Federal Courts Bench and Bar Committee Meeting Minutes: November 22, 2024

Meeting of Federal Court with CBA

Attendance:

for the Federal Court: Chief Justice Crampton, Justice Manson, Justice Norris, Justice Fothergill, Justice Favel, Justice Furlanetto, Associate Judge Moore

for the CBA/Department of Justice: John Myers for Jordana Sanft (Chair), Chelsea Nimmo, Colleen Bauman, Keltie Lambert, Nalini Reddy, Julie Terrien, Sarah Miller, Mark Tonkovich, Deborah Drukarsh, Catherine Lawrence

for CAS: Darlene Carreau, Chantal Proulx, Martin Béliveau, Justine Drouin, Caroline Perrier, Dominique Henrie

Regrets: Associate Chief Justice Gagné, Justice Strickland

1. Opening Remarks

Chief Justice (CJ) Crampton welcomed participants and noted the presence of new members for the Federal Court: Justice Furlanetto replacing Justice Manson and Associate Judge Moore replacing Justice Duchesne. John Myers will chair the meeting in replacement of Jordana Sanft and he introduced Nalini Reddy as the new representative for the immigration section and Mark Tonkovich for the tax section.

It was agreed to add a representative from the Class Actions section to this committee.

2. Adoption of Agenda & Minutes

The members adopted the agenda and minutes.

3. Follow-up items from last meeting
   1. Declarations re: use of artificial intelligence (AI)
      CJ Crampton acknowledged the complexity and evolving nature of AI emphasized the importance of respecting the spirit and underlying principles of the Court’s Notice to the Profession. He acknowledged that there may be some uncertainty, such as with respect to the use of AI for translation, and that guidance is being offered, though it's not as precise as desired. He invited suggestions for improving clarity and welcomed feedback. Nalini Reddy referred to the presentation at the CBA Immigration Conference and expressed confidence that most individuals at a recent conference who reported using AI in their legal practice were referring to non-litigation contexts. Specifically, within the immigration bar, AI is predominantly used to generate content such as submission letters for visa applications, rather than for court submissions. This reflects a broader trend in how AI is currently applied in legal work.
   2. Ongoing issues with the e-filing portal
      Martin Béliveau highlighted the high efficiency of the E-filing system, citing data to support this claim. Specifically, 99.7% of submissions are successfully processed on the first attempt. For example, in October, out of 15,385 submissions, only 47 encountered initial issues, and only 3 of those failed to go through on the second attempt. This high success rate is consistent across monthly reports.
      Martin Béliveau acknowledged that during an October immigration bench and bar meeting, Mr. Afzali raised concerns regarding specific filing difficulties, which were followed up. In some instances, technical issues stem from the sender’s side, such as timeouts caused by large file uploads or unstable internet connections. In such cases, the system allows for an alternative filing method: documents can be submitted via email to the appropriate regional court reception office. While not the preferred method, this fallback option ensures that filings can still be received when technical issues arise.
      Mark Tonkovich noted that an issue of inconsistency about the date of filing and date of processing. He mentioned that this does not appear to reflect a broader systemic problem and may rather be isolated to communication with a specific counsel or office. Nevertheless, he expressed an interest in determining whether there are inconsistencies in how submissions are handled, and whether counsel should be aware of any differences between the processing of submissions via e-filing, hard copy, or email. Martin Béliveau confirmed that a 20% increase of the workload had a significant impact on the timing of the Registry’s processing of incoming documents, and that the documents would be dated as of the date of submission.

