{"id":8822,"date":"2024-06-25T06:37:31","date_gmt":"2024-06-25T10:37:31","guid":{"rendered":"https:\/\/cila.co\/?p=8822"},"modified":"2024-09-30T16:16:37","modified_gmt":"2024-09-30T20:16:37","slug":"cilas-submission-to-consultations-on-amending-federal-court-of-canadas-rules","status":"publish","type":"post","link":"https:\/\/cila.co\/fr\/cilas-submission-to-consultations-on-amending-federal-court-of-canadas-rules\/","title":{"rendered":"CILA’s submission to Consultations on Amending Federal Court of Canada’s Rules"},"content":{"rendered":"

In April 2024, the Federal Court of Canada’s Rules Committee launched public consultations on changes they are considering. The following is CILA’s response to the consultations.<\/em><\/p>\n

<\/p>\n

1.Please indicate which category best represents you.<\/strong><\/p>\n

Association<\/p>\n

2.If you agree to be contacted with any follow-up questions, you may provide us with your email address.<\/strong><\/p>\n

N\/A<\/p>\n

3.With respect to Issue 1 of the Invitation to participate, should the Rules be modernized to more fully address electronic service?\u2019<\/strong><\/p>\n

The primary issue at hand is the proposed transition to electronic service and filing as the default procedure, necessitating all document filers to provide an email address for this purpose.<\/p>\n

The Canadian Immigration Lawyers Association (CILA) supports this change in principle, but cautions a careful consideration of potential unintended consequences, contemplating the preservation of exceptions.\u00a0 Essentially, the proposal entails requiring parties to provide an email with each document filed with the court, deeming consent to electronic service if an electronic address is provided, and mandating proof of service by email, including the time sent and attaching a copy of the email. While we generally view this move viewed positively, it’s essential to ensure all consequences are thoroughly considered, with consideration given to the broader legal community’s perspective and also the impact on unrepresented litigants.<\/p>\n

In particular, CILA has concerns about the practicality of electronic filing in cases involving lawyers or self-represented litigants located abroad, in geographic areas where technological barriers exist or where governments at times deliberately restrict online access.\u00a0\u00a0 For instance, both Iran and China’s intermittent blocking of electronic services raises concerns. This could pose a significant challenge for self-represented litigants or lawyers temporarily visiting these countries who may need to file documents.\u00a0 This is not a hypothetical situation – some CILA members have already experienced this first-hand.\u00a0 Preserving the option to use fax (or another alternative filing method) could offer a solution. Overall, while not fundamentally opposed to the direction of this proposal, CILA feels it is vital to address all potential consequences comprehensively.<\/p>\n

Moreover, if the Court opts for a complete transition to online processes, we have concerns about how to address issues of continuity and data validation. For instance, what happens if there are disruptions in the system or if data transmission is interrupted? These are critical considerations that need to be addressed, particularly in the context of sensitive legal work where accuracy and reliability are paramount.<\/p>\n

We further point out that technology is imperfect, and even the best systems will sometimes fail.\u00a0 We encourage the Court to consider implementing a means of notifying the legal community in a timely way when tech failures occur (and in particular how it may affect filing deadlines), so that counsel are not left in anxious uncertainty.<\/p>\n

4.With respect to Issue 1\u00a0of the Invitation to participate, should the Rules be modernized by standardizing the use of electronic filing?<\/strong><\/p>\n

See our response above, in item 3.<\/p>\n

5.With respect to Issue 2\u00a0of the Invitation to participate, should the Rules be amended to eliminate outdated practices as described? Are there other anachronisms in the Rules that should be addressed?<\/strong><\/p>\n

As mentioned in item 3, while transitioning to electronic filing as the default option is overall favourable, it is essential to retain back-up alternative methods like faxing, considering the continued reliance on fax by some visa posts and also by self-represented individuals who are not tech-savvy. Without options like faxing, it could pose accessibility challenges for those who struggle with online systems.<\/p>\n

Additionally, we have some concerns about business continuity, privacy, and the potential loss of control over electronic documents. If a full transition to electronic service and filing were implemented, how does the Court intend to maintain control over the documents and their privacy, and how do the parties and their counsel do so?<\/p>\n

