial, and other research demonstrates that representation by a lawyer is a key factor driving successful litigation outcomes.

The proposed amendments to the Rules would add an option for a party to be represented by a lawyer on a defined, limited mandate (that is, for only part of the Court proceeding). The amendments would therefore allow a litigant to be represented by a lawyer in a proceeding for which the litigant would currently proceed alone. This increases their chances of a successful litigation outcome.

By way of example, litigants might choose to be represented by a lawyer on a limited scope mandate in an immigration (IMM) proceeding in the Federal Court for the application for leave (and possibly including a motion for stay of deportation, which is sometimes filed together with an application for leave). For these initial steps, it would be less costly to retain a lawyer for the limited mandate, rather than a broader and more expensive retainer with a lawyer for all possible steps that might be needed in an IMM file. If leave were granted by the Court, the file would proceed to a full oral hearing on the merits, and the litigant and their lawyer could then negotiate a second retainer, or possibly be granted legal aid at that stage.

Representation by a lawyer would also facilitate a more efficient proceeding for the Court, Registry, and litigants, because self-represented litigants often have limited understanding of and experience with Court practice and Rules. Furthermore, in addition to providing benefits to the judicial process overall, the proposed amendment would provide additional opportunities for lawyers, who could offer clients a limited scope retainer that would not currently be allowed under the Rules. Some empirical research is available with respect to limited scope representation initiatives in other jurisdictions, indicating overall satisfaction by stakeholders, though with some qualification from lawyers, some of whom think that a full retainer would provide better results for their client and the justice system.

The proposal is not expected to have any cost implications.

Small business lens

Analysis under the small business lens determined that the regulatory changes will not impact small businesses in Canada.

One-for-one rule

The “one-for-one” rule does not apply as there is no incremental change in the administrative burden on business.

Regulatory cooperation and alignment

Some provincial jurisdictions have already moved ahead with rules changes or pilot projects that meet the same objective as set out above, including British Columbia, Ontario and Alberta. Although there is policy alignment between the current proposal and the initiatives in these provinces, it is noted that each province has adopted a unique framework that fits within their particular civil rules of procedure. Therefore, given that each jurisdiction has unique Court Rules, there are differences in each jurisdiction's implementation of the limited scope representation (also known as unbundling) framework, even though there is general policy alignment.

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

The proposed amendments to the Rules are intended to provide greater flexibility for litigants in the Federal Court of Appeal and the Federal Court, including litigants who fall within the gender-based analysis plus (GBA+) analytic framework. For example, the limited scope representation option would provide greater flexibility for litigants with limited financial means to hire a lawyer to represent them in Court.

Implementation, compliance and enforcement, and service standards

The amended Rules will come into force on the day on which they are registered.

Contact

Andrew Baumberg
Secretary of the Rules Committee of the Federal Court of Appeal and the Federal Court
Ottawa, Ontario
K1A 0H9
Telephone: 613‑947‑3177
Fax: 613‑943‑0354
Email: andrew.baumberg@fct-cf.gc.ca

PROPOSED REGULATORY TEXT

Notice is given, pursuant to paragraph 46(4)(a) footnote a of the Federal Courts Act footnote b, that the rules committee of the Federal Court of Appeal and the Federal Court, pursuant to section 46 footnote c of that Act and subject to the approval of the Administrator in Council, proposes to make the annexed Rules Amending the Federal Courts Rules (Limited Scope Representation).

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: andrew.baumberg@fct-cf.gc.ca).

Ottawa, March 11, 2021

Darlene Carreau
Chief Administrator, Courts Administration Service

Rules Amending the Federal Courts Rules (Limited Scope Representation)

Amendments

1 The definitions address for service and solicitor of record in rule 2 of the Federal Courts Rules footnote 1 are replaced by the following:

address for service
means a party’s address for service under rule 126.1. (adresse aux fins de signification)
solicitor of record
means a solicitor of record as described in rule 123 or 124. (avocat inscrit au dossier)

2 Paragraph 66(2)(c) of the Rules is replaced by the following:

3 Rule 119 of the Rules is renumbered as subsection 119(1) and is amended by adding the following:

Limited scope representation

(2) Except in respect of a party referred to in rule 121, representation by a solicitor may be limited in scope to only those aspects of the proceeding that are within a solicitor's mandate that is agreed to by the individual and the solicitor.

4 Rules 122 to 124 of the Rules are replaced by the following:

Rights and obligations

122 Subject to paragraphs 146(1)(b) and 152(2)(a) and unless the Court orders otherwise,

Solicitor of Record

Solicitor of record

123 (1) If a party takes a step in a proceeding by filing or serving a document signed by a solicitor, that solicitor is the solicitor of record for the party.