4. Federal Court update
   1. Update from the Chief Justice
      1. Workload and scheduling – CJ Crampton reported a 400% surge in court workload since pre-COVID levels, with a projected 24,000 immigration files alone for 2024 and minimal staffing increases. Despite only a 10% rise in judicial capacity and cuts to registry resources, the court has managed to minimize delays—up to 3 months in some cities—through double-booking and last-minute scheduling. He cautioned that further volume increases could overwhelm the system. While virtual hearings remain an option, their use should be reasonable to avoid adding additional strains associated with converting in-person hearings to virtual hearings. Despite these challenges, the court continues to meet hearing date standards outside the immigration context.
         John Myers asked about the projected increase in trademarks. Justice Furlanetto indicated that this was related to the amendments of the Trademarks Act and challenges to new evidence. There is no date as to when the changes are coming into effect.
      2. Study Permit Pilot Project – The Study Permit Pilot Project is showing early success, offering expedited decisions, within 4–5 months instead of the usual 14–18, by eliminating post-leave steps like hearings. It's a voluntary, opt-in initiative that reduces workload for the court and benefits applicants with faster determinations on the merits. So far, 155 applications have been received, with a soft cap of 200, possibly expanding to 300–400, though the process remains manually managed due to limited IT resources. Early results suggest more withdrawals and settlements, helping reduce wasted judicial resources. While potentially less lucrative for counsel, the pilot is viewed as advantageous for clients. The court is exploring expansion to other areas such as temporary resident and work permits and is seeking input from the bar to prepare for internal discussions before the next court meeting in mid-April.
      3. Other potential measures to deal with the extraordinary workload increase – To address the court's workload surge, CJ Crampton suggested various measures, including reducing hearing times (which would enable judges to deal with more cases in a day), shortening submission lengths, and exploring options like assignment "blitzes" for similar types of cases. He emphasized that to manage the increased volume, new approaches must be explored. The Study Permit Pilot Project, designed collaboratively with the bar and Department of Justice, could serve as a model for further innovations. CJ Crampton also requested feedback on whether certain motions (like motions to strike) help or complicate workload and proposed the possibility of conducting some matters in writing only, to save hearing time and expedite final determinations. He underscored the need for creative solutions and stressed the importance of collaboration to manage the increased case load efficiently.
      4. Changes in the Court’s complement – Appointment of Justice Duchesne, formerly an Associate Judge, and Justice Saint-Fleur. In terms of departures, Justice Elliott retired on June1, 2024 and Justice Pamel was appointed to the Federal Court of Appeal on September 1, 2024.
      5. Parties requesting a hearing from abroad – CJ Crampton discussed the challenge of handling an increase in requests, particularly from self-represented litigants (SRLs) located abroad, amidst an already overwhelming caseload. The issue is whether to allow SRLs to proceed without an address for service or legal counsel, considering the balance between access to justice and the practical implications of additional workload. The Court is evaluating how to handle cases involving individuals outside Canada, such as those seeking permits, who are unrepresented but may benefit from virtual hearings. CJ Crampton invited feedback from the bar to guide policy decisions on this matter.

