Federal Courts Bench and Bar Committee Meeting Minutes: May 31, 2024

Meeting of Federal Court with CBA

Attendance:

for the Federal Court: Chief Justice Crampton, Justice Manson, Justice Norris, Associate Judge Duchesne

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

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

Regrets: Associate Chief Justice Gagné, Justice Strickland, Justice Fothergill, Justice Favel, Catherine Lawrence

1. Opening Remarks
2. Adoption of Agenda & Minutes

The members adopted the agenda and minutes.

3. Follow-up items from last meeting
   1. Pilot Project: Online access to Court records
      CJ Crampton indicated that the next phase will expand the scope of documents to allow non confidential documents for the areas that are currently in scope of the pilot. The project would then include immigration matters but further consultations are required to determine the scope. Martin Béliveau mentioned that the end goal for the registry is to have all documents posted online with the onus on the parties to identify if a document is confidential.

4. Federal Court update
   1. Update from the Chief Justice
      1. Workload and scheduling – The Court is operating at above capacity, noting important increase in immigration but also in class actions and national security. The Court continues to schedule matters within its target standards.
      2. Mode of hearings – CJ Crampton reiterated the flexible approach of the Court to grant request for a change in the mode of hearing, as set forth in the Amended Consolidated Practice Direction, and asked the Bar to make their request for a hybrid hearing well in advance.
      3. Changes in the Court’s complement – CJ Crampton mentioned the appointment of Justice Whyte Nowak from the IP Bar, Justices Grant and Battista from the Immigration Bar, Justice Blackhawk from the Indigenous Bar and Associate Judge Moore from the Class Actions Bar. CJ Crampton also noted the appointment of Justices Walker and Rochester to the Federal Court of Appeal and the retirement of Justice Mosley. With Justices Brown and Manson going supernumerary, respectively in June 2024 and February 2025, the Court will have 4 vacancies.
      4. 2026-2030 Strategic Plan – CJ Crampton announced that the process leading to the 2026-2030 Strategic Plan has started internally and encouraged the Bar to start thinking about the upcoming consultation and topics they would like to see addressed.
   2. Update on the Use of Artificial Intelligence in Court Proceedings
      The Court published an amended notice published on May 7, 2024 requiring that the declaration identify the specific paragraphs where AI was used. The notice also clarifies that it does not apply to expert reports and identifies 7 principles that will guide the potential use of AI by members of the Court and law clerks.
   3. New obligations under the Official Languages Act (OLA)
      The amendments to the OLA will come into force on June 20, 2024 and require that decisions, orders or judgments with precedential value be simultaneously issued in both official languages.
      CJ Crampton provided a few examples of factors that the Court might take into consideration when determining precedential value in its decisions.

5. CBA Sections & Other Items
   1. Rejection of filings by the registry and staff being unreachable
      Sarah Miller reported incidents related to audio files in terms of accessibility in reaching registry officers. She mentioned that documents were rejected and suggested that the Court make that determination rather than the registry. Justice Manson confirmed that documents not meeting the rules must be sent to the Court for direction. Deborah Drukarsh mentioned that errors in immigration files create a high volume of filings. CJ Crampton suggested doing a video on how to submit documents through e-filing. Deborah Drukarsh reminded that the webinars created during the pandemic are still available on the Court’s website.
      Jordana Sanft referred to the Global Review consultation and the suggested changes to allow more flexibility for the registry to refuse documents.
   2. Fee waivers for impecunious clients (legal aid, prisoners, etc.)
      Sarah Miller referred to legal aid in Alberta where counsel working under legal aid were refused a fee waiver. The Court was not aware and will follow up. Martin Béliveau explained that in Alberta particularly and elsewhere in the registry, there are many new employees and that he will inquire.
   3. Aboriginal Law - Keltie Lambert
      No update from the Bar. Justice Favel reported that the number of matters for triage is constant compared to previous years. There is however an increase in class actions to report. CJ Crampton mentioned that Justice Blackhawk will be joining the Aboriginal Law Liaison Committee as co-chair. CJ Crampton asked if the land acknowledgement statement mentioned in the Consolidated Guidelines provided the guidance requested by the bar. Keltie Lambert indicated that she has not heard any issues and added that the option to have hybrid and virtual hearings is appreciated by the communities. Justice Favel reiterated that such requests will be granted. CJ Crampton also mentioned the option to have a webcast. Translation in indigenous language is also available.
      Keltie Lambert reported that changes to provincial child welfare law may result in a board decision and end up in the Federal Court. She will provide more information. Justice Favel will take this issue to the sub-committee.
   4. Immigration Law - Wennie Lee
      Wennie Lee referred to a Law360 article and asked for clarification on the Global Review and in particular the question about the representation of non-counsel. Justice Norris confirmed that it was not the Court’s intention to address the immigration context. The Global Review item relates to the context of class actions.
   5. Administrative, Human Rights, Labour, and Constitutional Law - Colleen Bauman
      Colleen Bauman reported the scheduling of judicial review hearings within a week to the hearing. Justine Drouin indicated that these were a consequence of judicial resources being available after a trial settled and she recognized that confirmation with counsel should be effected in the future.
   6. Intellectual Property - Jordana Sanft (Chair/Présidente), John Myers, Chelsea Nimmo
      John Myers reported that members were encouraged to participate to the Global Review consultation. IP representatives mentioned the difference between summary judgment motion and summary trial and sought clarification. Justice Manson referred to the standard being different and indicated that the Bar was encouraged to use summary trial as credibility issues can be raised.
      Jordana Sanft mentioned a practice where CMCs are now webinars instead of Zoom meetings. Martin Béliveau indicated that this practice was reverted and was no longer in force. Webinars are generally only used in trials, cases attracting media attention, indigenous matters and those attracting an important number of participants.
      Jordana Sanft reported issues with trials containing confidential information. She indicated that the organization of excluding participants in virtual settings was creating concerns. Martin Béliveau will look into this issue and mentioned that the webinar settings could be the reason. Justice Manson recommended counsel coordinate amongst each other and present the confidential information subsequently. Jordan Sanft also suggested that the registry officer obtain the list of participants needing to be present and who would need to be excluded in advance of the hearing.
   7. Department of Justice – Deborah Drukarsh
      No update.

