Justice modernization ‘window is open’, says B.C.’s top judge, speaking on courts, virtual advocacy

The COVID-19 pandemic has presented an opportunity to modernize the justice system, participants to a Canadian Lawyer webinar heard on Thursday.

“I think that window is wide open now,” said Robert Bauman, Chief Justice of British Columbia.  “That is something we can pursue with renewed vigour, knowing that we are adaptable — we've demonstrated that in our various responses — and knowing that to do so is critical to a viable justice system in this country.”

The webinar “Virtual Advocacy,” part of Canadian Lawyer’s “Steering Organizations Through Crisis Times” online event series, heard from three judges and other legal professionals on how the courts are conducting themselves during the pandemic, and how advocacy can best be accomplished. It was moderated by Jacob Damstra, an associate at Lerners LLP in London, Ont.

Ontario Attorney General Doug Downey’s opening remarks addressed the need to modernize the justice system. In December he introduced Bill 161, the Smarter and Stronger Justice Act, 2020, that would introduce online notaries and commissioners, among other things. Downey gave the example of a timeshare condo dispute that recently saw 1,000 people participate on a Zoom call for a case management hearing date.

“That would not have been possible before,” said Downey. “So this has really propelled us into new ways of thinking of how we do things.”

In Ontario, judicial pre-trials are just one type of conference and procedure that are now taking place remotely since a state of emergency over COVID-19 was declared in mid-March — and they’re starting and ending on time, Downey said.

“People who think that they're just waiting to go back to normal, … they're gonna miss the boat,” he said. “Because we're not going back to normal. The judges are saying, ‘We're not going back to normal.’ I'm telling you, ‘We're not going back to normal.’ And I think your colleagues will tell you they're finding ways to do things different and better.”

Some of the best lessons and instruction from a regular courtroom setting apply even more in a digital setting, said Ewa Krajewska, a partner in Borden Ladner Gervais LLP in Toronto, such as tone and pace. In a remote setting, creating a compendium for the court in order to make it easier for judges to review documents in a time-effective manner is especially important, she said.

Also important is keeping lines of communication open with fellow counsel, as the collegiality of bumping into opposing counsel in a hallway and resolving matters before a chambers appointment has been lost for now.

Chief Justice Bauman and Ontario Court of Appeal Justice David Brown offered differing points of view on the importance of oral advocacy.

“We don’t need it except in the most complex of cases,” said Brown, where the written record gives rise to questions. “The reality is, in the majority of cases we hear — from 50 to 70 per cent — we go in knowing how we’ll dispose of the appeal. Oral advocacy doesn’t give much added value.”

Bauman, on the other hand, said he agreed with Ontario Chief Justice George Strathy that “oral advocacy is extremely important, and remains so.

“I, too, have had my moments of epiphany during a well-delivered oral argument, so I’m not ready to abandon that,” said Bauman. E-hearings are less intimate, making it more difficult to “pick up cues” from counsel and others; “you’re affected by the medium.”

Compendiums are critical, he agreed, in helping judges through the electronic record in the easiest manner possible.

As of May 4, B.C.’s Court of Appeal has been hearing all scheduled appeals, and all chambers matters via teleconference, said Bauman. It is now looking to go to in-person hearings. On the civil side it has implemented mandatory e-filing.

“We’ve introduced the option of having matters heard in writing,” he said, though “we’ve not had one set of litigants take us up on that particular option.”

Brown called the current situation “a generational opportunity that we have … to achieve the goals of Jordan and Hryniak on both sides of the business that we do. And I certainly hope that we take advantage of this generational opportunity, because it can slip away all too quickly.”

Like the B.C. courts, for Ontario Court of Appeal initially dealt with emergency matters only, largely bail pending appeal. The court’s goal is that cases scheduled to be heard from mid-March to mid-June will all be cleared by the end of August. The process of case managing the appellate court’s adjourned cases will come to conclusion this week, Brown said.

Ontario’s appellate court has moved to paperless filing on both the civil and criminal sides, where law clerks assemble electronic appeal files and moved them on to the judges, Brown added. The court has also been discussing with counsel three modes of hearing to deal with the adjourning cases, namely disposing of the appeal on the written record as filed, with a short video conference option if the panel has questions for counsel; online or remote hearings using CourtCall; and in-person hearings at such time as the courts stop operating remotely.

Darla Wilson, a judge in the Ontario Superior Court of Justice, said her court had scheduled all pre-trials with fixed dates prior to end of June, plus existing pre-trials, and as of April 1 have been conducting those remotely through Zoom. Most recently the court had expanded on the civil side to include case conferences, chambers appointments, and opposed short motions in writing, to be triaged by judge. Commercial, criminal and estates courts are also conducting virtual hearings.

“We’ve all adapted, and are doing various things remotely,” Wilson said. “It’s a very exciting time, and a time for us to think about how we can do things differently.”