Perhaps the Court could establish a process for exceptions for those who genuinely need it. For self-represented litigants who may not be tech-savvy enough to even know how to request an exception, having it available by default may be beneficial.<\/p>\n

6.With respect to Issue 3\u00a0of the Invitation to participate, should the Rules be amended to incorporate important elements from the Practice Directions?<\/strong><\/p>\n

    \n
  1. a) to more fully address the filing of confidential documents?
    \nb)\u00a0to explicitly allow a moving party to seek leave, by way of letter, to be relieved from the requirement of bringing a formal motion in specified circumstances?
    \nc)\u00a0to clarify the procedure for seeking an adjournment?
    \nd)\u00a0to reflect paragraph 74 of the FC\u2019s Amended Consolidated Practice Direction?
    \ne) to\u00a0require that condensed books,\u00a0compendia and day books be filed on appeal, or make explicit the FCA’s authority to require that they be filed?
    \nf) to address the use of compendia in the FC?
    \ng) to\u00a0provide that an outline of oral argument may be filed?<\/li>\n<\/ol>\n

    <\/p>\n

    CILA does not feel strongly about Issue 3, but we offer the following comments:<\/p>\n

    Confidentiality does not need to be dealt with in a motion; it can be in the notice and addressed in the record; it can be by notice; or it can be by agreement.<\/p>\n

    Costs is not an issue for our bar because costs are not typically awarded.<\/p>\n

    It is not clear to us how mandating compendia would be particularly helpful in IMM cases, given that counsel are supposed to be restricted only to arguing what is in their memoranda in any event. Consequently, we feel that reducing oral argument in writing doesn’t really serve much purpose. What would be much more useful is if the parties were consistently strictly held to the requirement to stick to their written submissions in oral arguments.\u00a0 That said, in uncommon instances where the evidence and argument are extensive, compendia can sometimes be useful, even if only to focus counsel before getting to court.<\/p>\n

    7.With respect to Issue 4\u00a0of the Invitation to participate, should the Rules be amended to reflect jurisprudential developments (see specific examples in the Invitation to participate)?<\/strong><\/p>\n

    CILA has VERY SIGNIFICANT CONCERNS about permitting representation by a non-lawyer under any circumstances.\u00a0 We do understand that the Committee is likely contemplating this only in very rare circumstances, but the language of the Invitation does not necessarily reflect this.<\/strong> We have grave concerns about opening a Pandora’s Box, as we believe opening the door even a crack will lead to significant abuse and many unintended consequences.<\/p>\n

    Something is not always better than nothing.\u00a0 Access to justice is more than access to cheap or even free counsel, but rather to COMPETENT and ethical counsel.\u00a0 There is no clarity on how the proposed action would promote access to justice and the Rule of Law when in fact it will likely only promote ineffective representation.\u00a0 Frankly, CILA believes that a litigant is better off with no counsel at all than with ineffective counsel – at least a self-represented litigant benefits from the ethical rules for dealing with unrepresented parties which govern both the Department of Justice and Judges.\u00a0 We also point out that the Canadian Judicial Council specifically states that is is STRONGLY advisable to be represented specifically by a lawyer (cjc-ccm.ca\/en\/what-we-do\/access-justice)<\/p>\n

    In addition, there is simply no evidence to support the idea that litigants represented by non-lawyers would get the litigation support they need more easily or in a less expensive manner.\u00a0 In fact, many non-lawyers already charge fees equal to or higher than many lawyers for immigration services.\u00a0 Add to this the fact that the absence of a lawyer would encourage unmeritorious litigation, unnecessarily prolong and complicate the steps of litigation, and decrease a client’s overall chances of success.\u00a0 We are also concerned overall about negative impacts on the development of the jurisprudence, as bad facts and ill-considered litigation make bad law.<\/p>\n

    In all areas of immigration law practice, there are well-known existing problems of ghost representation.\u00a0 The Court has already expressed concerns about this.\u00a0 Make no mistake – a huge number of consultants, both licensed and otherwise, covet the opportunity to access Federal Court processes under a guise of legitimacy as a way of enhancing their business model.\u00a0 If non-lawyers are permitted to (even rarely) represent clients in the Federal Court, it would encourage the illegal practice of law.\u00a0 We point out that in 2022, nearly 40 per cent of the Montreal bar’s investigations into the illegal practice of law were related to immigration (barreaudemontreal.qc.ca\/en\/public\/illegal-practice)<\/p>\n

