The Federal Court recently issued a practice notice entitled Notice to the Parties and to the Profession – Case Management: Increased Proportionality in Complex Litigation before the Federal Court. The notice affects all complex litigation before the Court, including intellectual property matters. The notice is designed to achieve increased proportionality in Federal Court proceedings, and introduce efficiencies which should save litigants both time and money. The changes should also make it easier for an action to reach trial within two (2) years from the filing of the Statement of Claim, an objective communicated in a previous notice from the Court.
The recent notice is summarized below. The full Notice is accessible on the Court’s website.
- Earlier trial judge management: Trial judges will become involved earlier in the case management process, to ensure that both the parties and the Court are ready to proceed to trial on the scheduled trial date.
- Short notice wait list for earlier trial dates: Many actions before the Federal Court settle before trial, freeing up their trial dates. To utilize those previously allocated dates, the Court will maintain a separate list of actions scheduled for trial and for which a short notice trial has been requested in writing. Earlier trial dates will be offered to parties on this list, subject to counsel’s availability and the projected length of the trial.
- No new demonstrative evidence at trial: Parties must exchange any demonstrative evidence proposed for use at trial with opposing parties at least 60 days before trial. Any objections to such evidence must be raised at least 45 days before trial.
- Limits on documentary discovery: The parties are required ensure that any steps taken regarding documentary discovery are proportional. Further, the parties should be prepared to identify and discuss which representatives of the parties will be examined, their knowledge and areas of expertise, the scope of inquiry, and the documents anticipated to be reviewed in discovery.
- Limits on oral discovery: In order to promote proportionality, the following limits will be placed on oral discovery based on the anticipated duration of the trial, unless the parties otherwise agree or the Court orders otherwise due to special circumstances. Any follow-up discovery will be limited to 1 day/party.
- 1 week trial or less: 1 day of oral discovery/party.
- 1-2 week trial: 2 days/party.
- 3-4 week trial: 3 days/party.
- 5 week or greater trial: 4 days/party.
- Limits on refusal motions: Under the notice, refusal motions are not permitted until discoveries are complete and are limited to 1 hour per day of discovery of each party’s representative. Potentially significant cost awards may be imposed against unsuccessful or unreasonable parties. Taking questions under advisement will be prohibited. Questions posed during discovery should be answered unless clearly improper or prejudicial, or would require the disclosure of privileged communications.
- Limits on appeals of interlocutory orders of prothonotaries: The Court is considering recommending amendments that would limit appeals of interlocutory orders, in order to reduce the costs and delays associated with such appeals. Such limitations are not yet in place.
- Stricter enforcement on the limit on number of experts: Parties will be limited to 5 expert witnesses, absent extraordinary circumstances.
- Science and technology primers prior to trial: Parties may be required to jointly or separately provide science and technology primers to the Court before trial.
- Early consideration of mediation in all actions: The Court will proactively raise alternate dispute resolution (ADR) options throughout the proceeding, including at times where ADR would lead to the most effective disposition of the action such as the close of pleadings or immediately following documentary or oral discovery.
The notice is a positive development for those litigating intellectual property disputes before Canada’s Federal Court. The efficiencies implemented by the notice should streamline intellectual property litigation, resulting in time and cost savings for litigants. In particular, the changes to oral and documentary discovery as well as refusal motions should significantly streamline the litigation process and circumvent delays relating to the discovery process that can significantly slow down the litigation process and add to the parties’ legal fees.