December 1, 2024

(Disponible uniquement en anglais)

Welcome and Approvals

Introductory Remarks

The CJ and ACJ welcomed committee members to the meeting. The CJ explained that the purpose of the committee was to share information and ideas, discuss issues that interest both the bench and the bar and explore solutions. She is hopeful that these meetings will provide a safe space for fruitful exchanges.

Review of Proposed Agenda

There were no objections to the proposed agenda.

Approval of Minutes of November 26, 2023, Meeting

Approval pending.

Members need to verify whether the comments of the TCC on the minutes of the November 26, 2023, meeting were incorporated in the minutes before approval.

What’s New at the TCC

Current Operations

There have been a number of significant changes at the TCC since the last meeting:

• ACJ Pelletier was appointed ACJ in December 2023.
• CJ Rossiter stepped down as Chief Justice and became a supernumerary judge in June 2024.
• CJ St-Hilaire was appointed CJ in June 2024.
• Retirements:
  • Justice Owen (May 2024)
  • Justice D’Arcy (May 2024)
  • Justice Pizzitelli (September 2024)
  • Justice Sommerfeldt (October 2024)
  • Justice Boyle (October 2024)
  • Deputy Judge Jorré (October 2024)
• Appointments:
  • Justice Bodie (December 2023)
  • Justice Cook (December 2023)
  • Justice Ezri (May 2024)
  • Justice Goldbach (October 2024)
  • Justice Derksen (October 2024)
  • Associate Judge Matte (April 2024)
• Approximately 40% change in the judges of the TCC since 2018.
• There have been changes to the staff at the TCC:
  • Louis-Alexandre Guay is now Executive Director & Legal Counsel.
  • Diane Trif is now Executive Legal Counsel and is currently on parental leave.
  • Stéphanie Lauriault is acting Executive Legal Counsel.
  • The previous Registrar Don MacNeil retired.
  • Michelle Wilson joined as the new Registrar.

Since June 2024, the CJ and ACJ have been working closely together, trying to better understand the landscape and taking the pulse of the organization. They have, to this end, met will all the judges, and with various internal and external stakeholders (e.g., Canadian Tax Foundation, Canadian Bar Association, Barreau du Québec, Courts Administration Service, judicial committees, etc.) They have also met staff in Ottawa, Toronto, and Vancouver to gather views on the operations of the TCC. The CJ and ACJ are also fostering relations with their counterparts in the other federal courts, and other Canadian courts, to better understand common challenges and discuss best practices.

Some of the challenges faced by the TCC include:

• Delays in scheduling hearings.
• The need for digitalization and modernisation.
• Explosion in the number of documents that the Registry receives from parties. Over the last 5 years, there has been a 125% increase in the number of documents the Registry receives and processes This is on top of the documents that the TCC asks the Registry to create internally for the court. This has led to increasing delays in the processing of documents.

The TCC is committed to addressing these operational issues.

Measures have already been taken to accelerate the processing of certain documents. The Registry is now required to send any documents for files that are case-managed or under reserve to the appropriate judge within 48 hours of the documents arriving in the Registry.

However, achieving these objectives will be more difficult given the significant budgetary constraints affecting Courts Administration Service and the four federal courts, due in part to underfunding of obligations under the Official Languages Act and the ending of funding for certain Federal Court files. The lack of funding affects all four federal courts because they share one overall budget.

Vacancies

The significant number of retirements has resulted in a loss of a wealth of experience which is rapidly being offset by the new appointees who bring their own experience and expertise to the TCC.

However, there are five puisne judge vacancies and one associate judge vacancy remaining. There is also a need for bilingual judges. This continues to have a significant impact on scheduling.

Statistics and Trends

With respect to statistics and trends:

• The inventory of General Procedure cases has increased (from 55% in the 2018-2019 fiscal year to 67% currently in 2024), while the inventory of Informal Procedure cases has decreased (from 45% in 2018-2019 to 33% currently). This impacts the scheduling of hearings.
• The share of General Procedure files in Ontario (mainly Toronto) and Alberta compared to other locations has increased over the last 12-18 months.
• The number of applications for extensions of time has been decreasing but is still higher than historical averages.
• A cursory look at the docket reveals that trials are generally running longer. The court has many trials of 4-7 weeks, and in one case has a trial scheduled for 19-20 weeks. This causes scheduling delays. The court will be looking into its data to see whether trials are indeed running longer.