    CILA is aware that immigration consultants (both licensed and unlicensed) are already drafting and filing AFLJRs on a ghost basis, and our members know of many cases where clients were lied to that lawyers were involved when they were not.\u00a0 Any move toward non-lawyer exceptions will only encourage such behaviour.\u00a0 The public is already confused about the distinction between a lawyer and a consultant and would be at risk of being further misled and exploited.<\/p>\n

    Allowing non-lawyers any scope at all would increase the burden on judges and on Court administration.\u00a0\u00a0 Persons without legal training do not know how to conduct a proper merits assessment, which would certainly result in a sharp increase in filing of non-meritorious cases, creating further backlogs.\u00a0 Competent lawyers regularly discourage clients form filing non-meritorious cases in the Court, and regularly encourage discontinuing existing cases that either should not have been filed or for which weaknesses come to light at a later time during litigation.\u00a0 Furthermore, incompetently represented litigants put judges and Department of Justice counsel in a very awkward position, having to review and respond to irrelevant or nonsense arguments, and all at the taxpayer\u2019s expense.<\/p>\n

    Finally, we point out that IMM files involve a unique client base, many of whom are vulnerable persons for whom the stakes of litigation are high.\u00a0 They deserve only the best, which means qualified counsel.<\/p>\n

    8.With respect to Issue 5\u00a0of the Invitation to participate, should the Rules be amended to adjust the monetary limits upwards for simplified actions?<\/strong><\/p>\n

    We take no position on this.<\/p>\n

    9.With respect to Issue 6\u00a0of the Invitation to participate, should the Rules be modified to expand the role of associate judges?<\/strong><\/p>\n

    CILA lacks information about the training and capacities of associate judges, and therefore we are unable to comment.<\/p>\n

    10.With respect to Issue 7\u00a0of the Invitation to participate, should the Rules be amended to provide limited discretionary power to the registry to either accept or refuse non-compliant documents?<\/strong><\/p>\n

    CILA supports the facilitation of timely and efficient administrative decisions at the Federal Court.\u00a0 We support providing limited discretionary power to the registry to accept non-compliant documents to facilitate the same.\u00a0 However, given the variance in practice by registry officers and the degree to which they may sometimes rigidly adhere to various compliance requirements, we believe that the registry should not be granted discretion to refuse non-compliant documents.\u00a0 Doing so may have the opposite effect by leading to increased objections from the parties or the Court that would then need to be adjudicated, which would in turn create more work and delay for all stakeholders.<\/p>\n

    11.With respect to Issue 8\u00a0of the Invitation to participate, should the Rules governing class actions be amended to reflect certain procedural changes that have been made in the provinces, notably Ontario?<\/strong><\/p>\n

    CILA takes no position.<\/p>\n

    12.The Sub-Committee welcomes any comments and suggestions regarding the miscellaneous amendments identified in Issue 9\u00a0of the Invitation to participate.<\/strong><\/p>\n

    7(2) seeks to change consent duration from one half of the \u201cperiod sought to be extended\u201d to one half of the \u201cinitial period\u201d.\u00a0 We are unsure of the meaning.<\/p>\n

    R51 speaks in general terms to any order of a Prothonotary; it is not limited to simplified actions.\u00a0 The 10-day deadline in R51(2) should arguably be extended for all actions.\u00a0 It should also be extended to all applications that are either case managed or class actions.\u00a0 The Rule ought to also clarify whether an order of a Prothonotary can be appealed in an application for judicial review of immigration decisions where leave has been granted.<\/p>\n

    We are unclear of the meaning of \u201cRemove the 30-day notice in the notice of pre-trial conference under R261\u201d. R259 requires the administrator to fix a time and place but without formal notice from the Court, how would the parties know where and when to appear?<\/p>\n