5. CBA Sections & Other Items
   1. Inconsistency in scheduling of judicial review applications at the Federal Court and appeals before the Federal Court of Appeal: more timely and better organization of these proceedings
      There is growing concern among counsel about inefficiencies in scheduling judicial review (JR) hearings. Counsel often submit a range of available dates, only to receive no response for months, or to be assigned dates on short notice, causing calendar conflicts. The scheduling process is manual and resource-constrained, relying on Excel and Word documents rather than an online or automated system. Though an online booking platform and AI-based scheduling tools have long been planned, they remain unfunded. The Court acknowledged the issue and noted that scheduling is complicated by high file volume, regional limitations, judicial availability, and the need for specific expertise. Expedited or urgent cases are prioritized, but even these face resource limitations. Currently, counsel are advised to provide availability six months out instead of the usual three, given the scheduling backlog. The Court encourages ongoing communication and commits to improving transparency and expectations. However, they also request the bar’s flexibility and understanding, as the small team of schedulers works within significant constraints.
   2. Written Reply in the Rules of Procedure: (i) eliminating the notice of appearance and requiring the Respondents to file a substantive response to the Notice of Application; or (ii) allowing the Applicant to file a brief (5 pages max) reply after receipt of the Respondents Memorandum of Fact and Law
      The discussion centered on challenges in judicial review proceedings where applicants may not fully understand the respondent’s position until the factum is received, potentially leading to surprise arguments. Suggestions were made to either eliminate the notice of appearance in favor of requiring an earlier substantive response or allow applicants a brief written reply after receiving the respondent’s memorandum. While these proposals aim to ensure fairness, concerns were raised, particularly by the Department of Justice, about committing to positions prematurely, and about adding procedural steps that could increase workload. It was acknowledged that while such situations are not frequent, they do occur. Judges currently have discretion to permit informal replies or supplementary documents, especially in complex or case-managed matters. Tools like summary charts outlining positions were seen as helpful when used appropriately. The Rules Committee is aware of these concerns, and although the status quo generally works well, the issue remains under consideration for potential procedural adjustments
   3. Aboriginal Law – Keltie Lambert
      No report.
      Justice Favel indicated that, along with new co-chair, Justice Blackhawk, the Aboriginal Law Liaison Committee is beginning preliminary planning for next year’s activities.
   4. Immigration Law – Nalini Reddy
      There are concerns about inconsistent delays in issuing payment requests after online filing of applications for leave and judicial review, with significant regional discrepancies, Ottawa being much faster than other areas. These delays can impact the timing of when an application is officially marked as filed, though the registry is generally careful with deadlines.
      To address this, the Court is developing a new "pay now" system requiring upfront payment at the time of online submission, which should streamline processing and reduce workload. This system is expected to be implemented by March or April of next year and should help manage increasing volumes more efficiently. Rule 9 requests are generally issued within 10 business days, and significant delays beyond 20 days may indicate an oversight, in which case parties are encouraged to follow up with the registry.
   5. Administrative, Human Rights, Labour, and Constitutional Law – Colleen Bauman
      No report.
   6. Intellectual Property – John Myers, Chelsea Nimmo
      There were no specific comments from the IP bar regarding the amendments to the PMNOC Guidelines, though the bar remains highly engaged in broader consultations on rule changes and case/trial management guidelines. Feedback has been channeled through various IP-focused groups, emphasizing the need for flexibility in applying these guidelines. The IP community is supportive of the Court’s ongoing efforts and looks forward to upcoming consultations. The updated IP case management guidelines are ready for publication following productive exchanges with stakeholders.
      Justice Manson indicated that last-minute settlements in complex IP cases remain a significant issue, particularly because they disrupt scheduling and waste the time of IP experts who have been recruited to the Court. Despite years of discussion, it continues to be a challenge when cases settle too late to reassign resources. To address this, amended case management guidelines, developed through extensive consultation with the bar, will soon be released. These will include a mandate under Rule 369 to introduce earlier settlement discussions involving both counsel and parties, in hopes of reducing the frequency of late-stage settlements and improving docket efficiency.
   7. Tax Law – Mark Tonkovich
      No report.
   8. Department of Justice – Catherine Lawrence
      There was a request for greater sensitivity and support for junior counsel making their first in-person court appearances, many of whom missed early oral advocacy opportunities due to the pandemic. The Court acknowledged the issue and discussed offering best-practices sessions to help junior lawyers, with openness to collaboration from bar associations and possible sessions in both official languages.
      On vexatious litigants, an update was provided that the DOJ website now includes clear instructions on how to obtain Attorney General consent under section 40(2), with a 30-day turnaround target. The process is now more transparent and interactive. There remains ongoing discussion within DOJ about possibly amending the legislation to remove the consent requirement, and stakeholders were encouraged to signal their support through appropriate channels.

Meeting of Federal Court of Appeal & Federal Court with CBA

1. Adoption of Agenda & Minutes

The members adopted the agenda and minutes.

2. Update from the Chief Administrator of the Courts Administration Service – Darlene Carreau

Risks/impacts associated with current fiscal situation

• CAS is operating at a time of a critical fiscal challenge.
• Non-renewal of sunsetted funding and a lack of requested additional funding in the last two Federal budget cycles has created a persistent deficit.
• Funding received has not kept paced with the Court's requirements, increased caseloads and expanded legal obligations.
• CAS failed to receive permanent funding for asylum cases.
• Only a quarter of the required funding was received to comply with the new Official Languages act legal obligations.
• CAS was asked to absorb the cost of pay increases of lawyers negotiated through the collective agreements that were handled by the Treasury Board.
• The Courts are experiencing a surge in the number of cases. The requested funding would have allowed for continued operations on existing workload but does not address recent surges.
• For the foreseeable future, CAS has implemented a staffing freeze and has limited discretionary spending, including training and travel.
• This will impact CAS’ ability to maintain operations. Resulting in increased backlogs and slowdowns in court proceedings or stoppages in some of the modernization projects.

