Like virtually every person, family, and business around the world, the Federal Court of Canada (the “Court”) was forced to suspend its normal operations this year as a result of the global COVID19 pandemic. Following closure of the Court to visitors on March 13, 2020, the Court issued a practice direction and order on March 17, 2020 which suspended most deadlines until April 17, 2020 (the “Suspension Period”), and modified various other elements of Court procedure. The Suspension Period was later extended to May 15, and then further extended to May 29, 2020, by subsequent orders and practice notices. Most recently, on May 29, 2020, the Court further extended this Suspension Period to June 15, 2020.
In spite of this general Suspension Period, the Court has continued operating throughout the pandemic with the help of technological solutions, such as its electronic document filing portal, as well as changes to its standard rules of practice.
Trademark owners, as well as other litigants who need the Court to grant them relief or to enforce their intellectual property rights, continue to have access to the remedies provided by the Court; however, the manner in which parties litigate before the Court has changed – possibly forever. This article explains some of the changes to the way in which litigants will access the Court for the foreseeable future.
Suspension of Timelines
The Court’s Suspension Period affects multiple types of timelines for litigation matters. The affected timelines include:
- Orders and Directions of the Court made prior to March 16, 2020;
- the Federal Courts Rules; and
- subsection 18.1(2) of the Federal Courts Act (regarding applications for judicial review of decisions of a federal board, commissioner, or tribunal).
A similar Suspension Period has been put in place by the Federal Court of Appeal, the appellate court with the authority to hear appeals from decisions of the Court and from certain federal administrative tribunals, such as the Copyright Board. As a result, the timelines for all such appeals have also been extended to June 15, 2020.
Notably, the Court’s Suspension Period does not affect deadlines under the Trademarks Act, including the time for appealing a decision of the Registrar (such as a decision in an opposition or summary non-use cancellation proceeding) to the Court. Instead, this time period has been extended by recurring blanket extensions issued by the Registrar of Trademarks, the most recent of which (at the time this article was written) extended all deadlines until June 15, 2020 at the earliest.
With the exception of this timeline under the Trademarks Act, timelines for filing documents and taking other procedural steps will be subject to a further extension. Following the expiry of the Suspension Period, the Court has also granted a blanket extension of time for the filing of all documents and for the taking of all procedural steps through to June 29.
Conduct of Hearings and Videoconferencing
The Court has adjourned all hearings scheduled to occur during the Suspension Period sine die (i.e., without providing a new date on which hearings would proceed). These general adjournments are subject to certain exceptions, such as: “urgent” matters (with “urgency” determined on a case-by-case basis); case management hearings; and on request of a party (subject to certain conditions, such as consent of the other parties).
In this and other respects, the Court has never really “shut down” during the Suspension Period. The Court continues adjudicating motions in writing, and has identified certain matters at its own initiative which are ready to proceed. With respect to these latter matters, the Court states that it has contacted parties to discuss proceeding via videoconference. The Federal Court of Appeal, as well, has adopted a similar approach, in which appropriate cases have been identified and arranged to proceed via videoconference.
Even after the Suspension Period, the Court will likely continue to conduct hearings via videoconferencing platforms, such as Zoom, for some time. It will not hold in-person hearings until at least July 13, 2020. In this regard, the Court has shown willingness, in some circumstances, to order that the hearing of an application for judicial review proceed via videoconference, even where proceeding in this manner is opposed by one of the parties.
For instance, Natco Pharma (Canada) Inc. v. Canada (Health) (2020 FC 618 – “Natco”)) concerned an application brought by a generic pharmaceutical company to compel the Minister of Health to issue a Notice of Compliance for a generic drug, which would have allowed the applicant to bring the drug to market. The patentee/innovator company, a respondent in the application, opposed the applicant’s request that the application be heard via videoconference. In its decision in Natco, the Court recognized that elements of the hearing made it appropriate for proceeding via videoconference, including that the application primarily involved statutory interpretation, and relevant facts were not seriously in dispute. Yet the Court also recognized that the effects of the global pandemic mean that changes are necessary, and parties must adapt to the new reality:
I must also take into account the current reality. While the parties may prefer a hearing in person because that is what they are used to, the reality is that it is simply not possible to hear this case in that way at the present time. This situation may not change for an unknown period into the future (at para. 37).
In other words, the Court realizes that the pandemic will continue to affect its normal operations indefinitely, but believes that parties should be prepared to proceed, albeit in a modified way, in order to allow matters to be heard.
The Court has directed parties to use its E-filing portal during the Suspension Period for all documents, with the exception of documents which contain confidential information. The Court has also relieved parties of the requirement to file paper copies of documents during this period (this was, in normal times, required for certain documents even when the E-filing portal was used, such as documents over 500 pages). The Court has also ordered that a party is deemed to have consented to electronic service if it has provided an electronic address on a document filed with the Court.
The Court has indicated that it will accept affidavits sworn or affirmed using the procedures for remote commissioning of documents deemed acceptable by any Superior Court of any province. Most provinces have instituted procedures for remotely commissioning affidavits, including British Columbia. Parties should keep in mind, however, that they are still required to file paper copies of affidavits filed through the E-filing portal – including affidavits sworn remotely – within two weeks of the resumption of the Court’s regular operations.
The end of the Suspension Period will likely bring an end to some of these rules. For instance, parties will likely no longer be deemed to consent to electronic service, and the requirement to file accompanying paper copies of certain documents will once again be in force. However, the Court has undoubtedly seen an increase in E-filing during this period. As both the Court and practitioners become more familiar with processes for electronic service and E-filing, the pandemic will likely precipitate numerous long-lasting changes to Federal Court practice.
Conclusion: litigants can – and should – proceed using technological solutions
There is a growing expectation from Courts across Canada that parties should be able to adapt to new Court processes by using videoconferencing platforms and other technological solutions. Justice Myers of the Ontario Superior Court, when faced with a dispute about whether or not examinations for discovery ought to proceed via teleconferencing software, bluntly assessed our current reality as follows:
In my view, the simplest answer to this issue is, “It’s 2020”. We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools anymore. We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back (Arconti v Smith, 2020 ONSC 2782 at para. 19).
Although articulated by a different court, this sentiment should be kept in mind for all federal matters as well. The global pandemic does not constitute an insurmountable barrier to pursuing litigation, nor does it serve as a blanket excuse for delaying procedural steps.
Even beyond the pandemic, the Court and practitioners alike can no longer dismiss the convenience (and sometimes the necessity) of using technological solutions to aid in the more efficient conduct of litigation. While the pandemic has had serious and unfortunate effects for many people across the world, it has helped speed up changes in the way the Court operates. These changes will hopefully continue to improve access to Canadian courts for many years to come.