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

7 minute read
17 June 2020


Updated on June 14, 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 June 14, 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. 

Federal Court

The Federal Court previously adjourned sine die all hearings scheduled through May 29, 2020, with the exception of exceptional or urgent matters, and select other matters which the Court determined could be adjudicated by teleconference, videoconference or in writing. General Sittings were cancelled during this period as well.

On June 11, 2020, the Federal Court extended the suspension period past May 29, 2020, but set different end dates for the suspension period for different regions:

  • In Ontario and Quebec, the suspension period is extended until June 29, 2020, and General Sittings remain cancelled until July 26, 2020.
  • In the four Western provinces and the four Atlantic provinces, the suspension period is extended until June 15, 2020, and General Sittings remain cancelled until July 12, 2020.

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 until June 29, 2020 for all provinces. After June 29, 2020, timelines for the filing of documents and the taking of other procedural steps will be extended by 14 days to July 13, 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.

Federal Court of Appeal

Similar to the Federal Court, the Federal Court of Appeal also previously adjourned all hearings sine die through to May 28, 2020, with the exception of exceptional or urgent matters, and select other matters which the Court determined could be adjudicated by teleconference, videoconference or in writing. 

On June 11, 2020, the Federal Court of Appeal extended the suspension period indefinitely for all files, except for certain "Selected Files" designated by the Court, and files already released from the suspension period.  On June 22, 2020, the Selected Files will be listed on the Court's website, and new Selected Files will be added to the list every subsequent Monday.  The suspension period for a Selected File will end on the first Monday after the date the Selected File appears on the Court's list.  A party may bring a motion in writing to have a file designated or de-designated as a Selected File.

Timelines under the Rules or under any direction or Court order continue to be suspended indefinitely, except for Selected Files, in respect of which timelines will begin to run again starting the day after the Monday on which the Selected File is designated.  Other Court rules, such as those relating to the filing of appeal books and proof of service, also apply to Selected Files once designated.

The Federal Court of Appeal is continuing to accommodate filing via electronic means, expanded forms of electronic service, and remotely sworn affidavits.  All hearings will continue to proceed by online videoconference, teleconference or in writing. 

Supreme Court of Canada

The Supreme Court of Canada (SCC) is also continuing to take 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 May 29, 2020, the Court updated the list of appeals that would be heard in June 2020, to take place by videoconference; on June 3, 2020 the Court provided livestream details for these appeals so that they may be attended by members of the public.

All other adjourned hearings in the SCC 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.

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.