Summary

The Federal Court issued a Notice to the Parties and the Profession dated June 24, 2015 (the “Notice”) containing its initial recommendations for achieving increased proportionality in proceedings before the Court. Designed to “modernize and improve practice and procedure”, the recommendations include: earlier involvement of trial judges and expanding the use of case management; short notice wait lists for trial dates; limits on the use of demonstrative evidence; limiting discovery and refusals motions; strict enforcement of rule limits on the number of expert witnesses; the use of science and technology primers prior to trial; and earlier exploration of settlement and alternative dispute resolution options.

Background

The purpose of the Federal Courts Rules (the “Rules”) is to achieve the just, expeditious and least expensive determination of every proceeding. In furtherance of this objective, the Chief Justice tasked the Federal Court Case Management Working Group (the “Working Group”), composed of judges and prothonotaries, to consult with the bar and make recommendations for improving the case management of actions. The Notice sets out the Working Group’s initial recommendations.

Recommendations

The Working Group’s initial recommendations are designed to modernize and improve practice and procedure in order to achieve increased proportionality in proceedings before the Court. The initial recommendations include:

  1. Earlier trial judge management. To achieve more effective scheduling of trials, the trial judge working in conjunction with the case management judge will implement procedures, such as discovery plans, timetables and joint case management/trial management conferences.
  2. Short notice wait list for earlier trial dates. To provide earlier trial dates where requested when other actions settle.
  3. No new demonstrative evidence at trial. Parties will be required to exchange any demonstrative evidence proposed for use at trial to opposing parties at least 60 days prior to trial with any objections to such evidence raised at least 45 days before trial.
  4. Limits on documentary evidence. Timely productions, confirmation of the scheduling of examinations for discovery and the exchange of discovery plans shall be topics for early discussion with the case management judge. Parties should be prepared to identify and discuss at an early stage the representative(s) to be examined, their knowledge and area of expertise, the scope of inquiry and the documents anticipated to be reviewed.
  5. Limits on oral discovery. Specified limits, based on the estimated duration of the trial, will be placed on oral discovery (e.g., 1 day of oral discovery per party for a trial of 1 week or less). These guidelines will be enforced subject to agreement by the parties or the Courts’ discretion.
  6. Limits on refusals motions. These limits will include: no refusals motions until discoveries are complete; limiting such motions to one hour per day of discovery of each party’s representative; no questions to be taken under advisement; requiring questions to be answered unless clearly improper or prejudicial; and potentially significant cost consequences imposed against unsuccessful or unreasonable parties.
  7. Limits on appeals of interlocutory orders of prothonotaries. In order to reduce costs and delay, consideration is being given to recommending an amendment to the Rules to limit appeals of interlocutory orders.
  8. Stricter enforcement of the limit on number of experts. Absent extraordinary reasons, the Court will strictly enforce the limit on the number of expert witnesses allowed to testify under Rule 52.4 (limited to five (5) experts called by each party in a proceeding).
  9. Science and technology primers prior to trial. Parties may be required to jointly or separately provide science and technology primers to the Court prior to trial to enable the Court to better understand complex science and technology issues in complex litigation at an early stage.
  10. Early consideration of mediation in all actions. Parties are encouraged to seek, and the Court will proactively raise, alternative dispute resolution options, including mediation.

Link to the Notice

Case Management: Increased Proportionality in Complex Litigation before the Federal Court