Federal Courts Rules (SOR/98-106)

Marginal note:Hearing dates

• 35 (1) Subject to rule 298 and paragraph 385(1)(b), motions that can conveniently be heard at the General Sittings of the Federal Court may be made returnable accordingly.

• Marginal note:Special hearing dates

  (2) A request may be made informally to the Judicial Administrator of the Federal Court of Appeal or the Federal Court, as the case may be, for an appointment of a special time and place

  • (a) for sittings of the Federal Court of Appeal or of a judge of that court to hear a motion; or

  • (b) for sittings of a judge of the Federal Court or of a prothonotary to hear a motion that is likely to exceed two hours or a motion that is to be heard other than at General Sittings.

• Marginal note:Motion record

  (3) The request shall be accompanied by a motion record.

Marginal note:Adjournment

• 36 (1) A hearing may be adjourned by the Court from time to time on such terms as the Court considers just.

• Marginal note:Adjournment to fixed day

  (2) Where a hearing is adjourned to a fixed day, a party who appeared at the hearing is deemed to have had notice of the adjournment.

• Marginal note:Notice dispensed with

  (3) Where a party has failed to appear at a hearing, that party need not be served with notice of an adjournment of the hearing.

Marginal note:Failure to give notice

37 Where at a hearing the Court considers that any person to whom notice of the hearing has not been given ought to have had such notice, the Court may adjourn the hearing or dismiss the proceeding or motion.

Marginal note:Absence of party

38 Where a party fails to appear at a hearing, the Court may proceed in the absence of the party if the Court is satisfied that notice of the hearing was given to that party in accordance with these Rules.

Marginal note:Inability to continue

39 If a judge or referee of the Federal Court of Appeal or a Judge, prothonotary or referee of the Federal Court is for any reason unable to continue in a proceeding or to render a judgment that has been reserved, the Chief Justice of the court in question may order that the proceeding be reheard or retried, on any terms that the Chief Justice considers just.

Marginal note:Rota of Judges for Vancouver

• 40 (1) On or before July 1 in each year, the Chief Justice of the Federal Court shall, in consultation with the other judges of that court, establish a rota of judges for Vancouver for the twelve months commencing on September 1 of that year, excluding the seasonal recess.

• Marginal note:Powers of Chief Justice of the Federal Court

  (2) The Chief Justice of the Federal Court may make changes to the Vancouver rota, including the substitution of one judge for another during all or part of the judge’s period of assignment.

• Marginal note:Responsibilities of judges

  (3) A judge assigned to Vancouver shall reside in Vancouver for the period of the assignment and hold sittings and otherwise transact the judicial business of the Federal Court in Vancouver and in such other places as may be required.

• Marginal note:Assignment period

  (4) Except with a judge’s consent, the Chief Justice of the Federal Court shall not

  • (a) assign the judge to Vancouver for a period exceeding two months; or

  • (b) reassign the judge to Vancouver for a second assignment within two months after the end of the first.

Summoning of Witnesses or Other Persons

Marginal note:Subpoena for witness

• 41 (1) Subject to subsection (4), on receipt of a written request, the Administrator shall issue, in Form 41, a subpoena for the attendance of a witness or the production of a document or other material in a proceeding.

• Marginal note:Issuance in blank

  (2) A subpoena may be issued in blank and completed by a solicitor or party.

• Marginal note:Multiple names

  (3) Any number of names may be included in one subpoena.

• Marginal note:Where leave required

  (4) No subpoena shall be issued without leave of the Court

  • (a) for the production of an original record or of an original document, if the record or document may be proven by a copy in accordance with an Act of Parliament or of the legislature of a province;

  • (b) to compel the appearance of a witness who resides more than 800 km from the place where the witness will be required to attend under the subpoena; or

  • (c) to compel the attendance of a witness at a hearing other than a trial or a reference under rule 153.

• Marginal note:Ex parte motion

  (5) Leave may be granted under subsection (4) on an ex parte motion.

Marginal note:Personal service of subpoena

42 No witness is required to attend under a subpoena unless the subpoena has been personally served on the witness in accordance with paragraph 128(1)(a) and witness fees and travel expenses have been paid or tendered to the witness in the amount set out in Tariff A.

Marginal note:Witness fees

43 Where a witness is required under these Rules to attend a proceeding other than pursuant to a subpoena, the witness is entitled to witness fees and travel expenses in the amount set out in Tariff A.

44 [Repealed, SOR/2002-417, s. 7]

Marginal note:Compelling attendance of detainee

45 On motion, the Court may make an order in Form 45 requiring that any person who is in the custody of a prison or penitentiary be brought before the Court.

Marginal note:Failure to obey

46 Where a witness who is required to attend at a hearing fails to do so, on motion, the Court may, by a warrant in Form 46, order that the witness be apprehended anywhere in Canada, brought before the Court and

• (a) detained in custody until the witness’s presence is no longer required; or

• (b) released on a recognizance, with or without sureties, on condition that the witness attend to give evidence.

