February 18, 2015 ia
V email: [email protected] e e , ., ., e Th Honourabln Peter MacKay P.C Q.C M.P. Minister of Justic and Attorney General of Canada 284 Wellingto Street Ottawa, ON K1A 0H8
Dear Minister: t a
Re:e iteFederal n Cour of Canade Prothonotariesian s n e W wr at o behalf of th Canad e Bar Association e ’s Federal e Courtient Bench andn Bar eLiaiso Committee (FCBBLC) and Intellectuale Property Section (th CBA Section) to express the view th prothonotaries at improv accesse toejustic and th effic operatiot of th Federal Court, ande should b nretained. The FCBBLC consists of1 CBA memberst representinge areas of law th regularly at appeart befor th FederaleC ourts. The Cour Practices Committee e of th CBA Sectio is tasked with reviewing Federal Cour procedur and addressing matters th affec process and procedur in intellectual property matters before th court s.e e e e in e e p e e e . e e Prothonotaries ar judiciale officers of th Federal Court. Th offic was created 1971 to advance “th efficient erform eanc a of th worktantof th Court”e at T h rol and responsibilitiese of prothonotaries e hav grown dramatically T e since, particularlyn after 1998n amendmentse to thn Rules.tain Prothonotaries hav eunique, impor rol th is integrale toeth properent functioning of th Federal atCourt . hey hav jurisdictio ineand discretio e to mak decisionsent a o cer in matterse , lighteninge th loadientof thee Judges eand they exercis cas P managem functions,entanalogous e e to the of masters, to help streaml cases. Cas managem is key factors th effectiv and cost -effic us of scarc judicial e resources.e rothonotaries e complem th rol of th Judges by implementing procedures and schedules to move case forward as quicklye as possible,e e while respecting th substantive rightsat of th parties. e an e n e n e T e As lawyers who practic befor th Federal Courts, our experienc is th prothonotaries
mak invaluabl contributioo to th efficient operatio of thos courts. t h dattached 1 The Committee als consists of a representative of Justice Canada, who is no involve in any public statement on behalf of the Committee, including this letter. 500-865 Carling Avenue, Ottawa, ON, Canada K1S 5S8 tel/tél. : 613.237.2925 | toll free/sans frais : 1.800.267.8860 | fax/téléc. : 613.237.0185 | www.cba.org Membership/Adhésion : [email protected] | PD/DP : [email protected] | Sections : [email protected] | General/Générale : [email protected]
2
e ent e a a e t ent at e e e letter and tth docume entitled, t"Why Prothonotariestant aintainar aGood Ide forentth Federal Court" respond to anconcerns abou e rec suggestions inth eth us of prothonotaries may b phased ou ofn th Federal enCourt. I is impor t to m fulle compleme of Federalt Court Judgesn , and e ongoing rol for prothonotaries th Federal Courts. If any consideratio is being giv to phasing ou prothonotaries, w ar concerned abou degradatio of th Court ’s capabilities o ande timeliness.e t t e e e e We urge you to avoid any changes t th rol of prothonotaries withou inpu from thos who appear regularly befor th Federal Courts, including representatives from th CBA.
(originalYours truly, signed by Rebecca Bromwich for Christopher Wilson and Paul Harquail)
n Christopher Wilson Paul Harquail Chair, Intellectual Property Section Chair, Federal Courts Bench and Bar Liaiso Committee
encl. (2)
Why Prothonotaries are a good idea for the Federal Court
Prothonotaries are specialized: e – e an 1. in e Prothonotaries in case managementar highly specialized and certainly in mor specialized th judges e – cas management, interlocutorytant in motions, mediations and simplified ntrials. ea a. , with, experience movingatecases along. Their rolt is particularly impor Intellectual a Propertye ematters. I nthe ar of intellectual property lawe Prothonotarie s adjudice patent, copyrigh and tradee -mark matters, including n e largt volum e of litigatio involving pharmaceuticals. Thes disputes usually involv complex issues which can b procedurally demanding o th Cour and th parties . e ) e ate Prothonotaries ain manage complex Patentede etMedicines (Notic of Compliance) (“NOC”OC proceedings . Thes proceedings in rel to generic druge companiesry trying to g early entrye into eth mark by contesting blocking patents. e N proceedings have tripled number since 2002. Sinc Janua 2008, NOC proceedings hav been cas managed with Prothonotaries handling th majot ritye of this increased workloadat e. o r e 3 ent I is th Prothonotariesn th ensur intellectual property cases stick t a two yea schedul (for NOC proceedings) and 2- years for infringem actions, fromn initiation to completion. e e e o e n e I additio to managingt thes cases, Prothonotaries hav th authority t dismiss th proceedings summarily o th merits, taking into consideration factualn andentexper evidence. an t
I its rec e Strategic Ple (2014- 2019),e the FederalentCour has stated that: a t Th bulk of th Court’se e cas managem work is conductedt by its six prothonotaries. t at As resul entof the substantial increas in th Court’s workloade over the las decade, and the efac eth itse complem ent of prothonotaries has not increased, th Court’s ability to substantially1 expand th us of cas managem is constrained.
