Federal Court Rejects Rule 74 for Common Procedural Objections

Date: 20260416 Docket: T-2982-25 Citation: 2026 FC 519 Montréal, Québec, April 16, 2026 PRESENT: Mr. [NAME] Judge Shannon BETWEEN: CANADIAN HUMAN RIGHTS COMMISSION Applicant and [COMPANY]. and [NAME] Respondents

ORDER AND

REASONS [ 1 ] The [COMPANY] ([NAME]) has filed a motion seeking an Order pursuant to Rules 4 and 74 of the Federal Courts Rules , SOR/98-106 [ Rules ], removing the Respondent Ms. [NAME]’s memorandum of fact and law from the Court file and granting [NAME] an extension of time to file its Respondent’s Record. At a hearing on the motion, [NAME] confirmed that it relies on paragraphs (a), (b) and (c) of Rule 74(1), claiming that [NAME]’s memorandum: (a) was not filed in accordance with these Rules , an order of the Court or an Act of Parliament; (b) is scandalous, frivolous, vexatious or clearly unfounded; and (c) is otherwise an abuse of this Court’s process. [ 2 ] For the reason that follow, the motion is dismissed.

I. Rule 74 Procedure [ 3 ] Rule 74 was recently considered by this Court in [NAME] v Canada (Minister of Citizenship and Immigration) , 2026 FC 152 [ [NAME] ]. In that case, [NAME] Judge Horne made clear that Rule 74 is a tool that permits the Court to control its own process (para 2). The Rule is “intended to address the excessive or disproportionate use of rights under the Rules, such as the use of procedures to delay cases and the adoption of behaviours disproportionate to the objective of achieving an expeditious, just and cost-effective judicial decision” ( [NAME] , para 10). [ 4 ] As the Court stated in [NAME] , “the process leading to a decision under Rule 74 to remove a document from the Court file (or not) is engaged only at the Court’s initiative. It is not a process that parties can initiate, or that they control” (para 12). [ 5 ] Filing a formal Rule 74 motion is therefore not the proper procedure. [ 6 ] Instead, where a party is of the view that a document is improperly on the Court file, there are two options: bring a motion a strike or “write to the Court and request that the Court exercise its discretion and issue an order or direction giving notice to the party that filed the document that submissions are required as to whether it was properly filed” ( [NAME] , para 13). Where a party chooses the latter route, the Court may then, at its own discretion, elect to engage Rule 74: If the Court elects to use Rule 74, and that decision rests entirely with the Court, a timetable will typically be set for the exchange of submissions as to whether the document should be removed from the Court file. ( [NAME] , para 13) [ 7 ] Except in extreme circumstances, Rule 74 is not a substitute for a motion to strike, whether a party is seeking to strike an originating document, a memorandum of fact and law or otherwise. Indeed, there is a key legal difference between a motion to strike and the procedural mechanism enshrined in Rule 74. As explained in [NAME] , Rule 74 creates a reverse onus: If the Court engages the process under Rule 74, the party filing the document must provide reasons as to why it should stay on the Court file. A party bringing a motion to strike bears the burden of demonstrating that the applicable test has been satisfied. ( [NAME] , para 14). [ 8 ] In the majority of cases involving common procedural objections, it would be unjustified and fundamentally unfair to reverse the onus. In all but the most exceptional of circumstances, a party seeking to strike a document cannot be permitted to circumvent a motion to strike and the legal burden it must bear.