    R305: CILA welcomes the proposal for a Notice of Appearance under R305 to require the Respondent to outline the grounds of opposition.\u00a0 We do not believe the timeline of 10 days for filing said notice needs an extension; 10 days provides sufficient time for an initial review of a rendered decision.\u00a0 While the Respondent is not using the 10 days presently (filing pro forma Notice of Appearances often within 2 to 3 days of being served), they can rely on the full 10 days to prepare an individualized Notice of Appearance.\u00a0 We advise against exteding the 10 day limit as it would provide the Respondent disproportionate time in preparing its notice; Applicants are given only 15 days often, which time includes the need to investigate the decision, seek and retain appropriate counsel.<\/p>\n

    R306 – we are supportive<\/p>\n

    R308 \u2013 CILA supports this initiative but believes a firm limit should be set for cross-examinations.\u00a0 We suggest extending the 20-day limit to 45.<\/p>\n

    R314(2)(c) – we are supportive<\/p>\n

    R314(2)(d) \u2013 CILA believes requiring parties to provide availability for more than 90 days is unlikely to yield helpful results.\u00a0 As most hearing dates of the Federal Court and the Immigration and Refugee Board are not set more than 90 days ahead, parties would likely not yet have their availabilities beyond that time.\u00a0 Seeking such availability would likely yield only general statements of availability or extended leaves.<\/p>\n

    Procedural points<\/p>\n

    R95(2) requires some thought.\u00a0 Forced responses for affiants may later form the basis of inadmissibility concerns, for example.\u00a0 Perhaps the wording could clarify that the answers provided shall not be used for any other purpose than the trial.\u00a0 But we do agree that this would save significant time to get as much of the answers out as possible as it often negates the need for a motion to review the objection.<\/p>\n

    We oppose creating a Rule requiring either leave of the Court or consent of the parties for a party to communicate with the Court.\u00a0 This would create disproportionate hardship for IMM applicants as they are often the ones seeking informal guidance from the Court on substantive matters, and because they are at a systemic disadvantage in garnering the consent of the Respondent.<\/p>\n

    13.The Sub-Committee welcomes any comments and suggestions regarding the items identified under the heading “Other areas of possible reform” in the Invitation to participate.<\/strong><\/p>\n

    We support a Rule to confirm the right to appeal where leave has been granted, or directly to FCA.\u00a0 Without it, immigration applications continue to have no review capability if the judge doesn\u2019t certify a question, which is done in such a small percentage of cases before the Court.<\/p>\n

    14.The Sub-Committee welcomes any comments and suggestions regarding possible reforms beyond those identified in the Invitation to participate.<\/strong><\/p>\n

    References to number of paper copies of a document that must be filed to be either removed or appended with confirmation of a single electronic filing instead (e.g. R364(1)).\u00a0 Without clear guidelines on this issue, parties are left to the Court\u2019s case-by-case decisions on the need to produce paper copies despite having filed electronic copies.\u00a0 An unexpected need to file paper copies could create hardships for litigants as the cost of doing so can be considerable. They may even lead to doubling of fees for applicants as counsel may charge for the time it takes to prepare electronic filings, including tabbing and bookmarking PDFs to be filed, in addition to charges for the preparation of physical copies such as printing, binding, and service\/filing.<\/p>\n

    As the timelines for applications are set based on the idea that the Court\u2019s adjudication will be based on a \u201cdead-record\u201d, meaning in anticipation that the parties do not need to gather evidence, they are not responsive for applications challenging systemic issues.\u00a0 While the Court has devised the case management process to adjudicate the needs of such applications, having to request extensions at every turn and for each instance is still daunting, and causes significant work for all stakeholders.\u00a0 CILA suggests that all applications assigned to case management run on timelines that are at least double, if not triple, the standard timelines for applications.<\/p>","protected":false},"excerpt":{"rendered":"

    In April 2024, the Federal Court of Canada’s Rules Committee launched public consultations on changes they are considering. The following is CILA’s response to the consultations.<\/p>","protected":false},"author":115,"featured_media":5399,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"inline_featured_image":false,"footnotes":""},"categories":[593,6],"tags":[527,526],"class_list":["post-8822","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-positions","category-thought-leadership","tag-consultations","tag-federal-court-of-canada"],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t