Focus On

Crampton looking forward to new progress on big challenges

Thursday, July 16, 2015 @ 8:00 PM | By Cristin Schmitz

The Federal Court seems to be on a roll.

It’s true its reputation was sideswiped by the Marc Nadon debacle last year, and that Ottawa plans to erect a memorial to victims of communism on the spot reserved for the court’s long-awaited courthouse.

But the horizon seems mostly bright. The latest federal budget provides $19 million to upgrade physical and cybersecurity at all locations of the itinerant Ottawa-based court including the Federal Court of Appeal, the Tax Court and the Court Martial Appeal Court, which are also administered by the Courts Administration Service (CAS).

After years of pressure, the federal government also reluctantly agreed to substantially boost the pay, pensions and other benefits of the court’s prothonotaries — key judicial officers who handle case management, motions and some trials.

Most importantly, the national trial court — at press time, 35 full-time members, seven supernumeraries and five prothonotaries —has had 15 new judges appointed since April 2014, a huge shot in the arm to a chronically shorthanded court with a caseload that until recently had a burgeoning backlog.

The recent recruitment of senior practitioners with strong expertise in the court’s docket — including litigation, IP, administrative, immigration, national security, admiralty and competition law — means the court is positioned to achieve its main goals, according to Federal Court Chief Justice Paul Crampton.

“Access to justice and modernization are the top priorities — we’ve been making progress on both those fronts,” the competition law expert said in an interview at his Sparks Street office overlooking Parliament Hill.

Notably, the court has succeeded in beating down delays over the past year. A blitz drastically reduced the immigration backlog in Toronto, where the court does most of its business. Across Canada, immigration judicial reviews are now normally scheduled within 90 days of granting leave. Cases in Toronto take one or two more months more.

“At this time last year, we were 10 months behind,” the chief justice said. “We have reduced that to two months by allocating additional judicial resources, as well as double-booking” and backfilling cases that settle at the last minute

Lawyers with IP and other trials whose clients want to fast-track cases now are usually heard within a year.

“We’re doing our best to improve the time aspect of access to justice,” the chief justice said.

Also important for lawyers and their clients are changes announced this month that aim to improve the court’s practice and procedure applying to all stages of a case, devised after consultation with the bar by a working group led by Justice Michael Manson. They implement a Supreme Court directive in Hryniak v. Mauldin [2014] S.C.J. No. 7 that in civil justice the process must be proportionate to the nature of the dispute and the interests involved, and the most painstaking procedure is not always the best means for resolving a dispute.

The reforms include more robust and efficient case management such as earlier involvement of trial judges, early consideration of mediation, limits on appeals of prothonotaries’ interlocutory orders, and creating a short-notice wait list that offers earlier trial dates when other scheduled cases settle. As well, limits on documentary discovery aim to help aboriginal and IP practitioners and clients overwhelmed by expensive and unwieldy document deluges. Importantly, the court is going to aggressively enforce new oral discovery restrictions to ensure that the costs and time spent are in line with the dispute’s nature and complexity.

Unless the parties agree, or the court orders otherwise due to “special circumstances,” oral discovery limits will be based on the number of days fixed for trial, or the estimated duration of the trial. For example: for a one-week trial or less, one day of oral discovery per party; for a one- to two-week trial, two days per party; for five-plus weeks of trial, four days per party. Any follow-up discovery will be limited to one day per party.

The five-expert limit per party, absent leave of the court, is now to be strictly and consistently enforced.

As well, “we are really going to clamp down on refusal motions,” the chief justice said of motions to compel parties to answer discovery questions they refused to answer.

“Sometimes we will get refusal motions for 1,000 — I’ve even seen 4,000 — questions,” Chief Justice Crampton said.

Refusal motions are not permitted until discoveries are complete and are limited to one hour per day of discovery of each party’s representative. Significant cost sanctions can be imposed on unsuccessful or unreasonable parties. Questions must be answered unless clearly improper or prejudicial, or in breach of privilege. Answers provided under objection will be considered by the trial judge, if necessary.

“That’s an important initiative for us on access to justice,” said the chief justice. “We are putting renewed energy and commitment in our work to revise the rules” to incorporate the proportionality principle. That includes an upcoming discussion paper on costs.

The court is also encouraging more litigants to use its simplified proceedings (summary trials).

To provide speedier access to justice, the court also aims to issue more oral judgments and endorsements where appropriate — for example, in short immigration judicial reviews that don’t have precedential value.

“We have traditionally been a writing court,” the chief justice acknowledged. Other courts routinely use oral judgments, even in complex family and criminal matters. “We should be able to do it,” he said.

The court has also ramped up its outreach to the legal community, for example by actively twinning judges with particular law schools and conducting live judicial reviews at the schools. The judges meet regularly with specialized and regional bars across Canada. They are developing educational material on IP law, civil procedure, administrative law, aboriginal law and admiralty law that they can use when invited to address law schools, “to increase awareness and understanding of the court,” the chief justice said. Raising the court’s profile also helps to recruit top-flight candidates for the bench, he noted.

Recruitment is an ongoing pressing issue for the court. It currently has a full bench, but eight judges will be eligible to go supernumerary in the next 18 months or so. A statutory requirement that the court’s travelling judges must live in Ottawa continues to deter good candidates from across Canada, whose families are often not prepared to make the move, the chief justice said.

“I think it’s an antiquated requirement,” said the ex-Bay Street practitioner who was lured to Ottawa by the prospect of public service. “We need a sustainable way forward because we can’t become an Ottawa-Gatineau court with…very few members from the rest of the country.”

The court also said it needs seven or eight prothonotaries, but at press time had just five. One prothonotary who retired in April has not been replaced, and amid calls from the organized bar the government has declined to give an assurance that particular position would not be phased out altogether.

Asked how being down a prothonotary is affecting his court, the chief justice admits “some matters are moving along a lot more slowly. I’ve got a significant number of files that I am kind of holding on to because the judges are all fully booked for the next six months.”

If new prothonotaries are not appointed — several are eligible to retire in the next couple of years — “we’ll have to deal with it,” the chief justice said. “It’s going to substantially change how the court has functioned, and it’s going to force us to adapt. But I think judicial efficiency and access to justice are going to suffer.”

Another major challenge the court faces is upgrading its paper-based registry to a digitalized court record management system. The CAS requested $26 million in the last budget for an IT overhaul of the four courts it administers. Nothing materialized. “We’re hoping that that will come, perhaps in the next budget,” the chief justice said. “The bar is functioning in an electronic environment themselves, and yet they are still coming to this paper-based organization.”

Meanwhile, the chief justices stressed “we’re not standing still waiting for the $26 million…The bottom line is we’re actively looking at how to shift away from being a paper-based organization.”

To that end, the court is talking to companies and exploring what the cost and benefits might be if private industry made the substantial up-front investment to upgrade the court’s IT, which the company would then recoup by filing fees.

“Then the government can make a decision: Do they want filing fees, or are they happy to perhaps consider $26 million in the next budget request?” the chief justice said. “I think it’s not an option to just stand still.”