Federal Courts Rules (SOR/98-106)

Marginal note:Witness fees

43 Where a witness is required under these Rules to attend a proceeding other than pursuant to a subpoena, the witness is entitled to witness fees and travel expenses in the amount set out in Tariff A.

44 [Repealed, SOR/2002-417, s. 7]

Marginal note:Compelling attendance of detainee

45 On motion, the Court may make an order in Form 45 requiring that any person who is in the custody of a prison or penitentiary be brought before the Court.

Marginal note:Failure to obey

46 Where a witness who is required to attend at a hearing fails to do so, on motion, the Court may, by a warrant in Form 46, order that the witness be apprehended anywhere in Canada, brought before the Court and

• (a) detained in custody until the witness’s presence is no longer required; or

• (b) released on a recognizance, with or without sureties, on condition that the witness attend to give evidence.

PART 3Rules Applicable to All Proceedings

General

Powers

Marginal note:Discretionary powers

• 47 (1) Unless otherwise provided by these Rules, if these Rules grant a discretionary power to the Court, a judge or prothonotary has jurisdiction to exercise that power on his or her own initiative or on motion.

• Marginal note:Exercise of powers on motion

  (2) Where these Rules provide that powers of the Court are to be exercised on motion, they may be exercised only on the bringing of a motion.

48 [Repealed, SOR/2004-283, s. 10]

Marginal note:Transfer of proceedings

49 If a proceeding has been commenced in the Federal Court of Appeal or the Federal Court, a judge of that court may order that the proceeding be transferred to the other court.

Marginal note:Prothonotaries

• 50 (1) A prothonotary may hear, and make any necessary orders relating to, any motion under these Rules other than a motion

  • (a) in respect of which these Rules or an Act of Parliament has expressly conferred jurisdiction on a judge;

  • (b) in the Federal Court of Appeal;

  • (c) for summary judgment or summary trial other than

    • (i) in an action referred to in subsection (2), or

    • (ii) in respect of a claim referred to in subsection (3);

  • (d) to hold a person in contempt at a hearing referred to in paragraph 467(1)(a);

  • (e) for an injunction;

  • (f) relating to the liberty of a person;

  • (g) to stay, set aside or vary an order of a judge, other than an order made under paragraph 385(a), (b) or (c);

  • (h) to stay execution of an order of a judge;

  • (i) to appoint a receiver;

  • (j) for an interim order under section 18.2 of the Act;

  • (k) to appeal the findings of a referee under rule 163; or

  • (l) for the certification of an action or an application as a class proceeding.

• Marginal note:Actions not over $100,000

  (2) A prothonotary may hear an action exclusively for monetary relief, or an action in rem claiming monetary relief, in which no amount claimed by a party exceeds $100,000 exclusive of interest and costs.

• Marginal note:Class proceedings

  (3) A prothonotary may hear a claim in respect of one or more individual questions in a class proceeding in which the amount claimed by a class member does not exceed $100,000 exclusive of interest and costs.

• Marginal note:Foreign judgment or arbitral award

  (4) A prothonotary may hear an application made under rule 327 for registration of a foreign judgment or recognition and enforcement of an arbitral award.

• Marginal note:Matters on consent

  (5) Despite paragraphs (1)(c) and (k), a prothonotary may render any final judgment that could be rendered by a judge of the Federal Court, except in a proceeding in respect of which an Act of Parliament expressly confers jurisdiction on a judge, if the prothonotary is satisfied that all of the parties that will be affected by the judgment have given their consent.

Appeals of Prothonotaries’ Orders

Marginal note:Appeal

• 51 (1) An order of a prothonotary may be appealed by a motion to a judge of the Federal Court.

• Marginal note:Service of appeal

  (2) Notice of the motion shall be served and filed within 10 days after the day on which the order under appeal was made and at least four days before the day fixed for the hearing of the motion.

Assessors

Marginal note:Role of assessor

• 52 (1) The Court may call on an assessor

  • (a) to assist the Court in understanding technical evidence; or

  • (b) to provide a written opinion in a proceeding.

• Marginal note:Fees and disbursements

  (2) An order made under subsection (1) shall provide for payment of the fees and disbursements of the assessor.

