November 6, 2020
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The Federal Court has issued new case and trial management guidelines (the “Guidelines”) for complex proceedings (or proceedings which require at least five trial days) and for proceedings under the Patented Medicines (Notice of Compliance) Regulations.
A summary of the Guidelines is provided below.
A. Complex Proceedings
i. General
Election for short notice trial. Parties can request, on consent, to be added to a short-notice-trial waiting list.
ii. Discovery
Electronic documents. Parties are encouraged to produce documents electronically.
Discovery planning. Parties must make a bona fide effort to agree on and set realistic timetables. Missed deadlines set at case management conferences, without adequate justification, can result in consequences, including significant costs.
Limits on oral discovery. Parties can no longer agree to additional discovery days, beyond what it set out in the Guidelines without an order of the Court:
One (1) day for trials scheduled for 5 days or less;
Two (2) days for trials scheduled for 6 to 10 days;
Three (3) days for trials scheduled for 11 to 20 days; and
Four (4) days for trials scheduled for 21 days or more.
Follow up discovery will be limited to one (1) day per party.
Examinations for discovery. No questions are to be taken under advisement, questions should be answered unless clearly improper, prejudicial or would require the disclosure of privileged information, and answers provided under reserve of objection will be considered by the trial judge, if the objection is not sustained.
iii. Motions
Limits on refusals motions. No motions will be permitted until discovery is complete, and such motions will be limited to one (1) hour per day of discovery of each party’s representative. There may be significant cost consequences for unsuccessful and/or unreasonable parties.
No motions may be brought within 60 days of the trial date without leave.
Motions for commission evidence must be brought as soon as it is deemed necessary to the party seeking such order, and in any event, no later than two (2) months before trial.
iv. Expert Evidence
Strict enforcement of the limit on the number of experts. Absent extraordinary circumstances, the Court will strictly enforce the limit of five (5) expert witnesses called by each party in a proceeding (Rule 52.4 of the Federal Courts Rules).
Areas of agreement between experts. Parties must make ”bona fide” efforts to agree on issues of fact and law, including interpretation/construction of science, technology and other expert evidence.
Experimental testing. Where a party intends to establish any fact in issue by experimental testing conducted for the purpose of litigation, it must give reasonable notice to the other parties no later than two (2) months before the service of its expert reports(s). That notice must include:
The facts to be proven by such testing;
The nature of the experimental procedure to be performed;
When and where counsel can attend to watch the experiment(s);
When and in what format the data/test results will be shared with the adverse parties.
The two-month notice requirement may be abridged by the case management judge.
Unless a party intending to rely on such experiments has advised the other parties, it shall not, without leave, lead evidence at the trial or hearing as to any of these experiments.
Expert Reports to be relied upon at trial. Expert reports in chief to be relied upon at trial shall be submitted to the court (electronic and paper format) at least two (2) weeks before trial.
v. Pre-Trial Preparation
Trial management conference. A trial management conference shall be requisitioned, with a proposed agenda, to take place at least two (2) months prior to trial.
The requisition shall propose the timing of any motions that need to be brought. The timing of closing arguments shall be canvassed at the trial management conference or at the beginning of the trial with the trial judge. The mode of delivery of trial documents should also be discussed. The Court encourages digital versions of documents via a USB key, with hyperlinks to caselaw.
No new demonstrative evidence at trial. Demonstrative evidence must be exchanged at least 60 days before trial. Objections to any such evidence must be raised with the case management judge and/or trial judge at least 45 days before trial, unless the Court orders otherwise.
Early engagement. Counsel are expected to make a bona fide effort to consult and engage experts early in the pre-trial stage to properly assess their case’s merit. Counsel should provide opposing counsel with early notice of their experts’ views regarding issues in dispute.
Objections to expert reports/qualifications should be made to the case management judge within 30 days of service of the reports and no later than 30 days prior to trial.
Cost consequences may follow an unsuccessful challenge to expert qualifications.
Proposed schedule for trial. A proposed trial schedule, including the order and estimated duration of the testimony of witnesses and opening statements, shall be submitted to the Court and trial judge at least two (2) weeks before trial. In the alternative, parties may agree to use a “chess clock” and use their allocated time as they see fit.
Joint statement of issues. Parties shall make a bona fide effort to prepare a joint statement of issues to be delivered two (2) weeks before trial.
Science and technology primers. Parties may be required to provide, jointly or separately, science and technology primers to the Court before trial.
Exchanging a description of proposed area of testimony is required. Parties shall exchange a brief description of the proposed areas of testimony of fact witnesses at least two (2) weeks before trial. The parties should make a bona fide effort to discuss the use of witness statements and fact stipulations where cross-examination may not be necessary.
Agreed statement of facts and joint book of documents. Parties shall submit an electronic and paper version of an agreed statement of facts and an agreed joint book of documents at least two weeks prior to trial. Counsel should agree on the authenticity and admissibility of as many documents as possible. Disagreements should be addressed before trial. The agreement should be filed with the Court.
Pre-trial conference memorandum. Parties shall advise the Registry whether the trial judge may have access to the pre-trial conference memorandum or portions of the memorandum.
Compendia and testimony by videoconference. Compendia in both electronic and paper format shall be provided to the trial judge. Best efforts should be made to provide joint compendia.
Counsel may request that one or more out-of-town witnesses be permitted to testify by videoconference. The request should be made at least 60 days before the start of trial. Counsel will be responsible for ensuring the proper and effective functioning of video technology to be used by their witnesses.
Special equipment or facilities. Any special equipment/facilities needed for trial which has not been discussed at the pre-trial conference shall be requisitioned no later than three (3) weeks before trial.
Written arguments – 50 pages or less. Written arguments shall not exceed fifty (50) pages, unless directed otherwise. Written arguments in both electronic and paper format shall be provided.
B. Patented Medicines (Notice of Compliance) Regulations Proceedings
Letter to the Registry. The Statement of Claim shall be accompanied by a letter to the Registry which meets the requirements set out in the Guidelines.
Notice of Intention to Respond. The second person must file a Notice of Intention to Respond within 10 days of service of the Statement of Claim.
Requisition of first case management conference. The requisition letter to the Court should address the steps listed in the new PMNOC Timetable Checklist.
Initial case management conference. An initial case management conference will be held within 28 days of Statement of Claim issuance.
Subsequent case management conferences. Parties are to confer amongst themselves before requesting any case management conference or bringing any motion.
No new demonstrative evidence at trial. Demonstrative evidence must be exchanged at least 30 days before trial. Objections to any such evidence must be raised with the Court at least 20 days before trial.
No pre-trial conferences. There are no pre-trial conferences for proceedings under the PM(NOC) Regulations.
First trial management conference. The parties shall requisition a first trial management conference forthwith upon the trial dates being fixed.
Further trial management conference. A further trial management conference should be held at least 30 days prior to trial.
Tutorial session. At the request of the trial judge, the parties shall provide a tutorial session.
Evidence at trial. The parties shall adduce evidence-in-chief by way of affidavit, subject to variation by the Court. The prior guidelines only placed an “expectation” on parties to adduce evidence-in-chief by way of affidavit.
Where fact evidence will be adduced by viva voce testimony, counsel shall submit an outline of the areas of testimony in advance of trial.
Parties may agree that certain fact evidence may be introduced without cross-examination.
Trial length. Trials shall be completed in two (2) weeks or less, subject to the Court's discretion.
Authors: Jordan Scopa and Jaclyn Tilak