Regional Matters and issues

With respect to regional matters and issues:

• TCC facilities across Canada are undergoing changes:
  • Montréal: A newly built federal judicial complex is expected to be ready for occupation by March 2027.
  • Ottawa: An expansion of 200 Kent Street in Ottawa will start in spring 2025 and take 2.5 years to complete. It will include two new modern courtrooms that have technology upgrades, and two studio courtrooms, which will give extra capacity for virtual hearings
  • Southern Ontario: The lease tender process for a permanent location is being finalized and a new building will be selected to house two courtrooms. It is expected to be ready by Spring / Summer 2026. The TCC will still use hotels in Oakville/Hamilton for the next year or so.
  • Victoria: A new facility is expected to be ready with one courtroom. No firm timeline but the target date is April 2026. There has been some difficulty in finding court facilities in the meantime.
  • Toronto: The TCC is working on a plan for modernization and expansion, which will give the Court additional courtrooms, new studio courtrooms and increasing settlement conference space. The hope is for this to be completed in Spring 2028 but timelines on major projects can always change.
  • Other projects include Winnipeg and Halifax.

Courts Administration Service (CAS)

CAS Update

CAS is facing significant financial challenges and is in a critical situation. The current situation is impacting court operations leading to increased delays and backlogs.

Based on announcements made in Budget 2024, CAS will have to take action to address significant deficits for the next several years, as funding has not kept pace with its obligations.

CAS has not received the funding it requested, funding for Asylum cases sunsetted and a new collective agreement covering lawyers who work for CAS resulted in an unanticipated $2M deficit

CAS is piloting AI for translation and has modest funding to invest in digital courts. CAS is using mock courtrooms including the IT infrastructure and physical layout before rolling out full E-Courtrooms across the country. A Digital strategy for the four courts is at the “drafting” stage.

CAS received only partial (25%) and temporary (3 years) funding for compliance with the Official Languages Act and it is not possible with limited funding and new legal obligations to translate all decisions in a timely manner. Translation priority goes to decisions that are nationally important or have precedential value.

This fiscal year: CAS cannot conduct business as usual.

• There is a spending freeze and staffing freeze.
• Balancing the budget will require other funding coming in or very deep cuts.
• There is a backlog of about 1,800 “level 2 priority” decisions waiting for translation for the four federal courts, with the backlog expected to increase to 2,400 by the end of March 2025.

TCC Rules Committee

Rules Committee Update

The TCC Rules Committee has not met since October 2023. At that last meeting, changes were approved but have not been implemented yet. The next meeting is being planned for spring 2025.

Issues raised by the Department of Justice Canada (DoJ)

DoJ indicated that Daniel Bourgeois was retiring in December 2024 and thanked him for his role on the committee.

DoJ raised the following issues:

• Access to the TCC calendar: Currently, the TCC hearings calendar only shows hearings scheduled for the current month, past month, and next month. Being able to see hearings 60 days from the current date would allow for a more timely assignment of lawyers and workload assignment.
  • The CJ indicated that the court aims to provide 90 days’ notice before an Informal Procedure hearing date, but that does not always happen because of backfilling of hearings when a matter settles, is adjourned, or is discontinued.
  • DoJ recommended that the electronic calendar allow for 60 days (i.e., next 2 months). DoJ indicated that in previous years, the calendar displayed 90 days ahead (i.e., the next 3 months).
  • CJ said the TCC will look into whether calendar listings can be increased but wants to gain a better understanding of why broader access was removed in the past.

Issues Raised by the Canadian Bar Association (CBA)

The CBA raised the following issues:

• The delays in the scheduling of hearings, communicating trial dates and how far trials can be booked in advance:
  • The ACJ said the TCC’s goal is to schedule hearings one year in advance and this goal is not being met. Currently, hearings are being set for the second half of 2025. The TCC is aiming to be scheduling hearings one year in advance by spring 2025.
  • The limited number of judges results in limited sittings. With a full complement of judges, the TCC could easily schedule about 100 more weeks of sittings. 
  • We have asked the Judicial Administrator to release unused dates more quickly.
  • We ask parties filing their joint application for hearing to offer two dates during the 6-month period that follows their joint application, and a third date during the subsequent 6-month period. We also ask parties to be in touch with their Hearings Coordinator to find out when the court is scheduling hearings. Parties have the option to request a different hearing location, however the issue is not the availability of courtrooms but the shortfall of judges.
  • CBA member enquired about the feasibility of writing to the court if parties are willing to have a hearing on short notice and about whether the TCC can post last-minute dates that are available. CJ said there are many issues to consider beyond the number of days required for proper notice (language of the witnesses  and documents, availability of justices, conflicts, etc.). CJ suggested that parties tell their Hearings Coordinator if they have a file that can go ahead on short notice.
  • CBA member also raised the possibility of using an “online booking” system for hearing dates. The ACJ said online booking is not available in the current system. The TCC wants to see online booking features in its future court management system.
  • In the meantime, the TCC is looking into automating certain aspects of the joint application process, which is currently paper-based. The BC Supreme Court has launched a platform for online booking and the TCC is hoping to meet with counterparts at that court to learn more.
• TCC policy of not providing the name of the trial judge or settlement conference judge ahead of the hearing date:
  • CBA member understands that the policy was put in place to prevent judge shopping. CJ said the TCC is open to reviewing the policy and asked for views on how to limit the risk of judge shopping. Suggestions included only releasing the judge’s identity shortly before the hearing, and to make clear that even if the matter is adjourned, the judge could remain the same. CBA members (including DoJ) said they were unaware of any problems with judge shopping.
  • CBA member stated that one of the reasons parties need to know the name of the judge in advance is to prevent conflicts of interest and conflicts with witnesses. These conflicts could be avoided early as opposed to requesting an adjournment the morning of a trial.
  • CJ said the court will look into resuming the practice of releasing the judge’s identity and will then monitor to see if judge shopping or other issues arise.
• Modernization of electronic document processes:
  • CBA member asked if the TCC is changing its practices on electronic signatures. For example, would the TCC update Practice Note 26 to align its practices with other courts? The TCC may review Practice Note 26 as part of a general review of the Court’s practice notes and directions.
  • The ACJ indicated that there is a pilot on electronic payment of fees in the Federal Court and if successful, it could be adopted by the TCC.
  • Electronic documents: the TCC would like to give access to pleadings and publicly available electronic records as there are lots of requests for this, but there is no way to do this now with the court’s current IT capacity. This is something the court wants in its new court records system.
  • The TCC is ready to pilot its e-trial toolkit. This is an electronic evidence management tool to be used at electronic trials. Judges and the Registry will receive training on these tools. This will only be available in courtrooms that have the necessary technology (Vancouver, Calgary, Quebec City, Toronto).
• Court Directives and Practice Directions:
  • The TCC rescinded a directive on extensions for reply deadlines. The CJ indicated that should there be issues regarding reply extensions, these would be dealt with by amending the rules, or by case management. DoJ indicated that there were only 26 appeals where replies were filed 120 days after the notice of appeal, and added that there were circumstances explaining most of the delays that were not attributable to the Crown.
  • The CBA requested that the TCC consider a consolidated practice direction like the Federal Court as some of the practice directions are outdated and need to be cleaned up and made more user-friendly.
  • The TCC wants to take stock of existing practice directions, and will then look at whether directions should be consolidated or issued as a series.
  • Practice Note on settlement conferences: the TCC will look at whether the conditions listed therein, which are not in the TCC Rules, are necessary.
  • CBA member raised that, in some cases, both parties want a settlement conference, but it is denied because settlement offers from each side have not been exchanged. CJ said it would be helpful to have a more extensive discussion about the rationale for allocating judicial resources to settlement conferences when offers have not been exchanged.
• Mandatory electronic service:
  • A CBA member enquired about whether electronic service could be made mandatory.
  • CJ said that in October 2023, the Rules Committee approved an amendment to Rule 39 regarding electronic service that allows such service if a party’s email is included in originating documents such as a notice of appeal or reply. The next step is to publish the amendment in the Canada Gazette.
  • DoJ said electronic service is very helpful. The concern is that DoJ lawyers cannot bring their phones when they are out of the country, so DoJ would like to find a solution that will enable electronic service, such as a generic email address for service for each DoJ office. A CBA member noted that Revenu Quebec has a generic email address for service.
  • A CBA member indicated that the certificate of service could be provided electronically by the TCC instead of by registered mail, which would save costs. This may require a change to the rules.
• Case Management Processes:
  • A CBA member enquired about whether the TCC can have mandatory case management, perhaps for files above a specific monetary threshold. The CJ said the TCC in fact often sees a need for case management in files with lower monetary thresholds.
  • The TCC does not have the resources to proceed with mandatory case management, nor does it necessarily see a need to do so. The court needs the parties to provide more information and justification in support of their case management requests. The court often sees files where only one party wants case management and/or unsupported requests.
  • The CJ said that what parties often need is trial management, rather than case management.

Other business

The ACJ said the TCC has worked on template orders (such as scheduling orders, timetable orders, and consents to judgment) so that all such orders have the same look and feel. The language used has also been simplified, to the extent possible.

The ACJ requested views on reintroducing motion days in Montreal, Vancouver, and Toronto. These were stopped at the start of the pandemic. Having motion days may free up regular sittings.

Next meeting

To be held during the first week of June 2025 in Ottawa, with a tentative date of Friday, June 6, 2025.