The Federal Court has a primary role in hearing intellectual property proceedings in Canada (See Where Should You Launch Your Intellectual Property Case?). Changes to the composition of the Federal Court, including the number of judges and prothonotaries, have a significant effect on the enforcement of intellectual property in Canada. Several changes are being made to the role of the prothonotaries as well new appointments for judges in the Federal Court.
These changes affect the Court’s ability to manage its workload. The Federal Court has a Practice Notice indicating that where possible, the Court will endeavour to have the trial in an action within two years of its commencement.
Canada’s Federal Court is one of the few jurisdictions that have prothonotaries, a role generally similar to that of Masters in the provincial courts. The Federal Court currently has six prothonotaries, who provide most of the case management and decide many procedural motions. Prothonotaries have extensive jurisdiction to determine many aspects of proceedings, including the ability to make final determinations in some circumstances. Case management is commonly requested and granted in intellectual property proceedings (approximately 40% of all intellectual properties proceedings in the Federal Court for which a Statement of Claim is filed entered case management).
The Federal Court’s prothonotaries had a long running dispute with the government over their compensation. There were two independent inquiries and litigation up to the Federal Court of Appeal (2010 FCA 195). Earlier this year, the government accepted many of the latest recommendations from the independent advisor, including a substantial compensation increase and a promise to establish their position under the Judges Act.
In the fall of 2013, the Federal Court invited applications for potential further candidates although more recently the court indicated that there were no current plans to hire additional prothonotaries.
There are currently 33 judges in the Federal Court, which includes three judges appointed on June 13, 2014 but not including one judge who elected to be a supernumerary judge as of the end of June. Supernumerary judges are typically semi-retired judges who may have a lighter work load but still hear cases.
The Federal Courts Act currently provides for 36 judges in addition to the Chief Justice meaning there is the potential for several additional appointments. So far this year six new judges have been appointed, including Justice Locke, who practiced primarily in the area of intellectual property prior to being appointed.
Many of the recent appointments are to replace judges who have retired, resigned or have been elevated to the Federal Court of Appeal rather than expanding the number of available judges. For example, the most recent appointments were to replace Justice Snider, Justice O’Keefe and Justice Harrington, all of whom are retiring or resigning.
The Federal Court of Appeal has seen its share of changes as well. Although not facing the same backlog as the trial level court, the Federal Court of Appeal has found itself in the middle of controversy over the governments’ appointments to the Supreme Court of Canada. Chief Justice Blais is retiring this year and recently gave an interview to The Lawyers Weekly where he commented on the controversy but said, “A majority of our judges are young, dedicated, strong, and very well equipped to face the challenge of our court.”
The Court has reiterated its goal to schedule trials in all intellectual property proceedings within two years of commencement. The recent appointments of new judges will likely assist the Federal Court to meet this goal but new appointments will continue to be required to replace judges likely to retire in the next couple of years. Through the continued active case management by the six prothonotaries and the early scheduling of trial dates, the Court is continuing to meet this goal.