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

Operating Context

• Currently operating under fiscal restraint, with Budget 2024 providing only temporary funding for three years to comply with the new legislative amendments under the Official Languages Act, which amounts to approximately 25 cents on the dollar of what we requested.
• Budgets 2023 and 2024 did not restore funding previously received for asylum cases in the Federal Court, even as Budget 2024 allocated $743.5 million to IRCC, CBSA, and IRB to support Canada’s asylum system, leading to increased demand on the Federal Court.
• The combination of partial funding for the Official Languages Act and the lack of asylum funding for two consecutive years has created a significant budget gap.
• Other requests for funding, such as for digital modernization, were also refused.
• To address these challenges, CAS has developed a comprehensive strategy focused on streamlining operations and realizing efficiencies through automation and digitization with currently available funding, alongside a review of global rules in the Federal Court and Federal Court of Appeal. While these efforts may require short-term investments, they aim to improve the effectiveness and efficiency of court services in the long run.
• Financial situation significantly limits capacity to address key risks, particularly the inadequacy of organizational funding to meet legislative requirements, the inability to maintain an acceptable level of service during disruptions, and challenges in fulfilling both existing and new Official Languages Act obligations.

Strategic Priorities

• CAS will continue to invest in E-Court functionality by converting two additional courtrooms in Toronto, conducting pilot projects to test E-Court equipment, and stabilizing internal systems to reduce cyber risks and enhance agility in implementing essential changes.
• Also working to improve E-filing and E-pay functionality, develop a digital services strategy applicable to all four Courts, and provide training for staff to ensure consistency nationwide.
• Broken ground in Montreal for the new judicial complex and we are also moving forward with plans for improvements to our court facilities in Toronto, Halifax, Oakville, Winnipeg, Saskatoon, and Victoria.

Official Languages Act

• Effective June 20, 2024, amendments to the Official Languages Act requires the Courts to make decisions of precedential value available simultaneously in both official languages. CAS’s historical translation budget has been inadequate, resulting in a backlog of untranslated decisions and complaints to the Commissioner of Official Languages. As available funding is redirected towards decisions of precedential value, the service standard for translating those decisions is likely to slip to between 15 to 18 months. It is anticipated that it may go as high as two years without additional funding.
• While Budget 2024 provides additional funding, it is still insufficient to fully meet the new obligations; this funding will be used to hire jurilinguists, and digitize our operations, including piloting AI translation software.

3. Follow-up Items from last meeting
   1. Residency Requirements for Judges of the Federal Courts and Tax Court – Jordana Sanft
   • The government announced in Budget 2024 that it intends to launch consultations on repealing the residency requirements for Federal Court of Canada and Tax Court of Canada judges.
   • The President of the CBA has set up a working group of members to help with the consultation. They hope to work with members of the CBA as well as the Minister.
   • The CBA has made apologies for any miscommunication/misunderstanding with the Courts, in particular, the Federal Court of Appeal.
   Chief Justice de Montigny is of the view that for the Federal Court of Appeal, the residency requirement is valued for collegiality purposes and sharing information. The Court does not want the residency requirement to change for its members.
   Jordana Sanft discussed the possibility of using a practice direction to shape the requirements of residency if the legislation changes.
   Chief Justice Crampton offered that the Federal Court has been able to significantly increase diversity and get more regional representation with a flexible approach to the residency requirement. However, when judges travel between two cities outside the National Capital Region, they can only get reimbursed up to the amount that it would have cost to travel between Ottawa and the destination city.

