Practice direction aimed at streamlining complex litigation issued

On May 1 2009 the Canadian Federal Court issued a practice direction aimed at streamlining complex litigation. Overall, the court's objective is to facilitate, where possible, the scheduling of trials to commence within two years of the start of the proceeding.

The practice direction reminds parties and their counsel that case management is always available to them and may preferably be requested at the outset of a proceeding.

The practice direction also identifies a number of techniques to facilitate the efficient conduct of discovery that may be implemented by way of an order for directions from the case management judge, including:
  • requiring timely advance notice to the party to be examined of possible lines of questioning and documents sought to be produced;
  • requiring timely production of documents in advance of the examination;
  • permitting discovery to be conducted by both written interrogatories and oral examination;
  • fixing time limits on discovery;
  • making the case management judge available by telephone to make rulings during discovery or appointing, on consent, a neutral party to attend the discovery and make rulings, subject to review by the court at the request of a party, or to hear motions relating to questions refused subject to review by the court at the request of a party; and
  • using technologies, including common databases, litigation support software and other aspects of modern technology to enhance document disclosure and use at trial.
Parties are also encouraged to use the request to admit procedures provided for in Rules 255 and 256 of the Federal Court Rules prior to discovery to simplify the discovery of facts, documents and other non-controversial matters.

The practice direction also offers the following suggestions and reminders to parties:
  • parties may also seek an order for directions pursuant to Rule 147 allowing service by email;
  • parties are reminded that pursuant to Rule 400(3), in exercising its discretion under Rule 400(1) relating to costs, the court may consider any conduct of a party that tended to shorten or unnecessarily lengthen the duration of the proceeding, among other things; and
  • at any point in a case-managed proceeding, a party may request that a trial date be assigned - where a party requests a trial date early in the action, the court will endeavour, where possible, to have the action tried within two years of its commencement.
The practice direction reflects a number of initiatives that have already seen implementation in some IP actions in the Federal Court. Of note, in April 2009 closing arguments were completed in Sanofi-Aventis Canada Inc v Apotex Inc. This action commenced in January 2007 and concerned the drug ramipril. Early in the proceedings, the plaintiffs obtained an order setting the matter down for a 30-day trial to commence on January 12 2009 on all issues, including standing, liability and remedies. Aggressive use of case management permitted the action to be conducted within the two-year timeframe and for the trial to proceed as scheduled.

IP rights holders will readily appreciate that the ability to bring an infringement action to trial and obtain judgment in a timely and cost-effective manner is critical to effective enforcement. It is expected that the court's continuing commitment to the efficient conduct of complex litigation illustrated by the new practice direction will lead to further examples like the ramipril litigation of IP infringement actions proceeding quickly to trial in Canada's Federal Court.

Colin B Ingram, Smart & Biggar/Fetherstonhaugh, Ottawa

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