The Federal Court (FC) and the Federal Court of Appeal (FCA) have announced revised measures to facilitate limited court operations while providing relief to litigants and their counsel during the Covid-19 pandemic. As we reported, both courts introduced a first round of such measures in mid-March.
On April 4, 2020, the FC issued an Updated Practice Direction and Order (the FC Update), which supersedes the Court’s previous Practice Direction and Order of March 17, 2020 and the associated March 20, 2020 FAQ. The following are some of the highlights of the FC Update.
Further Hearing Adjournments & Extension of Timelines
The FC Update extends the Court’s Suspension Period until May 15, 2020. The Suspension Period had previously been scheduled to end on April 17. The Court has indicated that it may further extend the Suspension Period in the future. Orders and Directions made after March 16, 2020 (i.e., the start of the Suspension Period) are not impacted by the extension.
Subject to certain exceptions, all hearings scheduled during the Suspension Period are adjourned sine die. In addition, the running of all timelines under Orders and Directions of the Court made prior to March 16, 2020, as well as under the Federal Courts Rules (the Rules), subsection 18.1(2) of the Federal Courts Act (the Act), and certain other Federal laws are also suspended for the Suspension Period. This includes both deadlines that occur following a number of days and deadlines that fall on a specified calendar date.
Once the Suspension Period comes to an end, the parties are to pick up the proceedings from the point where they stood before the Suspension Period, “as if the intervening period never existed”. Parties who require an extension of a deadline may make an informal request to the Court.
The Suspension Period is subject to three exceptions for hearings:
- First, urgent or exceptional matters, as determined on a case-by-case basis by the Court, may be by telephone or video conference.
- Second, Case Management Judges will continue to manage cases and issue orders and directions if (i) the case is urgent, (ii) the case is subject to a fixed trial or hearing date, the (iii) case is subject to a statutory deadline, or (iv) if all the parties consent to have the matter advancing during the Suspension Period.
- Third, the FC will endeavour to accommodate requests from parties for a hearing by telephone or video conference during the Suspension Period. This accommodation is subject to having all the parties’ consent, providing a joint schedule of availability, having all documents filed electronically and have them available for the other Parties in electronic format, and the hearing is less than two hours – all subject to the Court’s discretion.
In order to deal with the delays created with the Suspension Period, the FC will cancel its conventional two weeks of reduced hearings during the summer to ensure matters move forward and aren’t further delayed.
A note on PM(NOC) Proceedings
The FC Update does not specifically refer to proceedings brought in accordance with the Patented Medicines (Notice of Compliance) Regulations (Regulations), which fall under the FC’s jurisdiction and are subject to tight deadlines around certain matters such as issuing a statement of claim (within 45 days of being served with a notice of allegation) and the overall duration of the proceeding (24 months, if the “statutory stay” has not been waived). As we reported, these ‘statutory’ deadlines are not subject to the FC’s Suspension Period. Specific guidance should be sought for these matters.
Filing and Fees
The FC will require electronic copies of all documents necessary for telephone or videoconference hearings, or for the adjudication of any matter in writing during the Suspension Period. Confidential materials should not be filed using the e-filing portal, but may still be submitted electronically by making special arrangements with the Registry. Parties who file documents electronically during the Suspension Period are exempt from the requirement to file paper copies.
Effective April 6, 2020, all fees payable on filing or issuance under item 1 of Tariff A of the Rules are waived during the Suspension Period. Proceedings against the Crown are still required to pay the statutory filing fee of $2.00 when the Registry operations return to normal.
Service of Documents
Parties may serve a document electronically pursuant to the Rules. If personal service is required and this cannot practicably be effected, parties may apply informally by letter for an order of substituted service or to validate service. A day that falls within the Suspension Period is not included in the computation of time under the Rules for serving an originating document filed in the FC.
If a party has provided an electronic address on a document filed in Court, pursuant to Rule 141, that party will be deemed to have consented to electronic service of documents at that electronic address during the Suspension Period.
Commissioning of Affidavits
The FC Update confirms that all affidavits must still be sworn. However, pursuant to subsection 53(2) of the Act, and subject to the discretion of the Court, affidavits sworn or affirmed remotely using modes deemed acceptable in any Superior Court of any province will be accepted for filing during the Suspension Period. During the Suspension Period, the FC may accept the filing of a scanned version of an affidavit, provided that the original is filed with the Court within 14 days of the resumption of its regular activities.
Federal Court of Appeal
On April 2, 2020, the FCA issued an updated Notice to the Parties and the Profession (the FCA Update), extending the FCA’s Suspension Period from April 17, 2020 to May 15, 2020. This coincides with the FC’s Suspension Period. Unlike the FC Update, which supersedes the Court’s previous Practice Direction and Order, the FCA Update leaves the measures outlined in the FCA’s previous notices of March 16, 2020 and March 19, 2020 in effect.
Parties whose appeal or judicial review application was ready to be heard on March 13, 2020 may ask, on consent, for the matter to be heard remotely. Urgent matters, as before, can also be heard remotely.
Fees payable under item 1 of Tariff A of the Rules are waived for the filing of electronic documents or paper documents with the Registry during the Suspension Period. Filing via email is strongly encouraged, however, those unable may file paper copies at locations designated for document drop-off at all registry counters.
As with matters arising under the FC Update, litigants should consult with their counsel to understand how the FCA Update might impact their cases and ensure that they navigate these changes appropriately.
Thank you to Caroline Henrie and Christopher A. Guerreiro for their help in drafting this article.
For more information on the legal implications of COVID-19, please consult our COVID-19 Hub. As a full service global firm with offices across Canada, Norton Rose Fulbright is closely monitoring this evolving situation over a number of practice areas including employment and labour, risk advisory, banking and finance, corporate, M&A and securities, and dispute resolution and litigation, and across a variety of industries including energy, infrastructure, mining and commodities, financial institutions, life sciences and healthcare, technology and innovation, and transport.