On April 28 the Federal Court issued a Notice to the Parties and the Profession containing new guidelines for the trial management of actions. Among other things, they set new deadlines for various pre-trial steps and for the filing of motions, provide guidance regarding the scheduling and agenda of trial management conferences and streamline the handling of expert witnesses. The guidelines follow the court’s previous recommendations from June 24, 2015 (reported here) to increase proportionality in complex litigation and streamline practice and procedure, and are intended to ensure the most efficient, expedient and proportionally fair use of trial time for actions. The guidelines are effective immediately and apply to all actions scheduled for five or more days in Federal Court.
Instrument: Trial Management Guidelines
Date released: April 28, 2017
The new guidelines were discussed at the Canadian Bar Association’s 2017 IP Day Town Hall Meeting, held on May 11, 2017. At the Town Hall, the court also indicated it was preparing for the upcoming changes to the Patented Medicines (Notice of Compliance) Regulations (PM(NOC) Regulations), that will result from implementation of the Comprehensive Economic and Trade Agreement between Canada and the European Union (see our report here for the latest on the implementation of CETA). As we reported, the new PM(NOC) Regulations will replace the current summary proceedings with full actions. Although the details of the new single-track regime have yet to be published, the Federal Court appears to be turning its mind to the challenges of hearing PM(NOC) proceedings as actions within the same 24-month stay period.
The Notice contains 21 guidelines. Some set new deadlines for pre-trial steps and the filing of motions as well as introduce various requirements. Others encourage, without strictly requiring, parties to collaborate on issues such as factual statements, documents filing and presenting evidence at trial. The new guidelines include:
- Motions. No motion may be brought within 60 days of trial without leave of the case management judge or the trial judge. While motions may be necessary during trial, contested motions at trial are discouraged.
- Trial management conference. Parties shall requisition a trial management conference to take place at least two months before trial, subject to an extension or abridgement of time granted by the trial judge and are to include in the requisition a proposed agenda and timing of any motions that may need to be brought before the court.
- Experts. The guidelines include several recommendations for dealing with experts, including that any objections to expert reports must be made within 30 days of service and no later than 30 days before trial, expert reports to be relied on at trial must be submitted at least two weeks before trial, and by submitting the report of an expert to the court, the party is undertaking to call this expert at trial; examinations in chief of experts should be concise and limited to the key relevant issues.
- Science primer. Parties are encouraged to prepare and deliver a joint primer on the relevant technology and scientific principles in advance of trial on a date determined by the trial judge.
- Joint statements of issues and facts, book of documents. Parties are encouraged to submit a joint statement of issues two weeks before trial. Parties are also encouraged to submit an agreed statement of facts and book of documents, including admissions on authenticity, at least one week before trial.
- Proposed trial schedule and list of witnesses. Parties shall submit a proposed schedule for trial proceedings at least two weeks before trial, with any disagreements regarding the schedule to be determined at the judge’s discretion. Parties shall exchange a brief description of the proposed areas of testimony of fact witnesses at least two weeks before trial and are encouraged to discuss the use of witness statements and fact stipulations where cross-examination is not necessary.
- Compendia and written arguments. Parties shall provide to the trial judge compendia, in paper and electronic format, including only the relevant excerpts they will rely on at trial. Parties are encouraged to submit joint compendia. Absent a contrary direction, parties shall submit written arguments at the end of trial in electronic and paper format and are encouraged to keep the written arguments to no more than 50 pages.