Litigation - 2016 Year In Review

In 2016, the Federal government proposed changes to the rules that govern litigation, the Federal Courts issued directions for the conduct of intellectual property litigation and Canadian courts issued decisions that affected expert evidence, standard of review, costs, varying judgments, and summary trials. Below are our summaries of key Canadian decisions and advisories that will affect intellectual property litigation.

Changes to the Rules of the Supreme Court of Canada

A number of proposed amendments to the Rules of the Supreme Court of Canada were introduced in November 2016, and came into effect on January 1, 2017. The amendments include a new process for providing notice of constitutional issues, changes to filing deadlines, and electronic filing of documents.

Proposed Amendments to Federal Courts Rules

Late last year, the Federal Courts Rules Committee recommended amendments to the Federal Courts Rules to account for technological advancements, codify existing informal practices, improve judicial efficiency, increase monetary jurisdictions in accordance with inflation, and ensure that confidentially filed material is, in fact, confidential. Below is a brief synopsis of the proposed changes that may affect intellectual property litigation.

Rule 50 relates to the monetary jurisdiction of Prothonotaries hearing actions. Currently Prothonotaries may hear trials for actions in which up to $50,000 is claimed. The amendment would increase this limit to $100,000 to account for inflation since the last amendment and anticipates future inflation of the next decade. Rule 292 relates to the monetary limit for simplified actions. The amendment would increase the limit to $100,000 for the same reasons discussed above. Rules 70 and 348 require parties to file their authorities, which is usually done in paper format and involves several volumes. The amendment would instead require parties to file only the excerpts from cited authorities where those authorities are available via a public electronic database, e.g. CanLII. Rule 348 relates to the timeline for filing books of authorities in appeals. Often the books are filed late, inhibiting the Court's ability to prepare for a hearing. The amendment would require parties to file their books at the time of requisitioning a hearing. Rule 348.1 would be a new rule that codifies an existing informal practice of parties providing the Court with compendia that include extracts from the appeal book, and book of statutes, regulations and authorities that will be referred to in oral submissions. Rule 151 relates to confidentiality orders. The amendment would improve the consistency between the French and English versions of the rule, and the structure of the rule, while maintaining the key parts of the test. Rule 152 would be a new rule that requires parties filing confidential material under seal with the Court to also file public versions of the same material with the confidential portions redacted, along with a statement from counsel that the only material redacted from the public version is actually confidential under a confidentiality order. This should improve judicial transparency and limit the confidential material filed. Rules 204, 204.1 and 208 relate to the timing for filing a defence. The amendment would permit a defendant to file a Notice of Intention to Respond, which would add an additional 10 days to the deadline to file a defence. This would not be an attornment to the jurisdiction of the Court...