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:
   • Global review of the rules, which has led to a subcommittee.
     • consultation document was been prepared and posted online on April 2, 2024
     • consultation period ends July 2, 2024
   • Proposal to amend Rules 317 and 318:
     • drafting instructions to be submitted to the Department of Justice Legislation section
   • Proposed amendments on costs:
     • subcommittee is comprised of representatives from the Federal Court of Appeal and Federal Court
     • the Rules Committee has considered and adopted the proposals of the Cost Subcommittee
     • final drafting instructions to be submitted to the Department of Justice Legislation section

5. Joint Items for CBA
   1. 2024 Federal Budget and update
      This was discussed earlier in the meeting – nothing further to add.
   2. Fee waivers for impecunious clients (legal aid, prisoners, etc.)
      This was discussed earlier in the meeting – nothing further to add.

6. Next Meeting

Meeting of Federal Court of Appeal with CBA

1. Opening Remarks
2. Update from the Federal Court of Appeal – Chief Justice Yves de Montigny
   1. Court Operations
   • The Court’s workload has been stable over the last few years.
   • Minor increase of proceedings in 2023, with a significant number of proceedings coming from the Tax Court as well as appeals from the Federal Court.
   • By default, all hearings are held in person.
   2. Changes to the composition of the Court
      Appointments:
   • Justice Elizabeth Walker – from the Federal Court
   • Justice Vanessa Rochester – from the Federal Court
     One vacancy remains open – expected to be filled in the Fall of 2024
   3. Court Initiatives / Initiatives de la Cour
   Court hearings can be viewed online. Members of the public wishing to view a hearing remotely may register to receive a Zoom link to view the hearing on the Court’s website. Registrations and invitations are managed by the Zoom platform.
   Jordana Sanft conveyed a general appreciation and the great feedback received for the ease in access to FCA hearings online. She noted that there is no announcement that indicates that the hearing has concluded. This creates confusion because user are not sure if the connection was dropped or if the hearing ended.
   François Desrosiers noted the feedback provided and will take steps to address the issue.

3. Follow-up items from last meeting – Chief Justice Yves de Montigny
   1. Updates to the Consolidated Practice Direction
   The Court consolidated a number of practice directions issued by the Court. This year an update will be issued to address some of the concerns raised by the Bar, including but not limited to:
   • clarifying how to file compendium and condensed books, and;
   • the filing of confidential documents.
   The Court’s intention is to update the Consolidated Practice Direction once a year. To that end, the Bar’s feedback is appreciated.
   The Chief Justice highlighted paragraph 34 of the Consolidated Practice Direction:
   34. Hearings are fixed by the Judicial Administrator in accordance with the instructions given by the Chief Justice. To preserve the efficient and effective allocation of the Court's time, as well as that of parties, Requisitions for Hearing are required to include each party’s estimate of the time needed for their hearing, and indicate the duration of the hearing in the Court or Tribunal that rendered the decision being appealed or judicially reviewed.
   The Court wishes to emphasize that parties are required to provide an estimate of the time needed for their hearing on the requisition form in order for the Judicial Administrator to schedule the hearings in an efficient manner, including the duration of the hearing in the Court or Tribunal that rendered the decision being appealed or judicially reviewed.
   2. New obligations under the Official Languages Act
   Despite budgetary constraints, the Court is taking every measure to comply with the Act and to issue reasons in a timely fashion.
   Jordana Sanft clarified that the use of the concept of “precedential decision” is for the purpose of the Official Languages Act at the Court level as a way of triaging decisions to be translated, and will not have an impact on the kinds of decisions that litigants can use in submissions.
   Chief Justice de Montigny confirmed that it is for the purpose of the Official Languages Act.

4. CBA National Sections Updates and New Items
   1. Aboriginal Law / Droit autochtone - Keltie Lambert
      No updates for this Court.
   2. Immigration Law / Droit de l’immigration - Wennie Lee
      No updates for this Court.
   3. Administrative, Human Rights, Labour, and Constitutional Law / Droit administratif, droit de la personne, droit de travail, et droit constitutionnel - Colleen Bauman
      No updates for this Court.
   4. Intellectual Property / Propriété intellectuelle - Jordana Sanft (Chair/Présidente), John Myers, Chelsea Nimmo
      Positive feedback in terms of obtaining dates and hearings scheduled before the Court, and the timeliness of the hearings themselves. Statistics have shown that IP decisions have been issued much faster over the past few years
   5. Department of Justice / Ministère de la justice – Deborah Drukarsh
      No updates for this Court.

1. 5. Closing Remarks / Mot de cloture
   Chief Justice de Montigny thanked the members for attending.