al 1 Feder Court Strategic Plan (2014 -2019), p. 9-10, available at http://cas-ncr-nter03.cas-satj.gc.ca/fct- cf/pdf/Strategic%20Plan%20(Final%20for%20posting%20with%20COA%20and%20accessibility)%20Engl ish.pdf (Accessed November 18, 2014). 2
e an
Th Strategic Pl also states that: e e ent Among• othere things, experienc has a demonstrated that cas managem assists to: • mov proceedings toward hearinge much more expeditiously; • narrow the numbere and natur of issues in • dispute;itate a substantiallyn reduc legal costs; • facile e mediatedt or other non-elitigious resolutio of disputes; and mak scarc Cour resources2 availabl to the nepublic for other matters. ittee an in e ent Anecdotally, o member of our comm observede increased delay gettinge procedurale in matters resolvedt after mandatory een case managem08 was implemented t for NOC Proceedings e and as th Court’s caseload at increased.e e Th increas yFederal Cour proceedingse betw e th 2007- and 2013- 14eCour years wastain22.5%. a 3 e Th numberentof dispositionse over th sam time a has increasedn b 55.8%. As the caseload of th Prothonotariese een increased, th delayentto ob cas anmanagem e conferenc in(CMC) a or schedule motioin aalso increased. Thos a delayst have sinc b resolved.e Case managem conferences c nowe b arrangedate with reasonabl in e time: with e week ore twot of requese being madean . If th number of Prothonotaries is reduced, w anticip greater delays th court’s iresponsn interlocutorytime. Th courmattcoulders/musotionsmore, involvingrather th pleadings,fewer Prothonotaries. discovery questions, costs, etc. b. e ent e ent e in Sinc the adv of cast managem bye aProthonotaries, th number a ofe motions entgeneral sittings has declined noticeably. e Prothonotaries ainoften deal with amatters n tha used to requir motion, e informally at case managem conference. Prothonotariestent often requir parties to expl the need ford motio prior toe its filing. anFurther, n th tProthonotaries e e hav e developed generally consis approaches to such motions, which also reduce their number as th parties c ofte predic th outcom of th motion. e e e Most of such interlocutory motions ar handled by Prothonotaries, freeing up judges to handl more substantiv motions, hearings of applications, and trials. al 2 Feder Court Strategic Plan (2014 -2019), p. 10. e 3 Statistics taken from the Annual Reports of the Courts Administration servic at http://cas-ncr-nter03.cas- satj.gc.ca/portal/page/portal/CAS/AR-RA_eng (Accessed November 18, 2014). 3
in mediation, to resolve cases earlier, without the need for cases to go to trial. e ten e t e c. e e e e Prothonotaries are of able tot resolv cases earlier, withou the needentfor trials. MediationsP helpe settle cases befor expensiv and timte consumingat trials, savingn th Federal Cour resourcese and money.n Ninety- fiv perc t (95%) of I ecases settl befor an trial, and Prothonotaries ata contribu at to th high resolutio rate. nProthonotaries at havt eformal mediation training and conduc many mor mediations th do judges. Our d reveals th two Prothonotariese conduct, o average an , leas aton mediatio per week. e n n a e Th Federalt in Court’s Strategice Pl states th “makingient greater nand timely us of mediatio and other dispute-resolutio tools” is high priority for th4 iCourn conductingfacilitating simplifiedth just, trialsexpeditious. and effic resolutioe of matters.t e e n it e d. e in Simplified trials ar trialse withou t liv5 witnesses (theye e ar based o affidav evidence). Prothonotariese hav thery sam authority at asa do judges running simplified a trials. Thesat a trialse las 1- dayse and ar th small to medium -sized trial flowe of th Federal C ourt. Eve day of trial th Prothonotary conducts is day of trial th judg does not have to conduct, freeing him or heritteeup for mor complex matters. e it in in Th Federal Courtse Rules 5 Comme e is consideringtant eincreasing ient th monetary e lim simplified actions , which would make the role of Prothonotaries conducting thes trials all th mor impor to th effic running of th Federale Court. e an
If thes responsibilities wer moved to judges, efficiency and specialization wouldThey lbeightenlost. the workload of judges. et t e e a e e 2. e e As s ou above, Prothonotaries ar responsibl for handling e significante portion of the procedural matters befor inth Federale Court, including cas management,e interlocutory motions and mediation.e Over th years, th Prothonotariesent have developedine special expertise thes areas which allows theme toe handlen suchn matterse with efficiencies that com withn experience. Movem t e of all thes efront -el responsibilities e to Judges will significantlyat increas th burd in o th Judges’e workload n for these tasks. I addition, Judges may noe b ablee to handl thes matters with th same efficiency th comes with experience t an ientdealing thes matters o a day to day basis. As a result, this will tak tim away from Judges for conducting final hearings and trials, which is no effic use of judicial resources.
