COVID-19 UPDATE: Canadian Federal Courts Further Extend Temporary Measures Into June And Take Steps To Expand Remote Hearings

June 1, 2020

This post was originally published March 23, 2020 and was updated on April 6, 2020 and June 1, 2020.

The Federal Courts in Canada have extended into June certain temporary measures implemented as a result of COVID-19, including adjournment of all in person hearings and suspension of certain timelines in ongoing proceedings. However, the Courts have also expanded matters that can be heard remotely and are gradually exempting cases from the suspensions.    

Adjournment of Hearings

Federal Court

Subject to the exceptions below, all in person hearings up to and including July 12, 2020 before the Federal Court (“FC”) have been adjourned. 

The FC will hear the following matters remotely (namely in writing or by telephone or video conference):

  • Urgent or exceptional matters: The Court will determine what constitutes “urgent” and “exceptional” on a case-by-case basis.
  • Case management hearings: The Court will continue to manage cases, and issue orders and directions, when the Court considers it appropriate to do so.
  • Hearings requested of a party: The Court will endeavour to accommodate any requests for a hearing by telephone or video conference during the suspension period. These requests will be assessed on a case-by-case basis.
  • Matters at the Court’s initiative: The Court has identified a substantial number of matters that are ready to proceed (or are close to being ready to proceed) and will be reaching out to parties to discuss scheduling those matters.
  • Adjudication in writing: The Court will continue to adjudicate motions in writing, applications for leave to apply for judicial review, and any other matters that the Court is requested to determine in writing.

The consent of all parties is not a pre-condition to the exceptions above, except for requests to proceed in writing with respect to:

  • a matter that had previously been scheduled to be heard in person, by teleconference or by video conference; or
  • a matter that had not previously been scheduled, but would ordinarily be adjudicated other than in writing.

For all other matters, if one or more of the parties does not consent, the Court will consider all circumstances, including whether there is a true impediment to proceeding by video conference or teleconference, before making a decision as to whether, when and how to proceed.

Federal Court of Appeal

Subject to the exceptions below, all in person hearings before the Federal Court of Appeal (“FCA”) up to June 15, 2020 have been adjourned.

The FCA will continue to hear urgent matters, which will proceed by way of telephone conference.  In addition, parties whose proceeding was ready to be heard on March 13, 2020, may on consent request to have the matter heard remotely, which will be accommodated by the Court where the circumstances permit. Parties may also opt to have the matter disposed of on the basis of written materials filed with the Court. 

Further, the FCA is reviewing pending cases to determine which cases should progress.  Cases that are selected to progress and are ready for a hearing will proceed by one of three modes of hearing, namely (i) on the basis of written materials, (ii) by teleconference or video conference, or (iii) by in-person attendance (which is not yet available).  The Court will make a preliminary decision as to the mode of hearing and the parties will have an opportunity to object to that preliminary decision to the panel assigned to hear the matter. 

For cases selected to progress for which some procedural steps need to be completed, the Court will issue a direction to move the case forward (which will include a notification that the suspension period discussed below will no longer apply).

Suspension of Timelines

Federal Court

The FC has extended the suspension of timelines until June 15, 2020 plus an additional 14 days.  As a result, subject to the caveats discussed above and below, for the period of March 16, 2020 to June 29, 2020 the running of all timelines established pursuant to the following instruments is suspended:

  • Orders and Directions of the Court made prior to March 16, 2020;
  • the Federal Courts Rules;
  • the Federal Courts Citizenship, Immigration and Refugee Protection Rules;
  • subsection 18.1(2) of the Federal Courts Act;
  • subsection 72(2) of the Immigration and Refugee Protection Act; and
  • subsection 22.1(2) of the Citizenship Act.

However, the suspension period does not apply to timelines set out in any Orders or Directions issued on or after March 16, 2020 since.  Also, the additional 14-day period beyond June 15 does not apply to proceedings that are the subject of case management.

The deadlines for commencing actions, appeals or applications under other statutes continue to apply and cannot be extended or varied unless permitted under the terms of and in the manner prescribed by those statutes.  Parties can request an extension of time for deadlines set out in other applicable statutes if they are unable to meet the filing deadlines in light of current circumstances.

Federal Court of Appeal

The FCA has extended the suspension period to June 15, 2020.  As such, subject to the exceptions discussed above, for the purposes of the calculating time under the Federal Courts Rules or under any direction or court order, the period March 16, 2020 to June 15, 2020, inclusive shall not be included in the calculation of time (in other words, time will not run during the suspension period). 

The deadlines for commencing appeals or applications before the FCA under sections 27 and 28 of the Federal Courts Act and other statutes continue to apply and cannot be extended or varied unless permitted under the terms of and in the manner prescribed by those statutes.  That said, the FCA has noted that for deadlines under the Federal Courts Act, if circumstances prevent timely filing, parties may seek an extension of the deadlines and judges seized of these requests will have to take into account the Court’s notice and the suspension period in exercising their discretion.  

Copies of the COVID-19 notices issued by each Court can be located at the links below:

DISCLAIMER: This publication is intended to convey general information about legal issues and developments as of the indicated date. It does not constitute legal advice and must not be treated or relied on as such. Please read our full disclaimer at www.stikeman.com/legal-notice.

Stay in Touch with Knowledge Hub