Key priorities, including facilities, digital courts and official languages

• The Courts continue to seek out good ideas and efficiencies by
  • continuing their efforts to streamline operations to invest in automation and digitization.
  • review and look at areas where they can streamline or simplify the Rules to help reduce the burden on registry staff and improve access to justice.
• CAS has received some modest funding to make investments in digital courts.
• CAS will continue to invest in an E-Court functionality. They will invest in:
  • Converting two additional courtrooms in Toronto
  • Mock courtrooms
• The Montreal judicial complex is moving forward and is well underway ahead of schedule. The courts are slated to move to that new court facility in 2027.

Official Languages Act

• Further to consulting with the Chief Justices, it was decided that the focus would be on translating simultaneous decisions, given our limited funding.
• There continues to be a significant backlog of untranslated decisions due to a lack of funding. When the legislative amendments came into force, there was a backlog of approximately 1,400 decisions that had not been translated. Given the insufficient funding that we have been provided, that backlog rolling forecast may reach 2,400 decisions by the end of this fiscal year.
• Funding related to the amendments to the OLA is temporary and does create an additional financial pressure for the Courts. Since that additional funding will end in 2 years, it is not clear what the service level will be for the Courts.

In collaboration with the Chief Justices, CAS will meet with the Minister to address these urgent budgetary considerations that are now impacting litigants and access to justice and will seek to obtain a more sustainable funding model for the 4 Courts.

3. Follow-up Items from last meeting
   1. Residency Requirements for Judges of the Federal Courts and Tax Court
      • No new developments at this time.
      • The CBA has made it clear to the Minister that the amendments were not aimed at the Federal Court of Appeal
      • The DOJ confirms that the goal is to launch the consultations in January or February.
   2. New obligations under the Official Languages Act
      • The CBA will support CAS budget requests needed to comply with the new Official Languages Act obligations.

4. Joint Items for Federal Court of Appeal & Federal Court
   1. Rules Committee Update – Justice Laskin
      There are three projects underway at the Rules Committee:
      • Proposed amendments to Costs:
        • This project is successfully moving forward. The proposed amendments were Published in the Canada Gazette, Part 1 in February.
        • The subcommittee is working with DOJ on a revised draft of proposed amendments which take into account the comments received during the consultation process.
        • The Rules Committee expects to be asked to approve a final version of the proposed amendments shortly.
        • Once approved, the committee will work with the Treasury Board Secretariat, and the office of the Minister of Justice to obtain Governor and Council approval. Followed by its publication in the Canada Gazette, Part 2.
      • Proposal to amend Rules 317 and 318
        • The main objective is to streamline and clarify rules for the transmission of material from tribunals in the context of applications.
        • The subcommittee is working with DOJ to prepare draft amendments, and they will be presented to the Rules Committee at an upcoming meeting for discussion and approval.
      • Global review of the rules, which is led by a subcommittee.
        • A consultation document was prepared and circulated on April 2, 2024, and the consultation period ended July 2, 2024. The subcommittee received input and comments from a wide range of categories of participants in the justice system.
        • These comments are now under consideration by the Rules committee.

5. Joint Items for CBA
   1. Question raised by IP Bar: Would the Federal Courts adopt the use of an AI application within Zoom during case management conferences? Are the Federal Courts aware that this practice is used by other Courts?
      • The application is called AI companion. It serves as a case management tool.
      • They propose that the Registry offer to use this tool during case management conferences. If consented the tool would:
        • summarize the meeting as a transcript that could be circulated by the registry.
        • relieve the burden from counsel to take concurrent notes.
        • considered as an informal transcript and would not replace the DARS transcription.
      These questions are submitted for consideration.