Limited scope representation

(2) If a solicitor is providing limited scope representation to a party, the solicitor is the solicitor of record only in respect of those aspects of the proceeding that are within the solicitor's mandate.

Appointment, change and removal of solicitor of record

124 (1) Subject to subsections (2) and (3), a party may appoint a solicitor, or change or remove its solicitor of record, by serving and filing a notice in Form 124A, 124B or 124C, as the case may be.

Limited scope representation — notice of appointment

(2) A party may appoint a solicitor to provide limited scope representation by serving and filing a notice of limited scope representation, in Form 124D, that is signed by the party and the solicitor and that sets out

Limited scope representation

(3) However, with leave of the Court, a party may appoint a solicitor to provide limited scope representation before serving and filing the notice referred to in subsection (2).

Request for leave

(4) The request for leave shall be made in open court by the solicitor and shall summarize the scope of their mandate. If the request is granted, the party shall file the notice referred to in subsection (2) within two days after the day on which leave is granted.

5 Rule 126 of the Rules is replaced by the following:

Cessation of representation

126 A solicitor is deemed not to represent a party if the solicitor dies or ceases to act for the party for any of the following reasons:

6 The Rules are amended by adding the following before Rule 127:

Address for Service

Party's address for service

126.1 (1) Subject to subsections (2) and (3), a party's address for service is

Exception — limited scope representation

(2) If a party is represented by a solicitor who is providing limited scope representation and who has agreed to accept the service of documents relating to their mandate, the party's address for service in relation to those documents is the address set out for that purpose in the notice of limited scope representation.

Exception — Crown or Attorney General of Canada

(3) The address for service for the Crown or the Attorney General of Canada is the address of the office of the Deputy Attorney General of Canada in Ottawa.

7 Paragraph 139(1)(d) of the Rules is replaced by the following:

8 The Rules are amended by adding the following after rule 148:

Service during limited scope representation mandate

148.1 If a party has appointed a solicitor who is providing limited scope representation and who has agreed to accept the service of documents relating to the mandate, all documents relating to their mandate shall, during that mandate, be served on the solicitor. All other documents shall be served on the party.

9 Rule 209 of the Rules is repealed.

10 Rule 340 of the Rules is replaced by the following:

Solicitor of record and address for service

340 In an appeal from the Federal Court to the Federal Court of Appeal, the solicitor of record and the address for service of a party on the appeal shall be the same as they were in the first instance, unless the solicitor of record in the first instance provided limited scope representation and their mandate did not include the appeal.

11 The Rules are amended by adding the following after Form 124C:

FORM 124D

Rule 124

Notice of Limited Scope Representation

(General Heading — Use Form 66)

Notice of Limited Scope Representation

The plaintiff (or as the case may be) has appointed (name) as solicitor to provide limited scope representation in the proceeding.

1 SOLICITOR'S MANDATE

The solicitor's representation of the plaintiff (or as the case may be) in this proceeding is limited to the following: (Set out the scope of the mandate)

☐ DURATION OF MANDATE:

(If appointment is for a specific day or periode, provide date(s))

☐ SUBJECT-MATTER: (Select all that are applicable and provide a description of the services to be provided, including any scheduled appearances.)

The solicitor's representation of the plaintiff (or as the case may be) ceases, WITHOUT FURTHER NOTICE, on completion of the mandate.

2 DESIGNATION FOR SERVICE OF DOCUMENTS

☐ SERVICE ON SOLICITOR (Service of documents relating to the solicitor's mandate is to be made on the solicitor.)

Address: (If service is to be made on the solicitor)

☐ SERVICE ON PARTY (Service of documents relating to the solicitor's mandate is to be made on the party.)

3 DECLARATIONS

The undersigned solicitor and plaintiff (as the case may be) each declare that this notice accurately describes the solicitor's mandate and the arrangements for the service of documents relating to that mandate.

(Date)

(Signature of solicitor of record)

(Name, address, telephone and fax numbers of solicitor of record)

(Signature of plaintiff (as the case may be)

(Name, address, telephone and fax numbers of plaintiff (as the case may be)

TO: (Name and address of other solicitors or parties)

12 The table to Tariff B of the Rules is amended by adding the following in numerical order:
Item Assessable Service Number of Units
Column I Column II Column III Column IV Column V
29 Notice of limited scope representation 1 1 1 1 1

Coming into Force

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