As the standard Federal Court action progresses beyond the initial stages, there are many rules that inherently have an effect on the duration of a standard federal action. These procedures, which speed-up and/or circumvent the full litigation of an action, are provided in Table 3.
Table 3 – Standard Rules that Speed-up the Full Litigation of a Federal Action
Category
|
Description
|
Rule(s)
|
1) Pre-Trial Settlement Discussions
|
Within 60 days after the close of pleadings, the solicitors for the parties must discuss the possibility of settling any or all of the issues in the action and of bringing a motion to refer any unsettled issues to a dispute resolution conference.
|
R.257
|
2) Pre-Trial Conferences
|
After the close of pleadings, a party who is not in default and is ready for trial may serve and file a requisition for a pre-trial conference. At the pre-trial conference, solicitors of record and the parties discuss such issues as: settlement possibilities, simplification of the issues, the possibility of obtaining admissions, and/or the estimated duration of the trial.
|
R.258(1), R.263
|
3) Trial Management Conference
|
A judge or prothonotary before whom an action has been set down for trial may hold a conference either before or during the trial, to consider any matter that may assist in the just and timely disposition of the action. Such a conference will not disqualify the judge or prothonotary from presiding at the trial.
|
R.270
|
c. General Extension and General Abridgement
Under certain circumstances, time periods applying to either an action or an application can be adjusted. These particular circumstances are provided in Table 4.
Table 4 – Extension/Abridgement of Time Periods
Category
|
Description
|
Rule(s)
|
1) Extension by Consent
|
A time period mandated by the general rules can be extended, one time only, and by up to half of the time period being extended, if all of the parties consent. There are few time periods that cannot be extended by consent, which are those for the service of the Statement of Claim, Notice of Application, and Notice of Appeal.
|
R.7(1)-(3)
|
2) Extension / Abridgement by Court Order
|
Before or after the end of the period sought to be extended, a party can bring a motion to extend or abridge the specific time period
|
R.8(1)&(2)
|
d. Appeals To The Federal Court Of Appeal
A decision of the Federal Court can be appealed to the Federal Court of Appeal without leave as a matter of right (Courts of Justice Act s.27(1). For an interlocutory judgment, a Notice of Appeal must be filed within 10 days of the judgment (CJA s.27(2)(a)). For a final judgment, the applicant has 30 days following the decision to file a Notice of Appeal (CJA s.27(2)(b)).
e. Appeals To The Supreme Court Of Canada
Appeals from the Federal Court of Appeal can be heard by the Supreme Court of Canada, but a party must successfully get a motion for leave to appeal (R.357(1)). A motion to appeal will be granted only in certain circumstances in accordance with the Supreme Court of Canada's own set of rules (i.e. s.37.1 of the Supreme Court Act).
3. Expeditious Initiatives
ACCESSIBILITY
|
UNIQUE PROCEDURAL ASPECTS
|
Description
|
Rule
|
Description
|
Rule
|
|
1. STATUS REVIEW
|
The court will call a status review IF:
|
|
Upon status review, a court can:
|
|
Applicable to Applications and Appeals:
|
|
1) Dismiss the proceeding (unless plaintiff, applicant, or appellant can show cause as to why this should not happen)
|
R.382(2)(a)
|
180 days after the issuance of the Notice of Application (or Appeal) no requisition for a hearing date has been filed
|
R. 380(1)(b)
|
2) Enter default judgment (unless the defendant can show cause as to why this should not happen)
|
R.382(2)(b)
|
Applicable to Actions Only:
|
|
3) Order that the proceeding continue as a specially managed proceeding
|
R.382(2)(c)
|
1) 180 days after issuance of the Statement of Claim pleadings are not yet closed
2) 360 days after issuance of the Statement of Claim and no party has filed a requisition for pre-trial
|
R. 380(1)(a)
|
|
|
Exclusion:
|
|
|
|
Status review does NOT apply to a specially managed proceeding
|
R.380(3)
|
|
|
2. SPECIALLY MANAGED PROCEEDINGS
|
A chief justice of the Federal Court (or Federal Court of Appeal) MAY assign 1 or more judges to act as a case management judge (a prothonotary may act in certain circumstances at the FC level)
|
R.383, R.383.1
|
A Case Management Judge deals with all matters that arise prior to trial, and may:
1) Give any directions that are necessary for the just, most expeditious and least expensive determination of the proceeding on its merits
2) Fix the period for completion of subsequent proceeding steps
3) Fix and conduct a dispute resolution conference or pre-trial conference
4) Hear and determine all motions prior to the assignment of a hearing date
5) Order a status review at any time
6) Cease special management of the case at any time
|
R.385(1)(a)
R.385(1)(b)
R.385(1)(c)
R.385(1)(d)
R.385(2)
R.385(3)
|
A party to a proceeding MAY bring a motion at any time to have the proceeding managed as a specially managed proceeding
|
R.384
|
Huang v. Canada (Min. of Citizenship & Immigration) 2003 FCT 196 (Proth.) – Special management is neither routine nor automatically granted on request. There must be a substantial reason to remove a proceeding from the timetables set out in the rules.
