Federal Court Practice under COVID-19
By updated Practice Direction and Order dated April 4, 2020, the Federal Court has extended its Suspension Period to May 15, 2020, and detailed its strategy for keeping the Court running during the COVID-19 crisis.
During the Suspension Period (which began March 16, 2020 and currently runs until May 15, 2020) all timelines under the Rules, Directions and Orders made prior to March 16, 2020 are suspended. The Court’s intention is that matters will resume on May 15, 2020 from the same place they were as of March 16, 2020. For example, if a party had 3 days to take a step on March 16, 2020, they would have those same 3 days to complete that step from May 15, 2020. The Court has also indicated that additional extensions may be available through an informal request. Deadlines in Orders or Directions issued after March 16, 2020 are not extended because they were made with the current situation in mind.
With limited exceptions, all hearings which were scheduled during the Suspension Period have been adjourned indefinitely and all General Sittings of the Court are cancelled. If the Suspension Period is not extended beyond May 15, 2020, where scheduled hearings have been adjourned due to the Suspension Period, the parties should provide updated availability to the Court no earlier than May 1, 2020 and no later than May 29, 2020. All rescheduled hearings, and especially PMNOC trials, will be given priority in rescheduling.
The Court will continue hearings matters during the Suspension Period under the following circumstances:
- Urgent or exceptional matters (including those involving hardship or substantial financial consequences that would likely result from delay) will be heard by telephone or video conference.
- Case management hearings will continue for (i) urgent matters, (ii) matters with a fixed trial or hearing date, (iii) matters where there is a statutory deadline, and (iv) matters where the parties agree to proceed on consent, with the following guidelines for parties:
- All documents will need to be filed electronically and made available to all parties in electronic format.
- Subject to the exercise of discretion by the case management judges, all matters have to be dealt with in writing or in a short teleconference (less than 90 min) or video conference (less than 2 hours).
- Upon request by the parties that the matter be heard, on consent, where a joint schedule of availability is provided, all documents are filed electronically and the hearing is for less than two hours, subject to the Court’s ability to accommodate such a request.
- Matters in writing will be adjudicated where all parties consent and all documents have or will be filed electronically.
Deadlines for commencing actions, appeals or applications under most statutes are not extended. Since Parliament, and not the Court, has authority over these statutory deadlines, they will continue to apply and can only be extended or varied as permitted by the legislation or authorized by the government. Relief is being sought from the Federal government relating to statutory deadlines, in particular in relation to deadlines in PMNOC matters.
The Court’s ability and capacity to hold remote hearings is likely to increase as time passes and the Court’s technical issues are worked out. The Court is training judges and registry officers on Zoom, which practitioners should become familiar with.
On a recent call with the Federal Court IP User’s Committee, the Court made it clear that matters will not, at least for now, move forward by teleconference/videoconference without consent of all parties, as the Court recognises that different parties and counsel will have different capabilities to work remotely. Consent of the parties is key, absent urgency or exceptional circumstances, and counsel should work with each other to determine how their matters can continue moving forward.
During the recent IP User’s Committee teleconference, the Court did ask counsel to be patient with the Court as it works out its technical issues, and counsel should be taking the following steps to assist the Court:
- Ensure that the documents are sent to the right place and in the right format for your matter.
- Use common sense in filing motion materials (for example, file excerpt of pleadings, rather than the whole pleading).
- More than ever, talk to other side before hearings to try and resolve things.
The Court is exploring the possibility of using videoconferencing for trials if necessary, but no details have been worked out in that regard. With seven IP trials scheduled between now and the end of June, the Court believes that it will be able to reschedule all trials for the fall without adjourning other trials.
The Court has also recognized that social distancing requirements will likely hamper service of originating documents, and parties may apply informally by way of letter for substituted service or to validate services.
And finally, counsel need not robe when appearing by way of videoconference, though the Court has indicated that proper business attire is required, and we must therefore all be prepared to change out of our PJ’s (at least on top…).