Efficiency and planning - Federal Court issues Trial Management Practice Notice

by DLA Piper

DLA Piper

The Canadian Federal Court has provided new guidelines for efficient trial management of all trials over five days in length. These guidelines are directed to improving the efficiency of trials in the Federal Court particularly for intellectual property proceedings and are released now in anticipation of more trials under the overhauled pharmaceutical patent linkage system expected imminently.

The Notice to the Profession, issued April 28, 2017, provides for the early exchange of material and positions between the parties and the earlier involvement of the trial judge. The guidelines follow a 2015 Practice Notice directed to the efficient pre-trial steps of complex litigation addressing limits on examinations for discovery and refusals motions, and early trial judge involvement.

As part of the implementation of the Comprehensive Economic Trade Agreement (CETA) with Europe, Canada committed to, among other things, overhauling the pharmaceutical litigation process (i.e. the patent linkage regime). The changes will include having all proceedings relating to the regulatory approval/patent linkage system proceed by way of actions with full trials rather than by application, as the current regime provides in Canada. In many cases under the current system, the initial applications are followed by patent infringement/impeachment proceedings resulting in duplicative proceedings dealing with many of the substantive issues addressed in the earlier applications.

With the expected increase in trials and the general desire to make intellectual property litigation more efficient, the trial management practice notice put limits on last minute motions and fixes deadlines for providing objections to expert reports and discovery read-ins. The application of the guidelines will be handled by the case management judge and the trial judge. All pharmaceutical and most other intellectual property cases in the Federal Court in Canada are typically case managed from the pleadings stage.

Three key items implemented by the Practice Notice are:

  • Prohibition on motions brought within 60 days of the trial without leave of the case management judge. While not under this practice notice, Justice Barnes described the effect of late filed motions on a trial schedule: “The interests of the litigants are always in the forefront of the Court’s consideration of pleading amendments.  But the Court is not at the total mercy of the parties before it. The public, too, has an interest in the preservation and allocation of Court time and resources.”1
  • A trial schedule, including brief descriptions of the proposed areas of testimony of fact witnesses and the duration of testimony, are to be prepared and exchanged at least two weeks before the trial.
  • Objections to expert reports are to be made within 30 days of service of the reports and no later than 30 days before trial. In addition, copies of expert reports are to be submitted to the court at least two weeks before trial in both paper and electronic form, for those experts which the party undertakes to call.

All of the items in the Practice Notice are subject to further direction of the trial judge and case management judge. Items such as compendia, joint books of documents, statements of fact and issue lists are also to be discussed and exchanged prior to the trial.

This practice notice should assist the court and the parties with trial planning and lead to more efficient use of trial time by adopting many of the best practices already used by experienced counsel and judges. 

[1] Astrazeneca Canada Inc v Apotex Inc, 2017 FC 378 at para 23.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© DLA Piper | Attorney Advertising

Written by:

DLA Piper

DLA Piper on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.