Update: The Federal Court updated the Guidelines on May 18, 2021, which can be found here.
The Federal Court has released a new consolidated practice direction, Case and Trial Management Guidelines for Complex Proceedings. The Guidelines apply to complex proceedings or those expected to require five or more trial days, with additional rules for actions under the Patented Medicines (NOC) Regulations (PMNOC actions). The Guidelines consolidate the following existing practice directions and guidelines, which remain on the Federal Court’s website:
- Guidelines for Actions under the Amended PMNOC Regulations (Sept 2017)
- Trial Management Guidelines (April 2017)
- Experimental Testing (May 2016)
- Case Management: Increased Proportionality in Complex Litigation Before the Federal Court (June 2015)
The following points highlight some of the new or changed items in the Guidelines.
For All Complex Proceedings:
- Electronic productions: Perhaps informed by the pandemic, the Guidelines encourage parties to proceed electronically with documents and discuss options like searchable documents, file naming conventions, and litigation support software.
- Discovery: There will be early discussion of discovery, including inventor discovery, with the Court, and missed deadlines may result in significant cost consequences. Parties may not agree to exceed limits on lengths of oral discovery without a Court order.
- Experts: Counsel are expected to consult experts early in the pre-trial stage to assess the merits of the case, and provide early notice of the experts’ views with opposing counsel. With the help of experts, parties are now required to make efforts to agree on points of fact and law, including “interpretation/construction of science”. Consistent with the Code of Conduct for Expert Witnesses, expert reports must state where experts agree and disagree, with reasons for any disagreement.
- Trial: Parties must make a bona fide effort to prepare a joint statement of issues before trial. Scientific primers may be required, and the Guidelines encourage parties to be proactive in identifying circumstances when such primers would be helpful. Parties are encouraged to exchange evidence using USB keys and hyperlink all references to case law, and may take advantage of a newly-noted option to have out-of-town witnesses appear by video if advance notice is given.
For PMNOC actions:
While the whole Guidelines apply to PMNOC actions, the items in the Guidelines specific to PMNOC actions take precedence over any conflicting items. The specific items include:
- Checklist: The Guidelines specify that the Court’s practice of requiring a checklist of procedural steps be addressed at the initial case management conference.
- Case management conferences: A case management conference should be requested before bringing a motion, and regular conferences will be convened to discuss the timetable and narrowing of issues for trial.
- Evidence at trial: Evidence-in-chief must be adduced by way of affidavit, unless varied by the Court prior to trial.
Should you have any questions, please do not hesitate to contact a member of the Pharmaceutical Litigation group.
The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.