PART 3Rules Applicable to All Proceedings

General

Powers

Marginal note:Discretionary powers

• 47 (1) Unless otherwise provided by these Rules, if these Rules grant a discretionary power to the Court, a judge or prothonotary has jurisdiction to exercise that power on his or her own initiative or on motion.

• Marginal note:Exercise of powers on motion

  (2) Where these Rules provide that powers of the Court are to be exercised on motion, they may be exercised only on the bringing of a motion.

48 [Repealed, SOR/2004-283, s. 10]

Marginal note:Transfer of proceedings

49 If a proceeding has been commenced in the Federal Court of Appeal or the Federal Court, a judge of that court may order that the proceeding be transferred to the other court.

Marginal note:Prothonotaries

• 50 (1) A prothonotary may hear, and make any necessary orders relating to, any motion under these Rules other than a motion

  • (a) in respect of which these Rules or an Act of Parliament has expressly conferred jurisdiction on a judge;

  • (b) in the Federal Court of Appeal;

  • (c) for summary judgment or summary trial other than

    • (i) in an action referred to in subsection (2), or

    • (ii) in respect of a claim referred to in subsection (3);

  • (d) to hold a person in contempt at a hearing referred to in paragraph 467(1)(a);

  • (e) for an injunction;

  • (f) relating to the liberty of a person;

  • (g) to stay, set aside or vary an order of a judge, other than an order made under paragraph 385(a), (b) or (c);

  • (h) to stay execution of an order of a judge;

  • (i) to appoint a receiver;

  • (j) for an interim order under section 18.2 of the Act;

  • (k) to appeal the findings of a referee under rule 163; or

  • (l) for the certification of an action or an application as a class proceeding.

• Marginal note:Actions not over $100,000

  (2) A prothonotary may hear an action exclusively for monetary relief, or an action in rem claiming monetary relief, in which no amount claimed by a party exceeds $100,000 exclusive of interest and costs.

• Marginal note:Class proceedings

  (3) A prothonotary may hear a claim in respect of one or more individual questions in a class proceeding in which the amount claimed by a class member does not exceed $100,000 exclusive of interest and costs.

• Marginal note:Foreign judgment or arbitral award

  (4) A prothonotary may hear an application made under rule 327 for registration of a foreign judgment or recognition and enforcement of an arbitral award.

• Marginal note:Matters on consent

  (5) Despite paragraphs (1)(c) and (k), a prothonotary may render any final judgment that could be rendered by a judge of the Federal Court, except in a proceeding in respect of which an Act of Parliament expressly confers jurisdiction on a judge, if the prothonotary is satisfied that all of the parties that will be affected by the judgment have given their consent.

Appeals of Prothonotaries’ Orders

Marginal note:Appeal

• 51 (1) An order of a prothonotary may be appealed by a motion to a judge of the Federal Court.

• Marginal note:Service of appeal

  (2) Notice of the motion shall be served and filed within 10 days after the day on which the order under appeal was made and at least four days before the day fixed for the hearing of the motion.

Assessors

Marginal note:Role of assessor

• 52 (1) The Court may call on an assessor

  • (a) to assist the Court in understanding technical evidence; or

  • (b) to provide a written opinion in a proceeding.

• Marginal note:Fees and disbursements

  (2) An order made under subsection (1) shall provide for payment of the fees and disbursements of the assessor.

• Marginal note:Communications with assessor

  (3) All communications between the Court and an assessor shall be in open court.

• Marginal note:Form and content of question

  (4) Before requesting a written opinion from an assessor, the Court shall allow the parties to make submissions in respect of the form and content of the question to be asked.

• Marginal note:Answer by assessor

  (5) Before judgment is rendered, the Court shall provide the parties with the questions asked of, and any opinion given by, an assessor and give them an opportunity to make submissions thereon.

• (6) [Repealed, SOR/2010-176, s. 1]

Expert Witnesses

Marginal note:Right to name expert

• 52.1 (1) A party to a proceeding may name an expert witness whether or not an assessor has been called on under rule 52.

• Marginal note:Expert named jointly

  (2) Two or more of the parties may jointly name an expert witness.

Marginal note:Expert’s affidavit or statement

• 52.2 (1) An affidavit or statement of an expert witness shall

  • (a) set out in full the proposed evidence of the expert;

  • (b) set out the expert’s qualifications and the areas in respect of which it is proposed that he or she be qualified as an expert;

  • (c) be accompanied by a certificate in Form 52.2 signed by the expert acknowledging that the expert has read the Code of Conduct for Expert Witnesses set out in the schedule and agrees to be bound by it; and

  • (d) in the case of a statement, be in writing, signed by the expert and accompanied by a solicitor’s certificate.

• Marginal note:Failure to comply

  (2) If an expert fails to comply with the Code of Conduct for Expert Witnesses, the Court may exclude some or all of the expert’s affidavit or statement.

Marginal note:Exception for certain medical professionals

52.3 The rules governing expert witnesses do not apply to a medical professional who has given or is giving medical treatment or advice to a person if the evidence in relation to the person is limited to one or more of the following subjects:

• (a) the results of an examination;

• (b) a description of the treatment or advice;

• (c) the reason the treatment or advice was or is being given; and

• (d) the results of the treatment or advice.