al 4 Federal Court Strategic Plan (2014-2019), p. 6. 5 Feder Court Strategic Plan (2014-2019), p. 9. 4
They have control over their own schedules. e e e e 3. n e e Unlik judges, owho ar assignede to hearingent dates and locations by th court, th Prothonotaries control their ow schedules and, therefore, ar mor flexible andenaccessible e t conduct cas emanagem e teleconferences n witht lawyers. This ateflexibility is particularly beneficial during contentious discovery e examinationsent wh a cas managementat judg may b called upon, ot shor notice, to adjudic disagreements. nT he accessibility of Prothonotaries a for cas nmanagem duties tenmeans th ancases can movee forwardentfaster withou interlocutory matters getting boggedin tdow by limited accesse to decisione - maker. O the other hand, of judgest cn only do cas managem during breaks from or after their hearings court eand are therefore eless accessibl e for interlocutory matters. This is significan i instances of long trialsent spanning periods of several e weeks, if not months. A thos times,e th judge hearinge th trial esitting willenteither be inaccessible fore case managem responsibilities e during th trial, or, alternatively, will hav to schedul tim to deal with cas managem responsibilities during th trial, Ththerebyey areextending located thin majortrial. litigation centres across Canada. e e in a t 4. e in Federal Court judges ar required to resid Ottawe bue regularly travel to various cities for hearings. aUnlik judges, Prothonotaries live and workten Montreal, Ottawa, Torontoe eand Vancouver ande serv thes centrese of Federal Court litigation, whichnhas in number n of benefits. For example,e this of meanse Prothonotariesate ar mor readilyr availabl for hearings,n cas conferences or mediations in perso te their ow cities.e They e ar also locallyt aavailabl e to particip as speakers fo C ontinuing Legal eE ducatio programs e and other bar events to promo access to justice and th Federal a eCour as entvenu fore disputes. n This also provides membersn in of th e bare with som predictability as to which Prothonotary will b assigned e as entcas managem judge based o the geographical locatiot whiche th cas is commenced. Having Prothonotaries in various cities allows for th recruitm of talented peopl who, for whatever Threason,ey costdo less.no wish to mov themselves and/or their families to Ottawa. t e n 5. ent at a a a. Subjec to th implementatio e of Bill C -43,6 Prothonotaries’ salariese and retireme benefits are e7 6% th e of judge. Delegating work toe lowert paidtperson, to do the sam job (and, as explainede above, mor efficiently at , du to increasede practic with th tasks and availability) reduces th cos of cour operations. Thus, Prothonotaries provid better access to justice, a lower pric to taxpayers. ll d d t to t d 6 d Judges Act o t ’ Bi C-43, entitle “A secon t Ac implemen certain provisions of the budget table in Parliament on to Februarye Judges11, Act2014 an other measures”, includesd o a provision tooamend the s tha Prothonot aries compensation will be fixed lla 76% ofda judge’s t compensation (section 318 of Bill C- 43, adding section 10.1 th ). This provision will dbe deeme t havet come int force on April 1, 2012 (section 333 of Bill C- 43), once the bill passes. Bi C-43 ha its firs reading in the House of Commons on October 23, 2014, its second reading on November 3, an is currently a the committee stage. 5
e an e
Otherb. Becaus Courtsthey findtravel theirless equivalentsth judges, necessary.their travel expenses ar generally less. at t ia ta 6. e e in e Other provinces, including o leas Ontario, British Columb and Alber rely on Masters for cas management. Masters hav powers th superior courts of provinces Ontariosimilar t thosean of Prothonot t aries. e n ent h een In 1989, e bege phasingn aou Masters. I n 1996,. Ontario introduced e th new positio of Case eManagem e tantMaster e ,atwhic e has b entrecognized as inperforming th sam functio as “Traditional” in Master Members at of th Ontarioe bar andebench recogniz th impore role th Cas Manageme Masterst playe P avoiding procedurala n delay,7 and making decisionsent th inateaffect th final outcom of civil litigation. W would lik you (and th Federal Cour and th I bar) Britishto avoid Columbiarepetitio e of Ontario’se failed experim to inelim e Masters. n e e e ent e In t , thn rol of Masters was expanded th t2010 revisio to th Civil Rules. Th powers of Masters8 ar now defined in as equival to thos of Judges bu for certai e exceptionsin e , includingn a the conduc 9Case Planninge Conferences and setting tschedules entfor steps elitigation . Additionally, et n applicationse a which. ar with th jurisdictio of Master, including som forms of final order such10 as defaul or cons judgments, ar presumptively s dow befor AlbertaMaster e e a e in a e a e In litigants ear similarlye requirede a toebring emotions t befor Master if th mattertain is with Master’s. jurisdiction. As with BC, th powers of Master ar defined as being th11 sam as thos of Judg of th Cour of Queen’s bench, with cer the Unitedexceptions States ate e t t t e e In n a , Magistr Judges e of th Distric Cour conduc mediations, resolv atediscovery disputese and another motions, and perform cas managementnent duties. I paper published by th United States Federal Bar Association, Magistr Judges ar noted as integral and indispensable compo of the
