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Intellectual property litigation in the Federal Court

Author(s): J. Bradley White, Lillian Wallace, John Cotter

Sep 10, 2020

For further information on the changes below or other intellectual property matters, please contact one of the authors above or any member of our Intellectual Property Group.

In response to the COVID-19 pandemic, the Federal Court and the Federal Court of Appeal adjusted their operations, temporarily suspending certain timelines and hearings for certain periods, which each Court referred to as the Suspension Period. These adjustments were amended in the course of the COVID-19 pandemic and as COVID-19-related restrictions eased, so too were the Suspension Periods. Although the expiration of the Suspension Period in the Federal Court varied depending on the region, as of June 30, 2020, they had expired throughout Canada. In the Federal Court of Appeal, the Suspension Period is gradually being phased out.    

The Federal Court

The Suspension Period applied to time limits under orders and directions issued before March 16, 2020, as well as to time limits under the Federal Courts Rules and certain other enactments.

The expiry of the Suspension Period in the Federal Court varied by region. In Ontario, Québec and the three territories, the Suspension Period ended on June 29, 2020. In the rest of Canada, it ended on June 15, 2020. In addition, a further 14 days were provided for filing documents and taking procedural steps after the end of the Suspension Period. The net result was that at the end of that 14-day period parties were in the same position as they were immediately prior to the Suspension Period.    

Across Canada, all applications for judicial review and general sittings will continue to be heard by videoconference (or exceptionally by teleconference), though requests may be made to have such matters heard in person. In determining such requests, the Court will consider recommendations by public health authorities, the availability of court staff and officers, and any delays that occur in reconfiguring the Court’s facilities to ensure they are safe. 

The mode of hearing for other proceedings, including motions, mediations and actions, will be determined after parties have the opportunity to make representations.

Notably, even though the Suspension Period has expired, the Court is continuing some practices put into effect during that period, including those relating to electronic filing and service of documents.

More information is available on the Federal Court’s website: https://www.fct-cf.gc.ca/en/home

The Federal Court of Appeal

The Federal Court of Appeal also implemented a Suspension Period effective March 16, 2020, which it began phasing out on a gradual basis in late June 2020. As part of the phase-out, the default position is that the Suspension Period is extended indefinitely for all files, with the exception of files where the Suspension Period has been lifted (Selected Files). Since June 22, 2020, every Monday (or Tuesday if Monday is a holiday) the Court issues an updated list of Selected Files. 

The basis for being listed as a Selected File is primarily the age of the file, but a party may bring a motion to have a file selected or deselected.  In addition to age, the Court will consider the health and regulatory situation in the region, availability and capacity, the court stage and the urgency of the file, as well as any other consideration under Rule 3 of the Federal Courts Rules.  

The Suspension Period for a Selected File will end on the first Monday after it first appeared on the list of Selected Files. The computation of time under the Federal Courts Rules or under any direction or order will run from the end of the Suspension Period, but the Monday on which the Suspension Period ends will not be counted in the computation of time.

Until public health advice allows in-person hearings, the Federal Court of Appeal will continue to hear matters remotely or in writing. Parties may communicate their preference to the Judicial Administrator.

More information is available on the Federal Court of Appeal’s website: https://www.fca-caf.gc.ca/fca-caf_eng.html

An Act respecting further COVID-19 measures

On July 27, 2020, An Act respecting further COVID-19 measures received Royal Assent. This Act provides relief in respect of certain time limits under federal legislation. In a decision[1] released on September 3, 2020, the Federal Court of Appeal held that this Act did not extend time limits under the Federal Courts Rules or under judgments, orders, directions and practice directions of the Court (and presumably the Federal Court).

Further information

Our Osler IP team remains fully operational and committed to providing our clients with continued exceptional service during this difficult time, including in relation to intellectual property litigation and obtaining, maintaining and protecting IP rights. Please feel free to reach out to any member of our IP team with any questions or for more information.

 

[1] Reference re Section 6 of Time Limits and Other Periods Act (COVID-19), 2020 FCA 137, at para 11.

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