On April 15, 2020, the Federal Court of Appeal (FCA) published an updated Notice to the Parties and the Profession (FCA Update). As we previously reported, the FCA suspended the running of time under the Federal Courts Rules (the Rules) to May 15, 2020 (the Suspension Period).

The FCA Update advises that circumstances permit the FCA to exempt some cases from its previous notices, allowing them to progress towards a determination on the merits. The FCA will review the list of cases and based on the nature, complexity, and the extent to which the record is electronic, the FCA will select the cases that are ready to progress.

Cases that are selected to progress

If a case has completed all procedural steps and been deemed ready for determination, it may be heard in one of three ways: (1) on the basis of written materials; (2) by teleconference or video conference; or (3) by in-person attendance of the parties. The FCA will make a preliminary decision as to the mode of the hearing.

Dispositions in writing

Where the FCA makes a preliminary decision that a case will be determined on the written materials, it will issue an order to inform the parties. The parties will be allowed to file five pages of additional written submissions. Parties may object to the FCA's decision to dispose of the case in writing by recording their objection in their additional written submissions. The FCA panel may uphold the objection and direct that the hearing be conducted either: (1) by teleconference or videoconference; or (2) in person, in which case the matter will be postponed until an in-person hearing is possible.

Hearings by teleconference or videoconference

Where the FCA makes a preliminary decision that a case will be heard by teleconference or videoconference, the FCA will issue an order for the date and time based on the parties' availability. At the conference, a party may request an in-person hearing rather than a teleconference or videoconference. If the FCA panel agrees, it may adjourn the hearing until it can be heard in-person.

Overriding discretion

Regardless of the mode of the hearing, the FCA panel has the discretion to direct the parties to provide additional written submissions, attend a teleconference or videoconference, or attend an in-person hearing to address specific issues or questions.

Cases that are not yet ready to be determined

If a case is selected to progress but is not yet perfected for hearing, the FCA will issue a direction to move the case forward and notifying them of a date on which the Suspension Period will cease to apply. From that date, the deadlines under the Rules, orders or directions will begin to run. When all procedural steps are completed and the case is ready to be heard, the FCA will then determine whether a hearing should be conducted and, if so, the mode of the hearing.

Cases that are not selected to progress

Parties may request at any time that a case be allowed to progress if it is urgent. On consent, parties may also request that their case be heard remotely. Requests and any responses to same may be filed by way of informal letter or email addressed to the Judicial Administrator.

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