Overview

The Federal Court of Canada has recently outlined several recommendations to further modernize and improve litigation practice and procedure before the Court. The June 24, 2015 recommendations include proposed changes to both trial and pre-trial practice, with the aim of ensuring expeditious and less expensive determinations of disputes. It is hoped that these initiatives will build on other advances the Court has made in the last several years, and further enhance litigants’ experience in intellectual property disputes in Canada.

Background

The Federal Court adjudicates the majority of IP cases in Canada. In the last several years, the Court has taken a number of steps to streamline and improve court processes to better achieve the underlying principle of the Federal Courts Rules – “a just, expeditious and least expensive determination of every proceeding”. In 2009, the court took a significant step in improving IP proceedings for litigants with its implementation of a Practice Notice entitled “Streamlining Complex Litigation”, which provided mechanisms to obtain earlier trial dates, and make better use of case management.

In a continuation of its improvement efforts, on June 24, 2015, the Federal Court published a new Practice Notice entitled “Case Management: Increased Proportionality in Complex Litigation Before the Federal Court,” setting out a series of recommendations for further modernizing and improving Federal Court practices and procedures.

The Practice Notice sets out ten “preliminary recommendations” which relate to both trial practice and pre-trial procedures. For certain of the recommendations, additional steps (such as legislative amendments) will be required for the recommendations to be implemented. However, it is expected that, where possible, the court will immediately begin taking guidance from the recommendations in presiding over case management matters.

In terms of trial practice, the recommended changes include:

  • Introduction of a “short notice wait list” to allow litigants who are ready for trial to take advantage of cancellations in other cases to obtain earlier trial dates
  • Stricter notice requirements for demonstrative aids proposed to be used at trial
  • Stricter enforcement of the five (5) expert per party limit
  • A possible requirement for parties to jointly or separately provide science and technology primers to the court in advance of trial in complex cases

The recommended changes to pre-trial practice include:

  • Strict limits on documentary and oral discovery to ensure discovery is commensurate with the nature and complexity of the dispute, including limits on the number of days of oral discovery permitted
  • Strict limits on discovery-related motions, and introduction of potentially significant cost sanctions for parties who take unsuccessful or unreasonable positions on such motions
  • Earlier involvement of trial judges in the case management process. According to the Practice Notice, time for earlier involvement in case management will be built into judges’ schedules.
  • Possible future limits on appeals of interlocutory orders of prothonotaries. At present, interlocutory orders of prothonotaries may be appealed as of right to a judge of the Federal Court, and a judge’s order may then be appealed as of right to the Federal Court of Appeal. The Practice Notice acknowledges that limiting any of these rights of appeal will require amendments to the Federal Courts Act and Federal Courts Rules.
  • Early consideration of mediation and other alternative dispute resolution mechanisms, which will be proactively raised by the court at strategic junctures in a proceeding

In recent years, the Federal Court has introduced significant changes to ensure that Canada is a highly attractive jurisdiction for intellectual property litigation. It is hoped that the most recent initiatives will further enhance the experience in intellectual property litigation for parties and counsel, particularly by allowing IP litigation to be conducted more quickly and less expensively.