Federal Courts Rules (SOR/98-106)

Marginal note:Persons to be included as respondents

• 338 (1) Unless the Court orders otherwise, an appellant shall include as a respondent in an appeal

  • (a) every party in the first instance who is adverse in interest to the appellant in the appeal;

  • (b) any other person required to be named as a party by an Act of Parliament pursuant to which the appeal is brought; and

  • (c) where there are no persons that are included under paragraph (a) or (b), the Attorney General of Canada.

• Marginal note:Substitution for Attorney General

  (2) On a motion by the Attorney General of Canada, where the Court is satisfied that the Attorney General is unable or unwilling to act as a respondent in an appeal, the Court may substitute another person or body, including a tribunal whose order is being appealed, as a respondent in the place of the Attorney General of Canada.

Marginal note:Service of notice of appeal

• 339 (1) Unless the Court directs otherwise or an Act of Parliament authorizing the appeal provides otherwise, within 10 days after the issuance of a notice of appeal, the appellant shall serve it on

  • (a) all respondents;

  • (b) in the case of an appeal of an order of a tribunal,

    • (i) the Attorney General of Canada, and

    • (ii) the tribunal or its chief executive officer;

  • (c) any person who is not a party and who participated in the first instance; and

  • (d) any other person directly affected by the appeal.

• Marginal note:Proof of service

  (2) Proof of service of a notice of appeal shall be filed within 10 days after the notice of appeal is served.

Marginal note:Solicitor of record and address for service

340 In an appeal from the Federal Court to the Federal Court of Appeal, the solicitor of record and the address for service of a party on the appeal shall be the same as they were in the first instance, unless the solicitor of record in the first instance provided limited-scope representation and they served and filed a notice under subsection 124(5).

Marginal note:Appearance or cross-appeal

• 341 (1) A respondent who intends to participate in an appeal shall, within 10 days after service of the notice of appeal, serve and file

  • (a) a notice of appearance in Form 341A; or

  • (b) where the respondent seeks a different disposition of the order appealed from, a notice of cross-appeal in Form 341B.

• Marginal note:Content of notice of cross-appeal

  (2) A notice of cross-appeal shall set out

  • (a) a precise statement of the relief sought; and

  • (b) a complete and concise statement of the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on.

• Marginal note:Leave for late cross-appeal

  (3) Where a respondent has not filed a notice of cross-appeal under subsection (1), the cross-appeal may not be heard without leave of the Court.

Marginal note:Consolidation of appeals

• 342 (1) Unless the Court orders otherwise, where more than one party appeals from an order, all appeals shall be consolidated.

• Marginal note:Directions

  (2) The Court may give directions as to the procedure to be followed in a consolidation under subsection (1).

Appeal Books

Marginal note:Agreement re appeal book

• 343 (1) Within 30 days after the filing of a notice of appeal, the parties shall agree in writing as to the documents, exhibits and transcripts to be included in the appeal book and shall file a copy of that agreement.

• Marginal note:Limitation

  (2) The parties shall include in an appeal book only such documents, exhibits and transcripts as are required to dispose of the issues on appeal.

• Marginal note:Motion to determine content of appeal book

  (3) If an agreement is not reached within the period referred to in subsection (1), the appellant shall, within 10 days after the expiry of that period, bring a motion in accordance with rule 369 or 369.2, as the case may be, requesting that the Court determine the content of the appeal book.

• Marginal note:Order for transcripts or reproductions

  (4) Where a transcript or the reproduction of exhibits is required, the appellant shall order it and shall file proof of the order within 10 days after filing an agreement under subsection (1) or obtaining an order under subsection (3).

• Marginal note:Preparation of appeal book

  (5) The appeal book shall be prepared by the appellant forthwith unless, on the motion of the appellant, the Court orders the Administrator to prepare an appeal book on the appellant’s behalf from documents provided by the appellant.

Marginal note:Content of appeal book

• 344 (1) An appeal book shall contain, on consecutively numbered pages and in the following order,

  • (a) a table of contents describing each document;

  • (b) the notice of appeal and any notice of cross-appeal;

  • (c) the order appealed from, as signed and entered, and any reasons, including dissenting reasons, given in respect of that order;

  • (d) the originating document, any other pleadings and any other document in the first instance that defines the issues in the appeal;

  • (e) subject to subsection (2), all documents, exhibits and transcripts agreed on under subsection 343(1) or ordered to be included on a motion under subsection 343(3);

  • (f) any order made in respect of the conduct of the appeal;

  • (g) any other document relevant to the appeal;

  • (h) an agreement reached under subsection 343(1) as to the contents of the appeal book or an order made under subsection 343(3); and

  • (i) a certificate in Form 344, signed by the appellant’s solicitor, stating that the contents of the appeal book are complete and legible.

• Marginal note:Colour of cover

  (1.1) An appeal book that is filed in paper copy shall have a grey cover.

• Marginal note:Transcripts separate

  (2) Transcripts may be reproduced in a separate document.

Marginal note:Appeal book

• 345 (1) An appellant shall serve and file the appeal book within 30 days after the day on which a copy of an agreement under subsection 343(1) is filed or an order under subsection 343(3) is obtained.

