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Federal Courts Rules (SOR/98-106)

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Regulations are current to 2021-06-28 and last amended on 2021-06-17. Previous Versions

PART 3Rules Applicable to All Proceedings (continued)

General (continued)

Appeals of Prothonotaries’ Orders

Marginal note:Appeal

  •  (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.

  • SOR/2004-283, s. 33
  • SOR/2007-130, s. 3


Marginal note:Role of assessor

  •  (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  • (6) [Repealed, SOR/2010-176, s. 1]

  • SOR/2010-176, s. 1

Expert Witnesses

Marginal note:Right to name expert

  •  (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.

  • SOR/2010-176, s. 2

Marginal note:Expert’s affidavit or statement

  •  (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.

  • SOR/2010-176, s. 2

Marginal note:Exception for certain medical professionals

 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.

  • SOR/2010-176, s. 2

Marginal note:Limit on number of experts

  •  (1) A party intending to call more than five expert witnesses in a proceeding shall seek leave of the Court in accordance with section 7 of the Canada Evidence Act.

  • Marginal note:Leave considerations

    (2) In deciding whether to grant leave, the Court shall consider all relevant matters, including

    • (a) the nature of the litigation, its public significance and any need to clarify the law;

    • (b) the number, complexity or technical nature of the issues in dispute; and

    • (c) the likely expense involved in calling the expert witnesses in relation to the amount in dispute in the proceeding.

  • SOR/2010-176, s. 2

Marginal note:Objection to expert

  •  (1) A party to a proceeding shall, as early as possible in the proceeding, raise any objection to an opposing party’s proposed expert witness that could disqualify the witness from testifying.

  • Marginal note:Manner of raising objection

    (2) An objection may be raised

    • (a) by serving and filing a document containing the particulars of and basis for the objection; or

    • (b) in accordance with subsection 262(2) or subparagraph 263(c)(i) if, in the case of an action, the objection is known prior to the pre-trial conference.

  • SOR/2010-176, s. 2

Marginal note:Expert conference

  •  (1) The Court may order expert witnesses to confer with one another in advance of the hearing of the proceeding in order to narrow the issues and identify the points on which their views differ.

  • Marginal note:Presence of parties and counsel

    (2) Subsection (1) does not preclude the parties and their counsel from attending an expert conference but the conference may take place in their absence if the parties agree.

  • Marginal note:Presence of judge or prothonotary

    (3) The Court may order that an expert conference take place in the presence of a judge or prothonotary.

  • Marginal note:Joint statement

    (4) A joint statement prepared by the expert witnesses following an expert conference is admissible at the hearing of the proceeding . Discussions in an expert conference and documents prepared for the purposes of a conference are confidential and shall not be disclosed to the judge or prothonotary presiding at the hearing of the proceeding unless the parties consent.

  • SOR/2010-176, s. 2

Orders and Directions

Marginal note:Orders on terms

  •  (1) In making an order under these Rules, the Court may impose such conditions and give such directions as it considers just.

  • Marginal note:Other orders

    (2) Where these Rules provide that the Court may make an order of a specified nature, the Court may make any other order that it considers just.

Marginal note:Motion for directions

 A person may at any time bring a motion for directions concerning the procedure to be followed under these Rules.

Varying Rules and Dispensing with Compliance

Marginal note:Varying rule and dispensing with compliance

 In special circumstances, in a proceeding, the Court may vary a rule or dispense with compliance with a rule.

  • SOR/2004-283, s. 11

Failure to Comply with Rules

Marginal note:Effect of non-compliance

 Non-compliance with any of these Rules does not render a proceeding, a step in a proceeding or an order void, but instead constitutes an irregularity, which may be addressed under rules 58 to 60.

Marginal note:Wrong originating document

 An originating document shall not be set aside only on the ground that a different originating document should have been used.

Marginal note:Motion to attack irregularity

  •  (1) A party may by motion challenge any step taken by another party for non-compliance with these Rules.

  • Marginal note:When motion to be brought

    (2) A motion under subsection (1) shall be brought as soon as practicable after the moving party obtains knowledge of the irregularity.

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