Global review of the Federal Courts Rules

In a nutshell

The CBA’s Immigration Law Section, Intellectual Property Law Section, and the Ontario Bar Association (OBA) Class Action Section collaborated to offer comments on the global review of the Federal Courts Rules.

Modernization, electronic filings and right to privacy and dignity

The bulk of the Sections’ comments focus on balancing efficiency, the right to privacy and dignity, and access to justice. Particularly in immigration law, the CBA Sections emphasize the need to avoid inadvertently making justice less accessible, especially for self-represented litigants who may not have an email address or adequate internet access.

If electronic service becomes that it applies between counsel by default and provide for either:

• an exemption for self-represented litigants unless they consent, or
• an exception for parties who can demonstrate they lack an email address or regular internet access.

The burden in the latter option should be low, ensuring that the court registry “cannot, without good reason, refuse a document for filing on this basis.”

Given the intensely personal nature of immigration proceedings, and because parties may not control all materials in the court’s record, the CBA continues to recommend that pleadings, affidavits, exhibits, and the Certified Tribunal Record should not be made publicly available online. The CBA urges the federal courts to follow the lead of superior courts in protecting confidential information while upholding the open court principle.

Refugee claimants and their relatives, including children, risk their security, identity and dignity at risk in these proceedings. “[I]t is our strong position that access to justice should not be curtailed by fear of exposure of facts that are inherent to human dignity and risk security (sexual orientation, gender, political opinion, religion, medical circumstances, address, employment and education histories),” the submission argues, adding that such exposure could also lead to victimization through identity theft or knowledge of property and assets.

Role of associate judges

The Intellectual Property Law Section acknowledges that associate judges are experts in case management and procedure. However, it cautions that expanding their role to include presiding over motions for injunctive relief, contempt, and summary judgment raises significant legal considerations beyond their current expertise. The Section argues that motions with substantial consequences, including those that could determine the outcome of a matter early on, should remain under the jurisdiction of judges.

Class actions

The OBA Class Action Section proposes modifications to the Federal Courts Rules inspired by recent changes in Ontario aimed at streamlining the process. These suggestions include measures to reduce delays and costs related to carriage motions and mandatory dismissal for delay, which would address dormant class proceedings.

Other considerations

Among other matters discussed, the Immigration Law Section opposes allowing non-lawyers and consultants to represent clients before the Federal Courts. “The rights at stake are very high involving fundamental rights, livelihood, and life and death,” the submission reads. “The issue of ghost representatives and consultants impersonating clients is serious, not to mention a criminal offense.”

As for confidential documents, the IP Law Section agrees that clarity is needed for the requirements and procedures applicable to their filing. It also recommends that the Rules explicitly allow the practice of obtaining relief from the requirement that a formal motion record be filed for all interlocutory motions, which would be especially helpful to self-represented litigants.

The CBA Section also raises several procedural concerns, stating that the Rules should not be amended to allow the summary dismissal of an appeal. However, they suggest that Rule 300 be amended to allow trademark infringement proceedings to be brought by way of application.

Read the submission.