Canadian IP Courts' updated responses to COVID-19 concerns

This article was previously titled Canadian IP Courts respond to COVID-19 concerns by limiting hearings

18 March 2020

Updated on April 30, 2020

Since the unfolding of the COVID-19 situation, courts across Canada have drastically reduced their operations. Courts are now making ongoing changes to their practices and procedures to adapt to the evolving situation and facilitate better access to justice, including increased availability of judicial officers to hear matters remotely and move matters forward.  This updated article summarizes the latest changes in the Federal Courts and Supreme Court of Canada as of April 30, 2020.

Gowling WLG's national IP Litigation team is committed and technologically equipped to quickly adapt to these rapid and significant changes. We are closely monitoring all announcements by the courts across the country, in particular, the Federal Court, where most IP matters are heard. If you have a matter before the Federal Court, these are the important points to know:

On April 4, 2020, the Federal Court confirmed all hearings scheduled through until May 15, 2020 were adjourned, except for exceptional or urgent matters.  As of April 29, 2020, the Court has now extended this suspension period to May 29, 2020, but is also expanding the range of matters it is prepared to adjudicate by teleconference, videoconference, or in writing during this period.  

Beyond May 29, the Court has adjourned sine die all scheduled matters and cancelled all General Sittings through to June 28, 2020.  Urgent or exceptional matters will continue to be heard during this period, as well as case management hearings and matters that parties request on consent to be heard by teleconference, videoconference, or in writing, which will be evaluated on a case-by-case basis.  The Court will also identify matters it considers ready to proceed or close to ready to proceed, and will begin reaching out to parties to discuss scheduling these matters by videoconference or teleconference.  It may be possible to move some of these matters forward even where the other side does not consent. 

The running of all timelines under Orders and Directions of the Court made prior to March 18, 2020, as well as under the Federal Courts Rules, and subsection 18.1(2) of the Federal Courts Act are suspended for the period of March 17 through to May 29. After May 29, 2020, timelines for the filing of documents and the taking of other procedural steps will be extended by 14 days to June 12, 2020.  This latter extension of time does not apply to files that are case managed; in those cases, the deadlines prescribed by the Court’s Case Management Judges in issued Orders and Directions will govern.  All other statutory deadlines continue to apply.

During the closure period, the Court will continue to accept materials for filing via electronic means. There is also expanded ability to electronically serve documents. All affidavits must still be sworn/affirmed, but the Court will accept affidavits sworn/affirmed remotely using modes deemed acceptable by any provincial Superior Court.

The Court strongly recommends that parties, their counsel, members of the media and the general public refrain from attending to its facilities across the country.

The Court strongly encourages counsel and parties to make a concerted effort to settle their dispute, and, if they are not successful, to cooperate in identifying new dates for hearings or other matters that have been adjourned or postponed.

More information on the Federal Court's approach to the pandemic is available here.

As of April 2, 2020, the Federal Court of Appeal adjourned all hearings through to May 15, 2020, with the exception of urgent matters, to be heard by teleconference. As of April 15, 2020, the Court has begun exempting some cases from the general adjournment, including non-urgent matters, in order to allow them to progress towards a determination on the merits.  Cases selected to proceed and that are ready for determination (i.e. all procedural steps have been completed) will proceed in writing or by teleconference or videoconference.  For cases selected to proceed where there remain procedural steps to be completed, the Court will reach out to terminate the suspension period as of a certain date.  As of April 2, 2020, parties may also request on consent to have their matter heard remotely or on the basis of the paper record, regardless of whether the matter had been previously scheduled or is selected by the Court to proceed. Parties must contact the Judicial Administrator should they wish to so proceed.

Similar to the Federal Court, the Federal Court of Appeal is accommodating filing via electronic means, expanded forms of electronic service, and remotely sworn affidavits. In addition, for the purposes of the calculating of time under the Rules or under any direction or court order, the period March 16, 2020 to May 15, 2020 inclusive shall not be included in the calculation of time. In other words, time will not run during the period of March 16 - May 15, inclusive.  More information on the Federal Court of Appeal's approach to the pandemic is available here.

The Supreme Court of Canada (SCC) is also taking precautionary measures. As of March 25, 2020, cases previously scheduled for hearing in March, April and May were adjourned, tentatively, until the month of June 2020.  On April 29, 2020, the Court announced the list of appeals that would be heard in June 2020, to take place by videoconference; all other adjourned hearings will be heard in the regional fall session, which will begin the week of October 5, 2020.  Court documents must be filed by email, whether originating or otherwise.

Should you be concerned about matters before any of the above Courts or any Provincial Courts, or have any concerns about how any of the Courts' precautionary measures may affect your IP rights or business in Canada, please contact your Gowling WLG professional. Our IP Team remains fully available to address your needs and are taking all measures to ensure your IP rights and businesses are protected and defended throughout these extraordinary circumstances. We will continue to keep you informed as further developments arise.

For other COVID-19 related resources, please visit our resource hub with information to help you manage your business during the pandemic. The hub contains critical information to guide you through various complex legal issues, as well as a list of key contacts who can provide advice on these issues.

In response to COVID-19, many Canadian courts have drastically reduced their operations. Visit our Canada-wide summary of court closures page to learn more about these changes.

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.