|
|
4093879 Can. Ltd. v. Mal-Mart Canada Corp. 2003 FC 1000 – Relevant considerations justifying an order for special management of a case include the parties' consent to such an order, the expectation that issues concerning the scope of discovery will arise, and the need for a judge familiar with the case so that speedy procedural determinations can be made.
|
|
|
3. DISPUTE RESOLUTION SERVICES
|
The court MAY order that a proceeding (or any issue in a proceeding) be referred to a dispute resolution conference
|
R.386(1)
|
The dispute resolution conference is conducted by a case management judge or prothonotary, who may conduct:
|
|
1) A mediation
|
R.387(a)
|
2) An early neutral evaluation of a proceeding (evaluate strengths and weaknesses of the parties and render a non-binding opinion as to the probably outcome)
|
R.387(b)
|
3) A mini-trial (presiding over presentation by counsel and then rendering a non-binding opinion as to the probably outcome
|
R.387(c)
|
4. Existing Litigation Procedures within the Canadian Provincial Court System
The Canadian provincial courts have recently implemented civil procedures and programs in an attempt to streamline general litigation. In effect, these general initiatives have changed the litigation procedures related to trade-mark disputes. These provincial procedures are relevant to trade-marks in that a party may choose to commence an action within a provincial court. Although most actions for infringement of a registered trade-mark are brought in the Federal Court of Canada, infringement actions can also be brought within provincial Superior Courts (Trade-marks Act, s.53.2, Commentary 5.2.2). A plaintiff may elect to bring an infringement action to provincial Superior Court (as opposed to Federal Court) if they are seeking additional relief that falls under provincial jurisdiction (branch of contract, tort claims, etc.). In addition, a claim for "passing off" under the common law can be brought in a provincial court. (Note that the Federal Trade-marks Act contains a statutory passing of provision under which the Canadian Federal Court can entertain a passing off action.) It is important to note that a provincial court judgment is only enforceable within the province in which the action is brought; by contrast, a judgment rendered by the Federal Court has national juridical effect. The aim of a number of provincial initiatives has been to make litigation cheaper, quicker, and generally more effective and accessible to the public. The following explores some of the relevant standard Ontario litigation rules and also the streamlining initiatives that have been implemented in Ontario, British Columbia, Alberta, and Nova Scotia.
a. Ontario
The civil procedures followed by the Ontario Courts are generally governed by the Rules of Civil Procedure (R.R.O. 1990, Reg. 194). Trade-mark actions are heard by the Superior Court of Justice, which is governed by these rules. Unless otherwise indicated, all rules referred to below are from the Ontario Rules of Civil Procedure.
(1) Ontario's Relevant Standard Civil Procedures
Table 1 provides a summary of the rules governing the initial procedural stages for an action brought before the Ontario Superior Court of Justice.
Table 1 – Initial Procedures for a Provincial Action
Category
|
Description
|
Timing
|
Rule(s)
|
Bringing an Action Before the Court
|
Infringement actions having only provincial juridical effect or common law "passing-off" actions.
|
--
|
Trade-Marks Act s.53.2, Commentary 5.2.2
|
Timing for Service of Pleadings
|
1) Service of Statement of Claim
|
6 months after issuance
|
R.14.08
|
|
2) Service of Statement of Defense
|
a) 20 days after service of Statement of Claim (if defendant served in Ontario)
b) 40 days (if defendant served elsewhere in Canada or U.S.)
c) 60 days (if defendant served outside Canada & U.S.)
|
R.18.01
|
|
3) Plaintiff's Reply to Statement of Defense (if appropriate)
|
10 days after service of Statement of Defense (or 20 days if also served with a counterclaim)
|
R.25.04(3)
|
As the standard provincial court action progresses beyond the initial stages, there are many rules that inherently have an effect on the duration of a standard provincial action. These procedures, which speed-up, slow down, and/or circumvent the full litigation of an action, are provided within Table 2.
