On April 29, 2020, the Federal Court (FC) published a Practice Direction and Order (FC Update) extending its Suspension Period until May 29, 2020 and adjourning hearings until June 29, 2020—subject to certain exceptions. During this time, the Court has made provisions to hold certain hearings by phone or Zoom videoconference.

The FC Update is an amendment to its previous Updated Practice Direction and Order dated April 4, 2020, which we discuss here and otherwise remains in force.

Extension of Suspension Period & other measures

The FC Update introduces three main changes to procedural timelines:

  1. The Suspension Period—which was set to expire on May 15, 2020—has been extended to May 29, 2020.
  2. All hearings scheduled to take place between May 16, 2020 and June 28, 2020 are adjourned sine die. The Court will not hold hearings until June 29, 2020.
  3. The timeline to file documents and for other procedural steps is extended by 14 days following the end of the Suspension Period.

All of these changes are subject to certain exceptions outlined in the FC Update.

The Exceptions

The FC Update contains a revised and expanded set of exceptions to the timing changes above:

  • Urgent and exceptional cases: the FC confirms that its April 4, 2020 Order remains in effect for urgent or exceptional matters, which will continue to be heard by teleconference or videoconference. The FC will determine which matters are considered "urgent" or "exceptional" on a case-by-case basis.
  • By request: parties who wish to have a hearing proceed by teleconference or videoconference may submit a request to the FC, which will assess the requests on a case-by-case basis.
  • Case-management hearings: the FC will continue to manage cases and issue directions and orders when appropriate. The 14-day extension period for procedural steps does not apply to files being case managed by Prothonotaries.
  • Adjudication in writing: the FC will continue to adjudicate motions in writing. The FC encourages parties to consent to proceed in writing with respect to matters that would otherwise have proceeded in person, or by teleconference or videoconference, by filing a request using the FC's e-filing portal.
  • At the FC's initiative: the FC has identified matters that are ready to proceed, or are close to being ready to proceed. The FC will be reaching out to the parties to schedule these matters for hearing by teleconference or videoconference.

For cases to be adjudicated during the Suspension Period, parties will generally be required to exchange and file electronic copies of materials required for the case to be determined.

Hearings proceeding by videoconference will be conducted over Zoom. The FC will be posting a document on its website explaining how such hearings will be approached.

Consent

The FC notes that consent of all parties may not be required for the listed exceptions, except for certain requests to have the case adjudicated in writing.

Rescheduling

For hearings that have been adjourned pursuant to the Suspension Period, parties are expected to provide the FC with their mutual dates of non-availability up to December 18, 2020. These dates are to be provided no earlier than May 15, 2020 and no later than June 12, 2020 (as opposed to May 1, 2020 and May 29, 2020 pursuant to the April 4, 2020 Order). The FC will later determine the manner in which the hearing will be held (in person, videoconference or teleconference). The FC will make this decision based on a set of factors, such as the parties' requests as well as the nature of ongoing restrictions in place in the area where the case is to be heard.

Litigants should consult with their counsel to understand how the FC Update might impact their cases and ensure that they navigate these changes appropriately.

Thank you to Caroline Henrie and Christopher A. Guerreiro for their help in drafting this article.

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Originally published 30 April 2020

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