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Canadian courts adapt to challenges of COVID-19

Thursday, May 28, 2020 @ 1:16 PM | By Mathew Brechtel

Mathew Brechtel %>
Mathew Brechtel
Over the past few months, Canadians have experienced unprecedented changes in all facets of their lives. As businesses, from restaurants to banks, have quickly shifted their operations to help flatten the curve, so to have our nation’s courts.

While working to limit the spread of COVID-19, courts around the country have worked to balance closures with the importance of maintaining access to courts and delivering justice to Canadians.

Initial closures

Starting in mid-March, courts across the country began issuing practice directions and notices to the profession outlining plans for modifying operations to protect health and safety. For the most part operations were suspended, aside from urgent matters.  

The Ontario Superior Court of Justice, for instance, adjourned all criminal, family and civil matters scheduled on or after March 17, 2020. In the first notice on COVID-19, Chief Justice Geoffrey Morawetz emphasized the fundamental role of the courts in our constitutional democracy and the necessity for continued access to justice for the most urgent matters. These included certain criminal and family matters, matters related to public health and safety and COVID-19, and time-sensitive civil and commercial matters but only “where immediate and significant financial repercussions may result if there is no judicial hearing.” The court has since consolidated all of its provincewide directions related to COVID-19 to assist and promote understanding among the public.

Chief Justice Nicole Hesler and Quebec Minister of Justice Sonia Lebel issued a ministerial order of similar effect, postponing all matters in Quebec courts except of a narrow list of urgent matters which would be held in-camera.

Chief Justice Christopher Hinkson of the Supreme Court of British Columbia similarly issued notice to the profession suspending most operations, except for a list of urgent matters. This list was soon expanded to include a range of insolvency matters, including time-sensitive foreclosure applications, applications for a bankruptcy order and matters requiring immediate relief under the Canada or British Columbia Business Corporations Act.

The Federal and British Columbia Courts of Appeal similarly limited access to urgent matters. Both courts reviewed their case list to prioritize appeal and chambers hearings based on urgency and adjourned all other matters. Cases that proceeded were conducted in writing, or by telephone or videoconference.

Innovative but gradual reopening

Many courts are now cautiously reopening, experimenting with innovative initiatives to provide access to justice while protecting health and safety.

Starting on May 4, 2020, the British Columbia Court of Appeal resumed hearing all matters, urgent or non-urgent, with appeal hearings proceeding by videoconference and chambers matters by teleconference but permitting either to be decided in writing on the consent of the parties. To assist with the transition, Chief Justice Robert Bauman issued guidance on appearing in video hearings and participated in a webinar on May 8, 2020, addressing the changes.  

The Ontario Court of Appeal has allowed appeals that were newly perfected or adjourned as a result of COVID-19 to proceed with an expedited hearing date. To reduce paper filings, Chief Justice George Strathy encouraged litigants to hyperlink factums to the courts’ judgment databases where available, and to key documents filed electronically with the court. This practice is similarly encouraged by the British Columbia Court of Appeal.  

Challenges and innovations in trial courts

For trial courts, a return to normal operations will likely be more challenging, as fully remote or virtual proceedings present difficulties for viva voce witness evidence and active involvement amongst counsel and witnesses. In some cases, these challenges are stacked with the need for circuit courts to provide access to justice across provinces, and a higher proportion of self-represented litigants who may lack both technical and legal expertise.

Even so, the trial courts have been adopting innovative approaches to afford greater access while physical restrictions remain in place.

For instance, the Nova Scotia Supreme Court has taken extensive measures to establish a virtual court, allowing settlement conferences and many civil applications to be heard entirely remotely by phone or video. The court continues to test the process and is considering the potential of expand hearings to matters involving via voce evidence.

The Federal Court is ramping up to resume normal operations tentatively for the end of June, including by identifying matters ready to proceed.

The Quebec Superior Court also announced it would be gradually resuming operations and is currently hearing matters that can be resolved within three hours or less and without witnesses.

The Ontario Superior Court of Justice continues to hear only urgent matters provincewide; however each region of the court has been expanding access for non-urgent matters based on regional capacity and needs.

The Supreme Court of British Columbia has worked with the provincial government to facilitate temporary changes to its rules to allow certain non-urgent matters to proceed in writing in the interim, and recently announced that it is preparing to hear all civil trials scheduled on or after June 8, 2020, (except those requiring a jury), subject to availability of facilities or public health recommendations.

Visible and invisible changes

As access expands, litigants are bound to feel the most visible differences as they engage with the courts, logging on by video or by phone, or encountering strategically placed plexiglass or other physical barriers in courthouses.

There remain issues with physical distancing. Courtrooms are not typically designed for a two-metre distance between all individuals (including judge and court clerk), so even as restrictions ease, many courts, will face challenges with full in-person trials while the threat of COVID-19 persists.

However, one of the most important changes has occurred without much public recognition. As courts have quickly shifted to greater remote operations, registry and courthouse staff have worked tirelessly to transition sometimes outdated systems, and voluminous paper files to allow electronic access and facilitate e-filing.

The flexibility and agility that registry and courthouse staff have shown has provided significant assistance to the courts and to the bar, and will create greater opportunities for delivering justice.

The open court principle, online

Another challenge in the world of virtual justice is upholding the open court principle, a hallmark of Canada’s justice system. The Supreme Court of Canada has long made its hearings available for streaming, but other courts have generally done so in only limited ways, for instance by streaming proceedings in one city to a courtroom in another.

Courts have been moving quickly to change this. For example, both the British Columbia and Federal Courts of Appeal have indicated that access will be provided to members of the public and media upon request, allowing for a truly online open court. If continued, such access will provide greater public participation in the justice system.

It appears that these steps have been quite successful: the court reported that 700 people watched the video hearing conducted in the British Columbia Court of Appeal on March 5.

While there is still much to do, our courts are rising to the challenge to “be kind, be calm and be safe,” adopting new systems to ensure justice is available to all, even in times of pandemic. In many cases, the opportunity is being taken to respond to unmet needs that existed even before the crisis.

It’s likely that many of these changes will remain in place indefinitely, providing long-term benefits to all litigants. Certainly, there is promise of a more modern and accessible justice system taking shape.

Mathew Brechtel is a partner in the intellectual property group of Norton Rose Fulbright Canada LLP. He would like to thank articled student Natasha John for her help in putting this article together.

Photo credit / Chansom Pantip ISTOCKPHOTO.COM

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