Table 2 – Standard Rules that Affect the Duration of Litigation for a Provincial Action
Category
|
Description
|
Rule(s)
|
1) Extension / Abridgment
|
The court may, by order, extend or abridge any time period, on such terms as are just.
|
R.3.02(1)
|
2) Status Rule (Action not on Trial List within 2 Years)
|
Where an action has not been placed on a trial list or terminated by any means within 2 years after the filing of the Statement of Defense, the registrar shall serve notice on the parties that the action will be dismissed for delay unless it is set down for trial or terminated within 90 days after service of the notice. Any party may request a status hearing (before a judge) wherein the Plaintiff will usually try and show cause as to why the action should not be dismissed for delay.
|
R.48.14(1), R.48.14(5), R.48.14(8)
|
3) Offers to Settle (Cost Consequences that Encourage Settlement)
|
1) If the Plaintiff makes an offer to settle and it is not accepted by the Defendant, and the Plaintiff receives judgment that is as or more favorable than their offer, then the Plaintiff is entitled to:
i) Partial indemnity costs from the date of commencement to the date of the offer (per Tariff A), and
ii) Substantial indemnity costs from the date the offer was served onwards
|
R.49.10(1)
|
|
2) If the defendant makes an offer that is not accepted by the Plaintiff, and then the Plaintiff receives judgment that is as or less favorable than the Defendant's offer, then:
i) The Plaintiff is entitled to partial indemnity costs from the date of the commencement until the date of the offer
ii) The Defendant is entitled to partial indemnity costs from the date the offer was served until the end of the proceeding
|
R.49.10(2)
|
(2) Ontario's Expeditious Initiatives
Table 3 – Expeditious Initiatives Implemented within Ontario
ACCESSIBILITY
|
UNIQUE PROCEDURAL ASPECTS
|
Description
|
Rule
|
Description
|
Rule
|
|
1. PRE-TRIAL CONFERENCE
|
A judge MAY, at the request of a party or upon his/her own initiative, direct the solicitors (with or without the parties) to appear before a judge or officer for a pre-trial conference.
|
R.50.01
|
Issues to be discussed at the pre-trial conference include: settlement possibilities, simplification of the issues, the possibility of obtaining admissions, and the estimated duration of the trial.
|
R.50.01
|
|
2. FULL CIVIL CASE MANAGEMENT (R.77) – STANDARD OR FAST TRACK
|
Designed to ultimately be a province-wide rule. Currently in effect in only some districts. (Excludes some actions, such as simplified actions of low monetary claims)
|
|
1) At commencement of proceeding, plaintiff chooses the track (standard or fast track). The defendant can change the track, but there is a time limit for doing so.
|
R.77.06(5), R.77.07
|
|
R.77.01(1)
|
2) Where no defense is filed, and the proceeding has not been disposed of by a final order within 180 days of the originating process, the Registrar shall dismiss the proceeding as abandoned.
|
R.77.08
|
|
R.77.01(2)
|
3) Once the defense is filed, the case is assigned to a case management team for management.
|
R.77.09(3)
|
|
|
4) Settlement conference is held, wherein the possibility of settlement is evaluated by the parties. Fast track = 150 days after 1st defense has been filed, standard track = 240 days after 2nd defense is filed. All discovery must be completed by the settlement conference date. A trial or hearing date is assigned at the settlement conference.
|
R.77.14, R.77.14(1), R.77.14(2), R.77.14(7)
|
|
|
5) Trial management conference may be held at the request of a party or on the initiative of the trial judge, case management judge, or master, at any time following the setting of a trial date. Discussions may include, for example: expeditious means for the presentation of evidence and directions that will facilitate the orderly and expeditious conduct of trial.
|
R.77.15(1) R.77.15(3)
|
|
|
6) A case management judge (or master) may convene a case conference at any time on his/her own initiative or upon a party's request. Discussions may include, for example: exploring methods to resolve contested issues, creating a timeline for the proceeding, and the potential usefulness of referring an issue to ADR.
|
R.77.13(1), (3), & (5)
|
|
|
7) The plaintiff has a duty to file a timetable (or request a case conference to establish a timetable) within 180 days after the proceeding is commenced. Such a timetable will set deadlines by which specific steps in the proceeding must occur.
