Focus On

Bar groups fear prothonotaries to be phased out soon by Ottawa

Thursday, March 26, 2015 @ 8:00 PM | By Cristin Schmitz

The spectre of the federal government phasing out the 44-year-old post of Federal Court prothonotary has alarmed lawyers across the country.

Prothonotary Roza Aronovitch retires on April 2, but at press time the federal Department of Justice had not announced a replacement despite a pool of qualified, pre-vetted candidates and Chief Justice Paul Crampton’s written request months ago for a timely replacement.

The Federal Court was not able to confirm whether it expected a timely appointment, and Justice Minister Peter MacKay’s political staff and Department of Justice officials did not respond to Lawyers Weekly inquiries about the government’s plans with respect to prothonotaries, and in particular replacing Prothonotary Aronovitch. At press time, her case management and other responsibilities were expected to be transferred to the Federal Court’s judges, who already have their hands full traveling across the country hearing and deciding cases.

“I think as currently advised, that’s the situation,” said Donald Cameron, an IP specialist with Toronto’s Bereskin & Parr. “But I’m hopeful and my understanding is that this whole matter is under active consideration as we speak. Whatever they are considering I hope they make the right decision, which is to continue the positions.”

Mario Bellissimo of Toronto’s Bellissimo Law Group called the prospect of prothonotaries being phased out a “shocker,” adding that prothonotaries are “important for motions, and dealing with issues, to help expedite some of the matters before the court. So the concern we would have, of course, is what’s going to be the substitute?”

Immigration lawyer Lorne Waldman of Toronto’s Waldman and Associates told The Lawyers Weekly that it would be “extremely unfortunate” to get rid of the post.

“There is a very large backlog of cases in immigration matters,” Waldman said by e-mail. “The court has made an effort to eliminate [the backlog] but it is still present. Any measure that reduces the number of prothonotaries will have an adverse effect on the ability of the court to do its business, and will increase the backlog of immigration cases.”

Representatives from the IP and aboriginal bars met in December with MacKay’s judicial affairs advisor and DOJ officials to discuss the issue, and dozens of lawyers, the Intellectual Property Institute of Canada (IPIC) and the Canadian Bar Association have entreated the government to say what future it sees for prothonotaries.

Cameron noted prothonotaries’ “focused case management” makes it possible for the Federal Court to hear the patented medicine notice of compliance battles between generic and brand-name pharmaceutical companies within the two-year statutory time frame. “They are doing a very good job at it,” he said.

Cameron wrote a letter to MacKay in November, signed by more than 50 fellow senior IP lawyers, requesting that if the justice minister did not intend to eliminate the prothonotary position, as rumoured, he should “allay our fears.” Failing that, the IP bar asked for a meeting “to try to persuade you to maintain, or even expand, the current number of prothonotaries in Federal Court.”

Government assurances did not materialize after the December meeting.

“In the short term it seems to be no approval for replacement of Aronovitch,” Cameron said. “I think they’re still considering [a phase-out]. I don’t think any decision has been made finally, one way or the other, what they’re going to do. So that’s why we’re still hopeful that they’ll take into consideration the submissions we’ve made, and continue the prothonotary role and, if anything, maybe even increase it.”

The Federal Court’s six prothonotaries “make an invaluable contribution to the efficient operation of those courts,” the CBA stressed in its submission to MacKay last month.

Prothonotaries do case management, including of class actions. They also do trials of actions up to $50,000, and decide motions on a wide range of matters including the Charter and complex commercial law.

“If any consideration is being given to phasing out prothonotaries, we are concerned about the degradation of the court’s capabilities and timeliness,” said the CBA’s letter co-signed by Christopher Wilson and Paul Harquail, respective chairs of the national association’s IP section and the Federal Courts bench and bar liaison committee.

Bar groups point out that prothonotaries do most of the case management in the Federal Court, whose IP and immigration workload has skyrocketed over the past decade. Their work includes informally dealing with interlocutory matters involving pleadings, discovery questions, costs and the like, reducing the need for motions.

Prothonotaries also handle most interlocutory motions, freeing up judges to handle more substantive motions, hearings of applications and trials. They also mediate more often than judges, and do so successfully (95 per cent of IP cases settle before trial). As well, they conduct simplified trials on affidavits (one to five days), freeing up judges for more complex matters.

Moreover, unlike the Federal Court’s Ottawa-based, itinerant judges, prothonotaries work in major litigation centres across Canada, enabling them to be more readily available to the bar and litigants for hearings, case conferences or mediations, the CBA and IPIC say.

Delegating to a prothonotary, who earns 76 per cent of a judge’s pay and pension, “reduces the cost of court operations,” IPIC pointed out to MacKay last December.

“Thus prothonotaries provide better access to justice, at a lower price to taxpayers,” wrote the institute, which represents more than 1,700 trademark and patent agents and IP lawyers.