e Law Times News 7 : Yamri Taddese, “Cas management masters decry salary discrepancy”, t (19 May 2014), t online
t in t e e e an ient e t in e federal Distric Courts, par becaus they provid th courts12 with effic Mjudicialisconceptionresourcs toaboutassis Prothonotaries:expediting th courts’ workload. Their decisions can be appealed as-of-right to a judge of the Federal 7. Court who has to re-hear their decisions resulting in a duplication of a. effort. a n e t e t in e True,e but only to very limited point. Based ao discussionsn ewith th Court, only Of abou 1-2% of their decisions% e ar appealed, mos only n part., Th ejudg hearing e such appeals woulde “re-hear ” onlyt portio of th original motion. those, only about 10-25 ar modified or overturned o appeal som of which ar reinstated bye th tenFederal Cour of Appeal.. e
Prothonotariese ’ decisions e ar of discretionary Judgess ar givingy e Prothonotaries’ n decisions. increasing deference.e This makes e appeals less attractiv because th Prothonotary’s discretionary decision will likel b sustained o appeal Prothonotaries ar often, therefore, th final decision Tmakershey requireof interlocutory more staffdecisions. than do judges. e e e ent . e e ent b. True,e du to the natur of theirh cas managem e work Theye hav casentmanagem in teams: en judicial assistants and dedicated e Registrars acting as cas management officers. Suc resources ar necessary for cas managem any event, ev if these in eresponsibilities P e wer transferred to judges. – in e
Lawyers th I bar ar heavy users of Prothonotaries som cases up to 50% of their workload. e t ne it t e e a e in – n – e e in e Using Prothonotaries, th Federal Cour has do righ with cas management. We hav stak keeping eve expanding th rol of Prothonotaries th Federal Court.
e al 12 al t Peter G McCabe, “A Guide to th Feder Magistrate Judge System: A White Paper Prepared at the Request of the Feder Bar Association” (Augus 2014), online at http://www.fedbar.org/PDFs/A-Guide-to-the- Federal-Magistrate-Judge-System.aspx. INTELLECTUAL PROPERTY INSTITUTE OF CANADA INSTITUT DE LA PROPRIETE INTELLECTUELLE DU CANADA
December 15, 2014 IPIC The Professional Association Concerned with Patents, The Honourable Peter G. MacKay Trade-marks, Copyright and Minister of Justice and Attorney General of Canada
Industrial Designs Ottawa, Ontario
L'association professionnelle
en matiere de brevets, Dear Minister MacKay,
de marques de commerce, I am writing on behalf of the Intellectual Property Institute of Canada (IPIC), the de droits d'auteur et professional association of trademark agents, patent agents and lawyers practicing in
de dessins industriels all areas of intellectual property law. Our membership totals over 1,700 individuals, consisting of practitioners in law firms and agencies of all sizes, sole practitioners, in house corporate intellectual property professionals, government personnel, and academics. Our members' clients include virtually all Canadian businesses, universities and other institutions that have an interest in intellectual property in Canada or elsewhere, and also foreign companies who hold intellectual property rights in Canada.
I write in relation to the attached letter from members of the Intellectual Property bar and the meeting scheduled on Wednesday, December 17, 2014 with Carl Dholandas and representatives of the Department of Justice, in response to the attached letter. IPIC Vice-President Peter Wilcox will attend the meeting by telephone.
IPIC believes the governmentshould maintain prothonotaries in the Federal Court. IPIC is currently preparing a formalwritten submission in support of maintaining prothonotaries in the Federal Court, which it intends to submit shortly after the meeting.
Yours truly,
David Schwartz 60 Queen Street, Suite 606 President Ottawa, Ontario Kl P 5Y7 Canada
60, rue Queen, bureau 606 Ottawa (Ontario) cc. Mr. Carl Dholandas, Judicial Affairs Advisor - [email protected] K1P 5Y7 Canada
C 613-234-0516 !I. 613-234-0671
WWW. ipic. ca