On April 10, 2021, the Rules Committee of the Federal Court of Appeal and the Federal Court (the Rules Committee) launched a consultation on amendments to the Federal Courts Rules (the Rules) on proportionality, abuse of process, and Federal Court of Appeal motions.

In the Regulatory Impact Analysis Statement (RIAS), the Committee has stated these amendments are necessary to “allow the Courts to strike a balance between the importance and the complexity of the case and the amounts involved”, “provide the Courts with the necessary tools to deal directly with dysfunctional or destructive conduct in the litigation process”, and “increase the effectiveness of the Federal Court of Appeal (FCA) in managing motions and access to justice for litigants”.

Proportionality and abuse of process

The proposed amendments follow an October 16, 2012 report (the Report) that found that certain parties tend to make “excessive or disproportionate use of rights under the Rules”.

The Report provided examples of such problematic behaviour including the initiation of multiple proceedings and motions concerning the same subject matter (for which the Court does not presently have consolidation powers), as well as refusals motions seeking a ruling on as many as over 1,000 refusals from examinations for discovery.

The Report recommended, among other things, that new regulatory tools be developed to curb the excessive or abusive use of court proceedings and to ensure that parties take proportionate steps in conducting their litigation. Some of the key proposed amendments include:

  • Rule 3 — General principle — It is recommended that this rule be replaced by a new rule that introduces the principle of proportionality, the objective of which being “to resolve disputes brought before the Courts, taking into account the complexity of the dispute, and the importance of the issues and the amounts at stake”.
  • Rule 87.1 — Examinations — It is recommended that a new rule be added to allow the Courts to limit the scope or duration of any examination provided for by the Rules, in accordance with the principle of proportionality.

Motions Before the FCA

The Rules Committee has also proposed an amendment to allow the FCA to triage oral motion hearing requests in order to determine which motions should be heard orally as opposed to in writing.

The RIAS states that the practice of hearing motions before a judge at the FCA is largely impractical and ineffective given the small number of judges and the fact it is an itinerant court. The proposed amendments are intended to more clearly reflect the reality that motions before the FCA proceed in writing unless otherwise ordered.

Some of the proposed amendments include:

  • Rule 369.1 — Motions in the FCA — This new rule would specify that existing rules 362 , 364(3), and 366–369 do not apply to motions in the FCA. These provisions relate to service and filing requirements for the notice of motion and motion record; the form of written submissions required; documents to be included in the record; and requests for an oral hearing.
  • Rule 369.2 — Written representations only — This new rule would require that all motions before the FCA be made in writing, unless the Court decides otherwise on its own initiative or at the request of a party to the motion. It also specifies how to request an in-person hearing and prescribes the time limit within which the applicant may file a response to the motion record of a respondent.

Other Amendments to the Rules

The Rules Committee also published recommendations for amending the Rules on enforcement and limited scope representation. The enforcement amendments are intended to address practical, procedural and legal difficulties with considerations of efficiency, consistency, access to justice, and the sensible use of judicial resources. The amendments related to limited scope representation would allow for a party to be represented by a lawyer on a defined, limited mandate (i.e., for a portion of the Court proceeding) in order to promote better access to justice and efficiency of the Court process.

Lastly, the Rules Committee recommended changes to the definitions of “holiday” to allow for Courts’ registries to close on holidays for court staff, and to change the term “Christmas recess” to “seasonal recess” to reflect the fact that not all litigants celebrate Christmas.

Interested persons may make representations in writing concerning the proposed Rules within 60 days after the publication of the notice of the proposed amendments (June 9, 2021).

Links to the amendments as published in the Canada Gazette, Part I: