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Federal Court II

. Coote v. Canada (Human Rights Commission)

In Coote v. Canada (Human Rights Commission) (Fed CA, 2021) the Federal Court of Appeal considered it's inherent authority to dismiss an appeal:
[16] In addition to the authority conferred by rule 74, the Court has jurisdiction to manage and regulate particular proceedings before it and, where appropriate, summarily dismiss an appeal by using its broad plenary powers. These powers have frequently been used, for example, to reject proceedings that are, among other things, frivolous or an abuse of the process of the Court (Fabrikant v. Canada, 2018 FCA 171, at para. 3). Recently, in Dugré v. Canada (Attorney General), 2021 FCA 8, the Court had this to say on the origin and underlying principles of its plenary powers:
[19] This Court has jurisdiction to summarily dismiss an appeal. Although the Federal Courts Rules, SOR/98-106 (the Rules) do not contain any specific provision allowing for the summary dismissal of an appeal, the Court has exercised this jurisdiction for decades (David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., 1994 CanLII 3529 (FCA), [1995] 1 F.C. 588 (C.A.), at page 600).

[20] This power stems from the Court’s plenary jurisdiction (Canada (National Revenue) v. RBC Life Insurance Company, 2013 FCA 50, 443 N.R. 378, at para. 36; Lee v. Canada (Correctional Service), 2017 FCA 228 [Lee], at para. 6). This Court has not only the powers conferred by statute but also the powers necessary for its effective functioning (Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626, 224 N.R. 241; Lee, at paras. 2, 7-15; Fabrikant v. Canada, 2018 FCA 171, at para. 3 and the cases cited therein). As the Court explains in Lee, the Federal Courts, as part of the judicial branch of the government, must have the powers necessary to manage their own proceedings (Lee, at para. 8).

[21] This power also manifests itself in the Rules through the combined effect of Rule 74 (removal of proceedings brought without jurisdiction), Rule 4 (the gap rule) and Rule 55 (power to vary a rule, in this case Rule 74, in “special circumstances”).
. ViiV Healthcare Company v. Gilead Sciences Canada, Inc.

In ViiV Healthcare Company v. Gilead Sciences Canada, Inc. (Fed CA, 2021) the Federal Court of Appeal engaged in a prolonged discussion of summary judgment (also called Summary Trial', under the federal rules) at paras 12-42.

. Alberta (Attorney General) v. British Columbia (Attorney General)

In Alberta (Attorney General) v. British Columbia (Attorney General) (Fed CA, 2021) the Federal Court of Appeal considered a rare intergovernmental (province-to-province) dispute, where BC sued Alberta and there were suggestions of raw politics afoot (quoting from the minority ruling):
[3] In the legislative debates leading to the passage of the Act, members of the Alberta legislature made statements suggesting that the Act’s true purpose was political retaliation. That is, the Act would allow Alberta to restrict the flow of natural resources to British Columbia as a response to the latter’s opposition to the Trans Mountain pipeline expansion. ...

[4] On May 1, 2019, the Attorney General of British Columbia (BC) commenced an action before the Alberta Court of Queen’s Bench (the Alberta Court) seeking a declaration of invalidity in respect of the Act. Alberta responded to BC’s action by filing a motion to dismiss it on the grounds that the Alberta Court had no jurisdiction to entertain the proceedings and that BC lacked standing to bring its action.

[5] Pending the resolution of the above issue, BC commenced an action, pursuant to section 19 of the Federal Courts Act, R.S.C. 1985, c. F-7 (the FCA) in the Federal Court on June 14, 2019, in which it sought a declaration that the Act was unconstitutional. ....
The case focussed on this provision of the Federal Court Rules:
Intergovernmental disputes

19 If the legislature of a province has passed an Act agreeing that the Federal Court, the Federal Court of Canada or the Exchequer Court of Canada has jurisdiction in cases of controversies between Canada and that province, or between that province and any other province or provinces that have passed a like Act, the Federal Court has jurisdiction to determine the controversies.
Quoting from the majority ruling, the case sets out the range of cases that FCA s.19 is meant to address (more than solely Crown rights disputes) - and the fact that Alberta did not dispute that the Federal Court had such jurisdiction per se (the ITO test). The majority reached this first conclusion by reviewing the provision in light of principles of statutory interpretation [paras 115-168].

. Canmar Foods Ltd. v. TA Foods Ltd.

In Canmar Foods Ltd. v. TA Foods Ltd. (Fed CA, 2021) the Federal Court of Appeal considered an appeal from a federal rules summary judgment (patent infringment) on the grounds that it took place before discovery:
[23] In recognition of the fact that summary judgment motions are an important tool for enhancing access to justice, most provinces have adopted rules of civil procedure to provide for such a mechanism with a view to ensure a fair balance between expediency and a just resolution of disputes. These rules, according to the Supreme Court, must be interpreted broadly so as to promote affordable, timely and just adjudication of civil claims: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 5 [Hryniak]. The rationale and goal of summary judgments have been well summarized in the following citation:
…The summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and costs on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial.

Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372 at para. 10 [Lameman].
[24] At the federal level, Rule 215 of the Federal Courts Rules, SOR/98-106 (the Rules) requires the Court to grant summary judgment if it is satisfied that there is "“no genuine issue for trial”" with respect to a claim or defence. A motion for summary judgment may be brought "“at any time after the defendant has filed a defence”", but "“before the time and place for trial have been fixed”" (Rule 213). The test is not whether a party cannot possibly succeed at trial, but rather whether the case is clearly without foundation, or is so doubtful that it does not deserve consideration by the trier of fact at a future trial. There does not appear to be any definitive or determinative formulation of the test, but the underlying rationale is clear: a case ought not to proceed to trial, with all the consequences that would follow for the parties and the costs involved for the administration of justice, unless there is a genuine issue that can only be resolved through the full apparatus of a trial. See: Premakumaran v. Canada, 2006 FCA 213, [2007] 2 F.C.R. 191 at para. 8; Feoso Oil Ltd. v. Sarla (The), 1995 CanLII 3605 (FCA), [1995] 3 F.C. 68 (C.A.) at para. 13 [Feoso Oil]; Garford Pty Ltd. v. Dywidag Systems International, Canada, Ltd., 2010 FC 996, 375 F.T.R. 38 at para. 2 [Garford Pty], aff’d 2012 FCA 48. This should obviously translate into a heavy burden on the moving party.


[26] There is no doubt that the timing of the motion for summary judgment was, strictly speaking, in conformity with Rule 213 of the Rules. It was brought after the respondent’s Statement of Defence was filed, but before a time and place for trial were fixed. Whether or not discovery had taken place at this stage is not a factor contemplated by Rule 213, and ought not to be regarded as such.

[27] The legal burden to establish that there is no genuine issue for trial clearly falls on the moving party. That being said, once the moving party has discharged its burden, the evidentiary burden falls on the responding party, who cannot rest on its pleadings and must come up with specific facts showing that there is a genuine issue for trial: Cabral v. Canada (Citizenship and Immigration), 2018 FCA 4, [2018] F.C.J. No. 21 at para. 23. As the Federal Court stated in Watson v. Canada (Indian and Northern Affairs), 2017 FC 321 at paragraph 22, "“[w]hile the burden falls on the moving party, both parties must put their best foot forward”". See also: Lameman at para. 11; Feoso Oil at paras. 13-14; Garford Pty at para. 6.
. McCain Foods Limited v. J.R. Simplot Company

In McCain Foods Limited v. J.R. Simplot Company (Fed CA, 2021) the Federal Court of Appeal considered whether to grant leave to make a third party claim (under the federal rules):
[25] Rules 193 and 194 of the Rules contemplate third party claims. The question of whether leave should be granted to commence a third party claim is based on the same factors as are relevant to whether a pleadings amendment should be allowed to introduce a new cause of action: Alberta v. Canada, 2018 FCA 83, 425 D.L.R. (4th) 366 at para. 20. As with the pleadings amendments in this case, the viability of the third party claim turns on whether it has a reasonable prospect of success.

