snIP/ITs Insights on Canadian Technology and Intellectual Property Law

Federal Court Issues Trial Management Guidelines to Ensure Efficient, Expedient and Proportional Use of Court Time

Posted in Litigation
Bart NowakSteven Tanner

The underlying purpose of the Federal Courts Rules is to ensure the just, most expeditious and least expensive determination of every proceeding. The Federal Court has released notices to the profession help achieve this underlying purpose.

In a previous Notice to the Profession the Federal Court sought to decrease redundancy and inefficiencies by encouraging (among other things) earlier trial management, earlier consideration of mediation, and the stricter enforcement of the limit on the number of experts used by parties. Discoveries were streamlined, refusals motions were limited and appeals of interlocutory orders were made more challenging.

Last week the Federal Court issued a further Notice to the Profession outlining guidelines regarding case management for actions scheduled for five days or more. The overarching purpose of the twenty one guidelines is to allow the parties and the Court to better appreciate the case that will be presented at trial with a view to streamlining the trial, maximizing efficiencies and minimizing Court resources. Three particularly noteworthy guidelines are:

  1. No motions may be brought within 60 days of the trial date without leave of the case management judge or trial judge.
  2. The parties are encouraged to prepare a joint statement of issues to be delivered two weeks prior to trial.
  3. In actions involving scientific issues, including patent actions, the parties are encouraged to prepare and deliver a joint primer on the pertinent technology and scientific principles on a date to be determined by the trial judge in advance of the trial.

The notice also emphasizes the need for more efficient use of experts and expert evidence at trial. In particular:

  1. Expert reports to be relied upon at trial shall be submitted to the Court at least two weeks prior to trial.
  2. Expert reports relied upon at trial will be taken as read in; examination in chief of experts should be concise and limited to key issues.
  3. The examination of an expert witness may include a slide presentation.
  4. By submitting an expert report to the Court, the party is undertaking to the Court to call such expert as a witness at trial.

To a large extent, the new notice to the profession provides a formalized structure to existing practice.

One question left outstanding is the potential consequences to the parties if an “undertaking” to call an expert at trial is not complied with. The notice states that if the undertaking cannot be given that the expert’s report shall not be delivered. Because a case could change drastically based on oral testimony cautious parties may choose to withhold serving reports until the last possible moment in an attempt to prevent the imposition of sanctions.