|
R. 77.10(2)
|
|
|
8) Provides for an informal motion procedure (before a case management judge or master).
|
R.77.12
|
|
3. MANDATORY MEDIATION (R. 24.1)
|
Applies only to certain actions
|
|
1) A mediation session shall take place within 90 days after the first defense has been filed, unless the court orders otherwise. However, for standard track case management, the mediation session may be postponed up to 60 days with the consent of the parties.
|
R.24.1.09 (1)&(3)
|
|
|
|
|
2) The parties may select the mediator from a list of mediators compiled by the local mediation committee, or they may select a mediator that is not on the list. If a mediator is not selected in not done in time, a mediator will be assigned.
|
R.24.1.08 (1)
|
|
|
3) The parties and their lawyers (if represented) are required to attend the mediation session unless the court orders otherwise.
|
R.24.1.11 (1)
|
|
|
4) If an agreement settles the action, the defendant shall file a notice to that effect.
|
R.24.1.15 (3)
|
|
|
5) With consent of the parties, the court may make an order to have additional mediation.
|
R.24.1.16 (1)
|
|
|
|
|
|
4. TORONTO CIVIL CASE MANAGEMENT PILOT PROJECT (R.78)
|
General Applicability:
|
|
General Unique Procedural Aspects:
|
|
Applies to most actions commenced in Toronto after December 31, 2004.
Applicability of Full Case Management (R.77)
1) Civil cases in Toronto are not automatically assigned to full (i.e. R.77) case management.
2) If all of the parties consent in writing, a judge or case management master may, on a party's motion, assign one or more actions to case management in accordance with R.77
3) On a party's motion, or on his/her own initiative, a judge or case management master may assign the action to R.77 case management if a party has taken steps that amount to chronic and substantial obstruction of the action.
4) At a case conference, a master may order that the action proceed under full (R.77) case management.
Applicability of Partial Case Management
1) If certain criteria are met, the parties to an action may make a joint request to the administrative master asking that the case be case managed (typically in some less comprehensive form than under R.77). One of the following criteria must be met: there are complex factual or legal issues, it is a matter of public interest, there are numerous parties or related proceedings, or there is chronic and substantial obstruction to the timely disposition of the action.
2) If it appears to the administrative master that a form of case management is warranted, a master will be assigned to the case.
3) Where case management is sought otherwise than at the joint request of all parties, it shall be by way of motion.
|
R.78.01(1)
Practice
Direction (Dec. 31/04)
R.78.12(1)
R.78.12(3)
R.78.09(e) R.78.12(1)
Practice Direction (Dec. 31/04), s.16
Practice Direction (Dec. 31/04), s.17
Practice Direction (Dec. 31/04), s.17
|
1) The strict timelines for full mandatory mediation (R.24.1) do not apply. For a simplified procedure (R.76) mediation must be conducted within 150 days after the close of pleadings. For all other actions, the parties are free to determine the timing of the mediation. The only constraints are that the parties must conduct a mediation session at the earliest stage at which it is likely to be effective, and within 90 days after the action is set down for trial.
2) Provides for flexible, less formal case management in which the parties have a greater responsibility for moving the action along (as compared to fully case managed R.77 proceedings). Court intervention is only provided when needed.
3) When a case conference is held, the powers of a master assigned to a proceeding include:
(a) ordering that the proceeding be fully case managed (under R.77)
(b) establishing or reviewing a timetable and giving directions so that all parties are ready for trial
(c) requiring written direction compliance reports, and
(d) convening a further case conference.
4) Parties must deal with the non-compliance of another party by taking the initiative to bring the matter back before the court. In such a case, the court will usually transfer the action to full (R.77) case management.
5) If all parties agree in writing, any direction or timetable set by the master at a case conference (other than a deadline for setting down to trial) may be varied.
6) After an action is set down for trial, a pre-trial conference (R.50) must take place.
7) Once trial dates are set, there will be no adjournments of the trial except in the case of an emergency.
|
R.24.1.09.1(2)(b), R.24.1.09.1(2)(c)
R.78.02
R.78.09
|
|
|
| |
Practice Direction (Dec. 31/ 04), s.23
|
R.78.11(1), R.78.11(2)
| |
R.78.10(1)
| |
Practice Direction (Dec. 31/04)
|
|
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