[26] A third party claim must stand on its own as an independent proceeding, separate from the main action and not merely incidental to it: R. v. Thomas Fuller Construction Co. (1958) Ltd., 1979 CanLII 187 (SCC), [1980] 1 S.C.R. 695, 106 D.L.R. (3d) 193 at 709 (Thomas Fuller); 744185 Ontario Inc. v. Canada, 2020 FCA 1, 441 D.L.R. (4th) 564 at para. 32 (Air Muskoka). That said, regard may be had to the main action if it assists in determining what is in issue in the related third party claim: Canada (Attorney General) v. Gottfriedson, 2014 FCA 55, 456 N.R. 391 at para. 34 (Gottfriedson).
. McCain Foods Limited v. J.R. Simplot Company

In McCain Foods Limited v. J.R. Simplot Company (Fed CA, 2021) the Federal Court of Appeal considered the test for allowing an amendment to pleadings (under the federal rules):
[20] The general rule is that an amendment should be allowed at any stage of an action for the purpose of determining the real questions in controversy between the parties, provided, notably, that the allowance would not result in an injustice to the other party not capable of being compensated by an award of costs and that it would serve the interests of justice: Canderel Ltd. v. Canada, 1993 CanLII 2990 (FCA), [1994] 1 F.C. 3, 157 N.R. 380 (C.A.); Enercorp at para. 19. However, the Prothonotary noted that the proposed amendment must have a reasonable prospect of success: Teva Canada Limited v. Gilead Sciences Inc., 2016 FCA 176, 140 C.P.R. (4th) 309 at paras. 29-32 (Teva). Another way to put this is that a proposed amendment will be refused if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45 at para. 17 (Imperial Tobacco).

[21] In deciding whether an amendment has a reasonable prospect of success, its chances of success must be examined in the context of the law and the litigation process, and a realistic view must be taken: Teva at para. 30; Imperial Tobacco at para. 25.

[22] In determining whether an amendment to a defence should be allowed, it is often helpful for the Court to ask itself whether the amendment, if it were already part of the proposed pleadings, would be a plea capable of being struck out: VISX Inc. v. Nidek Co., 1996 CanLII 11534 (FCA), [1996] F.C.J. No. 1721, 72 C.P.R. (3d) 19 (F.C.A.) at para. 16. If yes, the amendment should not be allowed.

[23] Rule 174 of the Rules requires that material facts be pleaded. However, there is no bright line between material facts and bald allegations: Mancuso v. Canada (National Health and Welfare), 2015 FCA 227, 476 N.R. 219 at para. 18 (Mancuso). Looking at the pleadings as a whole, the motions judge must ensure that they define the issues with sufficient precision to make the pre-trial and trial proceedings both manageable and fair: Mancuso at para. 18. In Enercorp, this Court recently developed the idea that proceedings should be manageable and fair:
[36] In deciding whether pleadings are “manageable and fair”, the Court should consider the whole of the circumstances, including the relative knowledge and means of knowledge of the parties. Rules as to sufficiency of pleadings must not be allowed to become instruments of oppression in the hands of those who have knowledge of material facts at the expense of those who seek to rely on those facts without, however, having the means of knowing those facts so as to be able to plead them with specificity.

[37] The statement at paragraph 19 of Mancuso that “The pleading must tell the defendant who, when, where, how and what gave rise to its liability” must be understood in light of the “manageable and fair” requirement. Where, as here, a party seeks to rely upon a transaction to which it is a stranger, it must be able to describe the transaction with sufficient particularity to allow the other party to identify the transaction in issue. If that criterion is met, the question of whether the pleadings are sufficient is to be assessed in light of all the circumstances including the respective means of knowledge of the parties.


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