• Marginal note:Communications with assessor

  (3) All communications between the Court and an assessor shall be in open court.

• Marginal note:Form and content of question

  (4) Before requesting a written opinion from an assessor, the Court shall allow the parties to make submissions in respect of the form and content of the question to be asked.

• Marginal note:Answer by assessor

  (5) Before judgment is rendered, the Court shall provide the parties with the questions asked of, and any opinion given by, an assessor and give them an opportunity to make submissions thereon.

• (6) [Repealed, SOR/2010-176, s. 1]

Expert Witnesses

Marginal note:Right to name expert

• 52.1 (1) A party to a proceeding may name an expert witness whether or not an assessor has been called on under rule 52.

• Marginal note:Expert named jointly

  (2) Two or more of the parties may jointly name an expert witness.

Marginal note:Expert’s affidavit or statement

• 52.2 (1) An affidavit or statement of an expert witness shall

  • (a) set out in full the proposed evidence of the expert;

  • (b) set out the expert’s qualifications and the areas in respect of which it is proposed that he or she be qualified as an expert;

  • (c) be accompanied by a certificate in Form 52.2 signed by the expert acknowledging that the expert has read the Code of Conduct for Expert Witnesses set out in the schedule and agrees to be bound by it; and

  • (d) in the case of a statement, be in writing, signed by the expert and accompanied by a solicitor’s certificate.

• Marginal note:Failure to comply

  (2) If an expert fails to comply with the Code of Conduct for Expert Witnesses, the Court may exclude some or all of the expert’s affidavit or statement.

Marginal note:Exception for certain medical professionals

52.3 The rules governing expert witnesses do not apply to a medical professional who has given or is giving medical treatment or advice to a person if the evidence in relation to the person is limited to one or more of the following subjects:

• (a) the results of an examination;

• (b) a description of the treatment or advice;

• (c) the reason the treatment or advice was or is being given; and

• (d) the results of the treatment or advice.

Marginal note:Limit on number of experts

• 52.4 (1) A party intending to call more than five expert witnesses in a proceeding shall seek leave of the Court in accordance with section 7 of the Canada Evidence Act.

• Marginal note:Leave considerations

  (2) In deciding whether to grant leave, the Court shall consider all relevant matters, including

  • (a) the nature of the litigation, its public significance and any need to clarify the law;

  • (b) the number, complexity or technical nature of the issues in dispute; and

  • (c) the likely expense involved in calling the expert witnesses in relation to the amount in dispute in the proceeding.

Marginal note:Objection to expert

• 52.5 (1) A party to a proceeding shall, as early as possible in the proceeding, raise any objection to an opposing party’s proposed expert witness that could disqualify the witness from testifying.

• Marginal note:Manner of raising objection

  (2) An objection may be raised

  • (a) by serving and filing a document containing the particulars of and basis for the objection; or

  • (b) in accordance with subsection 262(2) or subparagraph 263(c)(i) if, in the case of an action, the objection is known prior to the pre-trial conference.

Marginal note:Expert conference

• 52.6 (1) The Court may order expert witnesses to confer with one another in advance of the hearing of the proceeding in order to narrow the issues and identify the points on which their views differ.

• Marginal note:Presence of parties and counsel

  (2) Subsection (1) does not preclude the parties and their counsel from attending an expert conference but the conference may take place in their absence if the parties agree.

• Marginal note:Presence of judge or prothonotary

  (3) The Court may order that an expert conference take place in the presence of a judge or prothonotary.

• Marginal note:Joint statement

  (4) A joint statement prepared by the expert witnesses following an expert conference is admissible at the hearing of the proceeding . Discussions in an expert conference and documents prepared for the purposes of a conference are confidential and shall not be disclosed to the judge or prothonotary presiding at the hearing of the proceeding unless the parties consent.

Orders and Directions

Marginal note:Orders on terms

• 53 (1) In making an order under these Rules, the Court may impose such conditions and give such directions as it considers just.

• Marginal note:Other orders

  (2) Where these Rules provide that the Court may make an order of a specified nature, the Court may make any other order that it considers just.