The Federal Court of Appeal (FCA) provided updated guidance for resuming hearings starting September 1, 2020 and clarified the effect of the federal Time Limits and Other Periods Act (COVID-19) on timelines for commencing and conducting litigation in the FCA. Both the FCA and the Federal Court confirmed that all Practice Directions, judgments, orders and directions from both courts remain in full force and effect.
Resumption of in-person hearings
On September 1, 2020, the FCA issued a Notice to the Parties and Profession (Notice) confirming that three types of hearings will be held during the Court’s fall session, beginning on September 1, 2020:
- In person hearings, where all counsel appear in person;
- Remote hearings; and
- Hybrid hearings, where some counsel appear in person and others appear remotely.
Courtrooms remain accessible to the public and the media, subject to physical distancing measures. Remote access will also be made available for all hearings (including those held in person). The FCA encourages counsel, the parties and members of the public to review the recommended preventative measures for in-person Court operations. The Court’s hearing list will reflect which cases are heard remotely or in person.
Timelines in proceedings before the Federal Courts
In the September 1 Notice, the FCA addressed the effect of the federal Time Limits and Other Periods Act (COVID-19) (Act) which retroactively suspends various limitation, prescription, and time periods between March 13, 2020 and September 13, 2020. While the Act suspends time limits under the Federal Courts Act, it does not suspend timelines under the Federal Courts Rules or Court orders. Proceedings before the FCA continue to be governed by the Court’s June 11, 2020 Notice.
Also on September 1, the Attorney General of Canada sent a letter to the FCA advancing a contrary interpretation of the Act that would also have suspended time limits set by orders and directives of the Court. On September 3, the FCA issued a Direction (FCA Direction) rejecting this interpretation:
The Court directs that the Attorney General’s position concerning the interpretation and effect of section 6, in so far as it extends to the time limits under the Rules and orders made thereunder, is incorrect in law and should not be followed. The Federal Courts Rules, S.O.R./98-106 and this Court’s Practice Directions, judgments, orders and directions remain in full force and effect.
The Chief Justice found that it was not Parliament’s intention to interfere with the Federal Courts Rules, nor to interfere with the management and governance of ongoing proceedings as it would invade a core judicial function. Orders and directions are law until set aside—they have full legal effect until amended, ousted or invalidated by a later specific court order or direction or by specific legislation.
Following the FCA’s Notice and Direction, the Federal Court issued an updated Practice Direction on September 8, 2020 (FC Notice), reiterating the FCA’s position: “Notwithstanding the enactment of the Act, this Court’s COVID-19 Orders and COVID-19 practice directions, as well as its intervening judgments, orders and directions, remain in full force and effect.”
Accordingly, all Practice Directions, judgments, orders and directions of both Courts remain in full force and effect.
Thank you to Caroline Henrie, Christopher A. Guerreiro and David Yi 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.