II. The Parties’ Positions on the Motion [ 9 ] By way of the underlying application, the Applicant Canadian Human Rights Commission ([NAME]) seeks judicial review of a Canadian Human Rights Tribunal (the Tribunal) decision. The original complainant before the Tribunal, [NAME], is a Respondent in these proceedings, though she “supports the application for judicial review and the relief sought by the [Applicant] for quashing and remittal” . [ 10 ] On the motion at issue, [NAME] asks this Court to remove [NAME]’s memorandum of fact and law from the Court file because it explicitly advances additional grounds of review beyond those listed in [NAME]’s Notice of Application. [NAME] cites Rule 301 and the case law of the Federal Courts for the proposition that judicial review is limited to grounds set out in the notice of application. If a respondent such as [NAME] wishes to seek review of a decision on grounds that are different from those listed in a notice of application, she must file her own application for judicial review (see, for e.g. , Makivik Corporation v Canada (Attorney General) , 2021 FCA 184 at para 53). [ 11 ] Given the advent of artificial intelligence, [NAME] also claims that it is regularly faced with proceedings wherein respondents – particularly self-represented respondents – use artificial intelligence to construct their memoranda, and in so doing, include multiple new grounds of review. According to [NAME], it is “a lot of work” and therefore unfair to force [NAME] to respond to the new grounds raised in such memoranda, particularly when [NAME] is limited to filing a 30-page memorandum in response. [ 12 ] For her part, [NAME] argues that she is not seeking to expand the Court’s review beyond the grounds listed in [NAME]’s Notice of Application. In fact, at the hearing, she confirmed her position that [NAME] is only required to respond to the grounds set out in [NAME]’s Notice. In her written submissions, [NAME] draws links between each of the arguments in her memorandum of fact and law and the grounds already listed in [NAME]’s Notice of Application. [ 13 ] [ADDRESS] notes that both [NAME] and [NAME] have declared that artificial intelligence was used to generate, refine and/or edit their respective submissions. [ADDRESS] also notes that the Applicant [NAME] takes no position on the Rule 74 motion. All parties consent to [NAME]’s request for an extension of time to file its Respondent’s Record.

III. Analysis [ 14 ] As a threshold issue and for the reasons set out in [NAME] at paragraphs 10-15, I must first decide whether to exercise my discretion to engage Rule 74. For the following reasons, I decline to do so. [ 15 ] This is not a case for Rule 74. [NAME] raises a common procedural objection that must either be dealt with by way of motion to strike or as a preliminary objection at the hearing on the merits. [NAME]’s objection does not justify reversing the onus and placing the legal burden on [NAME] to demonstrate why her document should not be removed from the Court record. [NAME]’s alleged inclusion of grounds beyond those listed in the Notice of Application, even if true, does not rise to the level of “extreme circumstances” or “excessive or disproportionate use of rights under the Rules” ( [NAME] , paras 12, 10) that would justify engaging Rule 74. [NAME] must either bear the legal burden on a motion to strike or raise the matter as a preliminary objection before the Applications Judge. [ 16 ] As to [NAME]’s argument that the proliferating use of artificial intelligence in litigation has forced [NAME] to respond regularly to grounds of review that are not listed in a notice of application, Rule 74 is not the proper solution. Where a respondent is required to expend additional resources to respond to new grounds of review, they may file a motion to strike, request additional pages to respond and/or, where warranted, seek additional costs via Rule 400.

ORDER in T-2982-25 THIS COURT ORDERS that : The [COMPANY].’s motion is dismissed. The [COMPANY]. shall have 30 days from the date of this Order to serve and file, along with proof of service, its Respondent’s Record pursuant to Rule 310. The whole without costs. “[NAME] G. Shannon” [NAME] Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-2982-25 STYLE OF CAUSE: CANADIAN HUMAN RIGHTS COMMISSION v [COMPANY]. AND [NAME] OF HEARING: HEARD BY VIDEOCONFERENCE DATE OF HEARING: APRIL 15, 2026

ORDER AND

REASONS: [NAME] JUDGE SHANNON DATED: APRIL 16, 2026 APPEARANCES : [NAME] FOR THE APPLICANT [NAME] For The [COMPANY]. [NAME] FOR THE RESPONDENT [NAME], ON HER OWN BEHALF SOLICITORS OF RECORD : [NAME], [COMPANY], Ontario FOR [COMPANY] and Solicitors Montréal, Quebec For The [COMPANY].