• Marginal note:Number of copies

  (2) The appellant shall file

  • (a) if the appeal is brought in the Federal Court, an electronic copy of or, subject to rule 72.4, three paper copies of the book; and

  • (b) if the appeal is brought in the Federal Court of Appeal, an electronic copy of or, subject to rule 72.4, five paper copies of the book.

Memoranda

Marginal note:Appellant’s memorandum

• 346 (1) Within 30 days after filing an appeal book, the appellant shall serve and file a memorandum of fact and law.

• Marginal note:Respondent’s memorandum

  (2) Within 30 days after service of the appellant’s memorandum of fact and law, the respondent shall serve and file the respondent’s memorandum of fact and law.

• Marginal note:Where cross-appeal filed

  (3) Where a respondent has served a notice of cross-appeal under rule 341,

  • (a) the respondent shall serve and file a memorandum of fact and law as appellant by cross-appeal, either separate from or as part of the respondent’s memorandum of fact and law, within the time set out in subsection (2); and

  • (b) the appellant shall serve and file a memorandum of fact and law as respondent to cross-appeal, within 30 days after service of the respondent’s memorandum of fact and law.

• Marginal note:Colour of memorandum

  (4) A memorandum of fact and law that is in paper copy shall have

  • (a) in the case of the appellant’s memorandum, a beige cover;

  • (b) in the case of the respondent’s memorandum, a green cover; and

  • (c) in the case of an intervener’s memorandum, a blue cover.

• Marginal note:Number of memoranda to be filed

  (5) Memoranda of fact and law shall be filed in the same number as are appeal books.

Requisition for Hearing

Marginal note:Requisition for hearing

• 347 (1) Within 20 days after service of the respondent’s memorandum of fact and law or 20 days after the expiration of the time for service of the respondent’s memorandum of fact and law, whichever is the earlier, an appellant shall serve and file a requisition in Form 347 requesting that a date be set for the hearing of the appeal.

• Marginal note:Default by appellant

  (2) Where an appellant fails to comply with subsection (1), a respondent may, in lieu of bringing a motion under rule 167, serve and file a requisition in Form 347 to request that a date be set for the hearing of the appeal.

• Marginal note:Content of requisition

  (3) A requisition referred to in subsection (1) shall

  • (a) include a statement that the requirements of subsections 346(1) and (5) have been satisfied and that any notice required under section 57 of the Act has been given;

  • (b) set out the location at which the hearing should be held;

  • (c) set out the maximum number of hours or days required for the hearing;

  • (d) list any dates within the following 90 days on which the parties are not available for a hearing;

  • (e) set out the name, address, telephone number and fax number of the solicitor for every party to the appeal or, where a party is not represented by a solicitor, the person’s name, address, telephone number and any fax number; and

  • (f) indicate whether the hearing will be in English or French, or partly in English and partly in French, and whether the materials in the requisition for hearing file will be in English or French, or partly in English and partly in French.

Book of Authorities

Marginal note:Joint book

• 348 (1) Within the time for serving and filing the requisition for the hearing set out in subsection 347(1), the parties shall file

  • (a) if the appeal is brought in the Federal Court, an electronic copy of or, subject to rule 72.4, three paper copies of a joint book of statutes, regulations and authorities; and

  • (b) if the appeal is brought in the Federal Court of Appeal, an electronic copy of or, subject to rule 72.4, five paper copies of a joint book of statutes, regulations and authorities.

• Marginal note:Separate books

  (2) If the parties cannot agree on a joint book of statutes, regulations and authorities, they shall each file a separate book, without reproducing documents that are included in the book of another party.

• Marginal note:Enactments in both official languages

  (3) Extracts of federal statutes and regulations in a book of statutes, regulations and authorities shall be reproduced in both official languages.

• Marginal note:Reasons for judgment

  (3.1) In respect of any reasons for judgment, a book of statutes, regulations and authorities shall contain

  • (a) in the case where the book is filed in paper copy and the reasons are available from an electronic database that is accessible to the public at no charge, the relevant extracts of the reasons — including the head note, if any, and the paragraphs immediately preceding and following the extracts — with a reference to the database clearly marked on the page containing the extract; and

  • (b) in any other case, the reasons for judgment in full with the relevant extracts clearly marked.

• Marginal note:Colour of cover

  (4) A book of statutes, regulations and authorities that is in paper copy shall have

  • (a) if the book is filed jointly, a burgundy cover; and

  • (b) if the book is filed separately, a cover that is the same colour as the filing party’s memorandum of fact and law.

Condensed Book

Marginal note:Copies and content

348.1 A party may file five paper copies of a condensed book that contains the extracts from the appeal book and the book of statutes, regulations and authorities that the party will refer to in oral argument.

Consent to Reversal or Variation of Judgment

Marginal note:Consent to reversal or variation of judgment

• 349 (1) A respondent may consent to the reversal or variation of an order appealed from by serving and filing a notice to that effect.

• Marginal note:Judgment on consent

  (2) The Court may pronounce judgment in accordance with a notice filed under subsection (1) if the resultant judgment is one that could have been given on consent.

Material in the Possession of a Tribunal

Marginal note:Material in possession of a tribunal

350 Rules 317 to 319 apply to appeals and motions for leave to appeal, with such modifications as are necessary.

New Evidence on Appeal

Marginal note:New evidence on appeal

351 In special circumstances, the Court may grant leave to a party to present evidence on a question of fact.