We are all changing and updating the way we do things as we adjust to the "new normal" of the pandemic. Courts, lawyers and litigants are no exception. Like all Canadians, jurists have had to modify their processes almost overnight while still ensuring that Canadians have adequate access to justice.
As with many public institutions, there was an immediate response to the lockdown – hearings were postponed (with the exception of some urgent matters that were moved to virtual hearings), limitations periods were suspended and document filing was only done online. Although these were intended as temporary measures, most are likely here to stay. They have proven to be convenient and expedient processes and procedures.
Some of these advancements, such as the ability to file documents online, were already in place to some extent or in the works, but the pandemic accelerated their expansion or adoption.
Similarly, virtual hearings, which were already used in some circumstances, have become the norm rather than the exception, at least for the time being. The initial restriction that limited the cases being heard through a virtual hearing to urgent matters has gradually loosened. Courts are moving full steam ahead with virtual hearings whenever possible. Many matters are scheduled to be heard virtually in the coming months even as some courts resume in-person hearings with appropriate precautions.
The Superior Court and Federal Court
In the early days of the pandemic, matters had to be urgent (in the view of the court) in order to proceed and then only virtually. In Ottawa, this was true of both the Superior Court and the Federal Court. As the pandemic continued and as courts and lawyers became more comfortable with online processes, both courts allowed all matters to proceed, so long as they were heard virtually.
Although both Superior Court and Federal Court are now allowing in-person hearings, virtual hearings remain the default and are even encouraged. In short, you had better have a very good reason why a virtual hearing is not appropriate to oppose it. The virtual process, especially as it concerns civil matters, has proven to be efficient and convenient.
The Supreme Court
The Supreme Court of Canada in Ottawa has not been exempt from these changes. From March to May of this year, all hearings were cancelled and postponed. Only in June did the Court start rescheduling matters and having virtual hearings. As of September, hearings may be heard in person or by videoconference.
We have also heard suggestions for a "hybrid" approach, where some parties will appear in person and others will appear virtually, depending on the situation at the time of the hearing. For cases to be heard this fall, the Supreme Court Registry has started taking details from the parties with respect to the logistics and procedures to follow for each appeal hearing.
Finally, arbitration processes – for which virtual hearings have not been novel at all – have also embraced these new digital processes. As it became evident that the pandemic would span a longer period of time, some domestic and international institutionalized arbitration fora started adapting and incorporated virtual hearings into their rules and practice directions.
Courts and lawyers are working through these new processes, which will of course take some getting used to. But necessity is the parent of innovation. With no alternative but to adapt, we have learned that some of these changes aren't so bad after all.
The Benefits of Virtual Proceedings
Some of these changes will significantly increase access to justice by reducing the costs of litigation. If lawyers do not have to travel to attend in-person hearings or out-of-court procedural appearances, it will significantly decrease costs for clients. Other seemingly mundane things, like increasing the ability to file documents online, also reduces costs.
The environmental impact can be significant as well as both lawyers and courts have become more comfortable working with voluminous records electronically rather than ever increasing volumes of paper materials.
Some people are concerned that there is something about an in-person hearing that is lost in a virtual hearing. This may be true for both the lawyers' arguments and for other aspects like assessing witness credibility. Others are less concerned about this and say that it is sometimes actually easier to see and hear a witness over video. Trial or motion judges, at least in civil matters, have shown no concern in this regard as recent practice in both courts demonstrates.
Impact on the Open Court Principle
Finally, the open court principle, which some feared would be negatively impacted by this move online, has also been preserved.
In both Superior Court and Federal Court, the public can request access to the videoconference to observe a hearing (where the hearing is not confidential, the same as has always been the case for in-person hearings).
At the Supreme Court, even prior to the pandemic, it was common for proceedings to be webcast on its website unless a matter was deemed to be unsuitable for webcasting due to a publication ban or privacy concerns. In some ways, virtual access may even increase the openness of the courts as anyone anywhere in Canada can observe a trial that interests them where, previously, they would have had to attend in person.
Jurists will continue to face challenges as the legal system adapts to this new reality but, for many aspects of the litigation process, this new online world is proving effective. We do think that there will always be some place for in-person hearings, but it's become clear that this new digital process is here to stay. The digital 21st century appears to have fully arrived, for civil litigation in particular.
Stacey Smydo is an associate with the Fasken Ottawa office who practices with both our litigation and communications practice groups. Within her litigation practice, she specializes in copyright and trade mark law. Stacey has acted in matters before the Federal Court, Federal Court of Appeal and the Copyright Board.
Alexandra Logvin is counsel with the Fasken Ottawa office and practices predominantly in the areas of commercial litigation, arbitration, international trade and investment law. She sits as a member of the International Chamber of Commerce (ICC) Canada Arbitration Committee, a member of the Membership Committee of the County of Carleton Law Association (CCLA), and as a director of the Ottawa chapter of the Organization of Women in International Trade (OWIT), the Canadian Council on International Law (CCIL) and the Ottawa chapter of the Canada Eurasia Russia Business Association (CERBA).
Sabine Ndiaye is a law clerk with the Fasken Ottawa office practicing in the Litigation and Dispute Resolution and Labour Employment and Human Rights groups. Leveraging her strong legal background, Sabine participates in preparing documents related to various legal proceedings and works on Supreme Court of Canada agency matters.