The Backstory

The Courts, like their litigants, have not been immune to the effects of the Covid-19 pandemic. In mid-March, as the effects of the pandemic resulted in lockdowns across Canada, the courts began working with parties to adjourn in-person hearings, launch virtual hearings where applicable, set up Judges and Registry personnel to work from home, and ensure the continued operation of the justice system, albeit in a form not previously seen.

As part of those efforts, the Federal Court and Federal Court of Appeal released several timely Notices to the Profession designed to provide guidance to counsel and their clients regarding many matters including video- and tele-hearings, the suspension of timelines under the Federal Courts Rules, the suspension of certain issued Orders and Directions, modified case management, and accommodations for proving service and swearing affidavits.

The Federal Court of Appeal as part of its efforts released nine Notices to the Profession, and as of June 11 announced it was starting its return to eventual normal operations, including by hearing increasing numbers of proceedings via video- or tele-conference, returning to the ordinary timelines under the Rules, and having registry personnel return to work onsite.

The Federal Government Acts

On July 27, 2020, the Canadian Federal government’s Time Limits and Other Periods Act (COVID-19) legislation came into force. Section 6 of the Act suspended (a) any limitation or prescription period for commencing a proceeding before a court; (b) any time limit in relation to something that is to be done in a proceeding before a court; and (c) any time limit within which an application for leave to commence a proceeding or to do something in relation to a proceeding is to be made to a court, if the time limits are established by or under “an Act of Parliament”. The suspension period was retroactive and to apply to such deadlines that fell between March 13 to September 13, 2020. The suspension was welcome to many litigants who had experienced service issues as a result of the pandemic and were concerned about timelines under many of the intellectual property-related statutes.

Just as things were getting back to “normal”…

On September 1, 2020, the Court announced by Practice Direction that it was resuming hearings where all counsel could appear in-person, hearings where all counsel could appear remotely, and hearings where certain counsel could appear in person and some appeared remotely (known as “hybrid hearings”).

On that same day, the Attorney General of Canada wrote to the Federal Court of Appeal taking the position that section 6 of the Act suspended retroactively all “time limits… established by or under an Act of Parliament” and that “orders and directives issued” by the Court between March 13 and September 13, 2020 concerning time limits or setting deadlines for procedural steps, were ousted by section 6. This would render the Court’s Practice Directions and Notices to the Profession, as well as past decisions made pursuant to those Directions and Notices, no longer valid, all with retroactive effect.

Federal Court of Appeal directs Time Limits in its Decisions and Rules be maintained

The Attorney General’s position would also affect ongoing cases in which he, Her Majesty the Queen in Right of Canada, and the Department of Justice, are involved – and the Department of Justice is involved in at least two-thirds of the proceedings before the Court. Concerned about the uncertainty and confusion created by this position, the Chief Justice of the Federal Court of Appeal issued a direction under Rule 54 of the Rules and provided supporting reasons.

The Chief Justice concluded that it could not have been the intention of Parliament to interfere with the Rules, nor to invalidate or alter the time limits set in judgments, orders, directions, Practice Directions and Registry actions. To have intended such consequences, the Act would have to contain the clearest of legislative language, but did not. The Rules are not made “under an act of parliament”, and allowing such interference by Parliament would invade a core judicial function, especially intolerable given the relationship of the Attorney General to many proceedings before the Court. He also observed that Court orders or directions, when made, are law until set aside, a rule that is absolute unless specifically ousted, amended or invalidated – which section 6 of the Act does not do.

Lastly, the Chief Justice noted that the Court has recognized and accommodated parties that as a result of the pandemic needed more time to complete certain steps, or required adjournments of matters or other accommodations, and that it will continue to do so where a party has unavoidable, practical difficulties and doing so is appropriate.

The Takeaway

The Court ultimately directed that the “Attorney General’s position concerning the interpretation and effect of section 6, in so far as it extends to the time limits under the Rules and orders made thereunder, is incorrect in law and should not be followed.” Instead, the Rules, Practice Directions, judgments, orders and directions of the Court remain in full force and effect. Accordingly, while the Act may be relied upon by parties to adjust limitation periods and time limits to apply for leave to commence a proceeding, it may not be used to supplant the time limits of the Federal Court of Appeal’s existing orders, directions, judgments, and Rules. It remains to be seen whether the Attorney General will challenge the Court’s direction – and if so, how and what the outcome will be. But for now, it is business as usual as all time limits set by the Court’s decisions, Practice Directions and Rules remain in effect.