6. Next Meeting

Meeting of Federal Court of Appeal with CBA

1. Opening Remarks
2. Update from the Federal Court of Appeal – Justice Stratas
   1. Court Operations
      • The caseload at the FCA has been stable year-over-year
      • 90% of filings are electronic.
      • Most hearings are heard in person.
      • In the past year, there have been 10 virtual hearings (Zoom) and 7 hybrid hearings. Attendance continues to grow for the Zoom webcasts of hearings.
      • The concern raised by the Bar regarding abrupt ending of Zoom webcast has been addressed.
   2. Changes to the composition of the Court
      • Appointment: Justice Pamel joined the Court bringing a specialist in admiralty law.
      • The Court is at full complement with 9 men and 8 women, very close to parity.
      • The Court is entering a period of stability, it may see some vacancies in 2026.
   3. FCA Registry Committee
      • Justice Stratas is the Chair of this committee and holds meetings regularly.
      • The Registry has greatest impact on public experience and continues to seek new ways to improve.
      • Ongoing committee discussions have led to:
        • A deeper understanding of the registry’s performance.
        • Providing information for judges on how to manage confidential materials at a hearing and how to handle problematic files and litigants carefully and efficiently.
        • Participation of judges at the Registry Townhall.
      • Members of the Bar are asked to contact the Registrar if there are any further concerns regarding e-filling.
   4. Rule 74 Pilot Project
      • This rule allows the Court to remove a document from a file if there's no jurisdiction to file it, or if the document is somehow fatally flawed.
      • The focus is on originating documents, such as notices of application and notices of appeal.
      • They are reviewed and screened by three judges. The judges can issue a direction to the parties to make submissions about the originating document, or whether it should be removed from the file and the file closed.
      • Advantages:
        • Registry resources can be allocated to other files or litigants.
        • Reduces the number of motions brought to the Court.
        • Provides some coaching to parties and promotes access to justice.
        • Afford judges more time to deal with meritorious claims.
        • In some cases, a disposition is rendered much faster.
      • The pilot project will proceed for an additional 5 months.
3. CBA Items
   1. Inconsistency in scheduling of judicial review applications at the Federal Court and appeals before the Federal Court of Appeal
      The Bar
      • Concerns were raised that hearings are not scheduled within the 3-month availability period provided by counsel. This makes it difficult for counsel to reserve time in anticipation for upcoming hearings.
      • Counsel would also appreciate communication that would allow them to release dates that have been reserved for a possible hearing once it is known that scheduling is not possible.
      The Court
      • The Court will bring these concerns to the Judicial Administrator.
      • The challenge is that the Court sits in hearings across Canada and often attempts to ensure that there are multiple hearings in a region before traveling.
      • There have also been delays in hearing back from counsel regarding proposed hearing dates.
   2. Written Reply in the Rules of Procedure: (i) eliminating the notice of appearance and requiring the Respondents to file a substantive response to the Notice of Application; or (ii) allowing the Applicant to file a brief (5 pages max) reply after receipt of the Respondents Memorandum of Fact and Law
      • No further discussion needed on this topic
4. CBA National Sections Updates and New Items
   1. Aboriginal Law / Droit autochtone - Keltie Lambert
      No updates.
   2. Immigration Law / Droit de l’immigration - Wennie Lee
      No updates.
   3. Administrative, Human Rights, Labour, and Constitutional Law / Droit administratif, droit de la personne, droit de travail, et droit constitutionnel - Colleen Bauman
      No updates.
   4. Intellectual Property / Propriété intellectuelle - John Myers
      Members are happy to participate in any further consultation on the Global Review.
   5. Department of Justice / Ministère de la justice – Catherine Lawrence
      Vexatious litigants
      • Department of Justice published information on its website for members of the public on how to bring a vexatious litigant application. Including information on the materials that are required to be filed as well as timelines.
      • The proposal to potentially remove the requirement for Attorney General consent from the Federal Courts Act and the Tax Court of Canada Act is currently with the policy sector of the Department of Justice.
5. Closing Remarks / Mot de cloture
   Justice Stratas thanked the members for attending.