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Welcoming e-advocacy: Advice on winning your first virtual appeal

Friday, April 17, 2020 @ 1:50 PM | By Jacob R.W. Damstra


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Jacob R.W. Damstra %>
Jacob R.W. Damstra
The world of advocacy is changing. With the advent of social distancing how we deliver legal services, and especially how we assist clients navigating the justice system in our courts, has changed abruptly and significantly.

Some of these changes were already afoot, albeit at a glacial pace, but the outbreak of COVID-19 has forced the urgent adoption (if not yet a full embrace) of the stark reality that we need to confront and take seriously the opportunity that technology affords to improve access to justice and provide more efficient delivery of legal services and advocacy.

So what does this mean for litigators and appellate advocates? Gone are the days, or at least they seem to be on their way out, where insistence upon personal attendance at our courts to file mounds of paper and in-person appearances in physical courtroom spaces are the best (or even the only) way to litigate and advocate for our clients’ interests.

In Ontario, members of the legal profession, including The Advocate’s Society (TAS), the Ontario Bar Association (OBA), the Federation of Ontario Law Associations (FOLA), and the Ontario Trial Lawyers Association (OTLA), have established an E-Hearings Task Force. The task force has been struck to address “the pressing need throughout Ontario for greater access to justice by means of electronic hearings.”

The task force is intended to serve as a liaison between the Ontario bench and bar “in respect of practice directions and other regulatory changes required to implement fair and efficient electronic hearings (e-hearings) including motions, applications, pre-trial conferences, trials, and appeals, by means of teleconference and video conference and other electronic platforms.” The task force is also going to develop best practices for the preparation and conduct of e-hearings, and identify workable platforms for the continued expansion of e-hearings in Ontario.

Similarly, in an article published by The Lawyer’s Daily on March 31, 2020, our former Chief Justice of Canada Beverly McLachlin made an impassioned call to “review our processes and requirements, with a meaningful and calculated assessment of what is redundant, no longer necessary in the age of technology, not essential to the functioning of justice, or anachronistic.” She implored that our courts “must be sufficiently funded to function in a modern fashion — no longer reliant on paper, a bricks-and-mortar-only approach to the courthouse and a mode of interaction that requires people to be physically in the same space.”

Worry not, however, whether there is still a place for oral advocacy in our justice system as it transitions into the virtual age — we strongly believe that there is. What is clear, though, is that we must be prepared to deliver our submissions and oral argument in new, innovative, and modern methods. With that in mind, here are some thoughts for setting yourself up for success at your first (or 5th, or 50th) e-hearing, whether at an appellate court, a trial or motion or a tribunal hearing.

Writing winning arguments

Now, as always but perhaps more than ever, the importance of persuasive written advocacy cannot be overstated. We’ve all heard from judges and adjudicators how critical the written materials we put before them are. I’m sure we’ve also heard how irksome it can be to our judiciary when they do not have the assistance of well-crafted, clear, concise facta. So much so that Justice John I. Laskin, recently retired from the Court of Appeal for Ontario, dedicated 13 pages in the Spring 2020 issue of The Advocates Journal and a chunk of his retirement to remind us about “Persuasive Sentences.”

This isn’t the forum for rehashing what makes for persuasive written advocacy, only to emphasize its importance in this transitional time. As judges and adjudicators (and lawyers) get used to the ins-and-outs of oral advocacy in e-hearings we should be loath to underestimate the value of effective and efficient written arguments to position the issues going into the e-hearing and guide our decision-makers as they return to deliberate and write their reasons post-hearing.

To highlight the point, the Court of Appeal for Ontario released a motion decision on April 3, 2020, in which Justice David Paciocco ordered an appeal that was scheduled to be heard April 9, 2020 would be heard in writing, with the opportunity for the panel to ask questions by teleconference, at the panel’s discretion (Carleton Condominium Corporation No. 476 v. Wong 2020 ONCA 244). The appellant sought an adjournment to September or October, while the respondent requested that the appeal proceed in writing, with an opportunity for the parties to respond to panel questions either by teleconference or videoconference on April 9, 2020.

Justice Paciocco noted that the appeal could be fairly adjudicated in writing and “The written materials reflect that they were professionally prepared. The appellant’s materials present the issues with clarity and the appellant’s position is well developed. The respondent’s materials are responsive.” He also considered that the issues on appeal — statutory interpretation, sufficiency of notice, alleged misapprehension of evidence, limitation period — were all “by their nature, capable of being addressed in writing.”

He found that the delay of the appeal would be prejudicial and that a preference for in-person oral argument, while understandable, was not in the interests of justice. He ruled: “It is in the interests of justice to have the appeal proceed in writing based on the materials filed. The parties will have an opportunity to respond, by teleconference, to any questions the panel may have, on the date set for the appeal, April 9, 2020.”

While it may not always be “in the interests of justice” to direct an appeal hearing in writing, with questions from the panel by teleconference at the court’s discretion, it is notable that the court is willing to direct this method of e-hearing, over the objections of a party. The importance of professional, clear, well developed written materials is of the utmost importance. 

This is part one of a two-part series.

Jacob R.W. Damstra is an associate at Lerners LLP in London. He maintains a dynamic dispute resolution, litigation, and appellate advocacy practice involving commercial and insurance disputes, public and administrative law, health law, and environmental, municipal and regulatory matters.
 
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