On January 18, 2021, the Federal Court (FC) issued its latest COVID-19 Practice Direction, which supersedes all its prior COVID-19 practice directions. The FC’s facilities in Ontario and Quebec have been closed in light of the recent public health measures to combat the pandemic. The FC will continue its operations remotely in these two provinces until further notice. These measures in Ontario and Quebec are largely the same as were in place during earlier stages of the COVID-19 pandemic.
Also on January 18, 2021, the FC issued a new Practice Direction outlining its Document Retention Schedule, including new plans for the destruction of certain archived documents.
The following is a summary of some of the highlights from these Practice Directions.
A. Updated COVID-19 Practice Direction
The FC will not hold in-person hearings in Ontario and Quebec until February 12, 2021, other than in exceptional circumstances (e.g., national security proceedings). In-person hearings in the other provinces and territories remain available upon request.
Proceedings held by videoconference will continue to use Zoom.
Members of the media and the public may attend hearings. Where hearings are to be heard remotely, they may make a request with the FC to attend virtually. Any individual attending in-person hearings is encouraged to read the guides on the safety measures taken within the FC’s facilities, namely the guide on security screening and special measures in the courtroom.
While the requirement to gown for an appearance in the FC is suspended for all hearings held by videoconference, counsel and parties are expected to wear appropriate business attire. Gowning for in-person hearings remain subject to the Notice of February 6, 2017.
Service of Documents
Parties may serve their documents electronically pursuant to the Federal Courts Rules. Under the Practice Direction, consent to electronic service will be deemed if the parties have provided an electronic address on a document filed with the FC, or if counsel for a party has an electronic address publicly listed by the counsel’s Law Society. The Practice Direction outlines processes for dealing with issues arising from electronic service.
The Registry may issue an originating document electronically.
If a document is required to be served personally but this cannot practicably be effected, the party may apply informally by letter for an order for substituted service or to validate service.
Commissioning of Affidavits
The FC will continue to make special accommodations for the commissioning of affidavits in circumstances where it is not possible or is medically unsafe for the deponent to physically attend before a commissioner. Subject to the FC’s discretion, affidavits sworn or affirmed remotely using the modes deemed acceptable in any Superior Court of any province will be accepted for filing until further notice. Scanned versions of affidavits will be accepted for filing, provided that the original be filed with the FC if specifically ordered or directed.
Electronic Filing and Fees
The Practice Direction provides updated guidance on the process for electronic filing, including email addresses as well as alternatives for larger files and the handling of confidential information. Parties remain subject to the Court’s 2013 Notice on electronic legal service and electronic filing, as well as the detailed Annex thereto.
The FC now requires electronic copies of all documents under a variety of circumstances, and will exempt the parties filing electronic documents from the requirement to file paper copies. Parties who are unable to file electronically may make special arrangements to drop off documents in Ontario and Quebec, or file paper copies at a designated drop box in the other Canadian regions. Parties filing paper copies of documents will be required to provide electronic copies at least ten days before a telephone or videoconference hearing.
Fees are payable by phone by using a valid major credit card.
B. Document Retention Schedule
Separately, the FC issued a Notice outlining its Document Retention Schedule. Departing from its historical practice of maintaining all files in “perpetuity”, the FC will begin destroying certain classes of records according to their age. In general, the schedule provides:
- Court files that were not adjudicated on the merits: documents will be kept for seven years before being destroyed.
- Court filed that were adjudicated on the merits: documents will be kept for fifteen years before destruction.
In both cases, the destruction of documents will be subject to an Advance Notice of at least three months, permitting any person to request a copy or make written submissions for an extended retention. Furthermore, the destruction of documents will have some exceptions, namely, Judgements, Orders, minutes of hearings, index, and docket entries, which will be kept in perpetuity.
Electronic documents may be retained if the Administrator is satisfied that the integrity and reliability of the document are maintained.
Phase I of the implementation will begin with approximately 33,230 immigration files closed in the years 1995–2000, inclusive.