On April 10, 2021, proposed amendments to the Federal Courts Rules ("Rules") were published in the Canada Gazette for consultation. The purpose of the amendments is to address the issues of proportionality, abuse of process, managing motions and access to justice.
The consultation was launched by the Rules Committee of the Federal Court of Appeal and the Federal Court. As part of the process, the Committee released a Regulatory Impact Analysis Statement ("RIAS")1 that discusses the deficiencies of the current Rules. The Committee noted that at present, the Rules do not "provide parties and decision-makers with sufficient tools to enforce or promote proportionality" and that new regulatory tools should be developed in order to limit excessive use or abuse of the court process to ensure that parties take proportionate steps in their litigation. Moreover, other amendments to the Rules are necessary to address practical, procedural and legal issues of enforcement and representation of parties.
One proposed amendment of note is to Rule 3, which serves as a guide to interpretation of the Rules. The current Rule 3 states that the Rules are to be interpreted and applied to secure "the just, most expeditious and least expensive determination of every proceeding on its merits". The Committee proposes that the Rule is replaced with the following language:
3. These Rules shall be interpreted and applied
(a) so as to secure the just, most expeditious and least expensive outcome of every proceeding; and
(b) with consideration being given to the principle of proportionality, including consideration of the proceeding's complexity, the importance of the issues involved and the amount in dispute.
The proposed amendment will explicitly introduce the principle of proportionality, with the objective of ensuring that the Rules are interpreted and applied to provide procedures within the Rules that allow for the "just, most expeditious and least expensive outcome of every proceeding". The current Rule speaks of securing the "just, most expeditious and least expensive determination of every proceeding on its merits". Therefore, under the amendments it would appear that the Rules will explicitly contemplate the reality that not every proceeding before the Court will be determined on its merits, depending on the complexity of the dispute and the importance of the issues and the amounts at stake.
The Committee proposed other amendments to the Rules in order to increase proportionality and limit abuse of process. For instance, Rule 74, which deals with removal of documents improperly filed, would be amended to allow the Court to order that a document be removed from the judicial record on the grounds that it is "outrageous, frivolous, vexatious, or clearly unfounded". Rule 87.1 would be added to allow the Court to limit the duration of any examination provided for by the Rules, in accordance with the principle of proportionality.
The Committee also proposed amendments to the Rules governing motions before the Federal Court of Appeal. The RIAS notes that oral motions before a judge are neither practical nor effective given the limited number of judges at the Federal Court of Appeal. The amendments would allow the Court to triage oral hearings and manage the processing of motions.
The Rules Committee also published recommendations regarding the enforcement of orders and limited scope representation to allow parties to be represented by solicitors on a defined, limited mandate (i.e., for a portion of the Court proceeding).
In recent years the Court has implemented various mechanisms to promote proportionality and streamline complex proceedings, including amending the Rules to introduce summary trial procedure. However, the new proposed amendments to the Rules would further ensure that litigation would be streamlined for simple cases or cases where the monetary amounts at issue are lower and do not justify the same costs as more complex cases, thus promoting access to justice while making the Court process more efficient.
Interested persons may make representations in writing concerning the proposed Rules by June 9, 2021.2
1 See Canada Gazette, Part I, Volume 155, Number 15: Rules Amending the Federal Courts Rules at:
2 All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Andrew Baumberg, Secretary to the Rules Committee, Federal Court, 90 Sparks Street, 12th Floor, Ottawa, Ontario K1A 0H9 (tel.: 613-947-3177; fax: 613-943-0354; email: email@example.com).
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