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History made in Ontario courts: Nation Rise outcome

Friday, May 29, 2020 @ 1:12 PM | By Barry Leon

Barry Leon %>
Barry Leon
The first three articles of this five-part series on the history-making April 17 Divisional Court hearing in the Nation Rise Wind Farm Limited Partnership v. Ontario (Minister of the Environment, Conservation and Parks) 2020 ONSC 2984 judicial review was published in The Lawyers Daily recently.

The hearing was historic because, first, it was virtual (on Zoom) and second, it was in a truly open virtual court, with the “public gallery” hosted on Arbitration Place Virtual’s YouTube channel. While people came and went from the public gallery, at various times over 200 members of the public watched.

Nation Rise demonstrated how virtual proceedings can work well. It was an opportunity for all of us to see how virtual proceedings can be conducted effectively and efficiently. Also, it generated from counsel involved a wide range of valuable insights and tips for others participating in virtual proceedings, whether as counsel or as judge, arbitrator or mediator. Those insights and tips are set out in the first articles in this series.

The Nation Rise judicial review hearing proceeded almost flawlessly, demonstrating marvellously that virtual proceedings can be conducted successfully with planning, with preparation, with some innovation by the judges (or arbitrators or mediators) and counsel, and with strong, independent and professional technical support and services.

As Daniel Urbas observed in his newsletter Arbitration Matters, “the Divisional Court demonstrated the Ontario courts’ ability and willingness to continue to provide timely, uninterrupted dispute resolution despite the impact of the COVID-19.”

Now, about six or seven weeks later, virtual proceedings are more common and more accepted, in courts across Canada and around most of the world, and in arbitration and mediation. Virtual is going to be part of the “new normal” for dispute resolution proceedings.

Ontario Superior Court Chief Justice Geoffrey Morawetz has continued to strongly support virtual court proceedings. He has been among the leaders in the transition in Canada, along with Alberta Chief Justice Catherine Fraser who moved the Alberta courts early and strongly into virtual.

Most courts, including the Supreme Court of Canada, as well as most arbitral tribunals, although not Alberta, are conducting their virtual proceedings on Zoom, using their high-level secured platform. Those balking at Zoom (often based on the common stories about “free Zoom”) may wish to revisit the situation — Zoom has advanced considerably. The features of the various competing platforms vary, some of which will be more valuable in certain types of situations than in others.

It has become clear that what is critical to successful virtual proceedings in most instances is strong, independent, and professional technical support and services. Importantly, this enables the proceeding participants to focus on doing their jobs — hearing and presenting the case.

As the world begins to open somewhat from the restrictions of recent months, those looking forward to the new normal also are looking forward to “hybrid hearings,” which combine virtual and physical in a safe manner.

Divisional Court’s judgment

The Divisional Court released its judgment on May 13, 2020. The court granted the application for judicial review, quashing the decision of the minister of the environment, conservation and parks to cancel regulatory approval of a major wind energy project.

The minister had stated in his determination that construction and operation of the project was likely to cause serious and irreversible harm to the maternity colonies of bats. The issue of bat maternity colonies had not been raised by any of the parties in the Environmental Review Tribunal hearing and was not discussed in the tribunal’s reasons. Nor had it been raised by any of the parties’ submissions to the minister on appeal.

The Divisional Court, consistent with the submissions of all the parties, applied “reasonableness” as the standard of review of the merits of the minister’s decision (following the Supreme Court of Canada’s judgment in Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65 at paras. 23-24).

The Divisional Court held that the minister’s decision was unreasonable and the process by which he reached his decision breached procedural fairness.

This is the fourth of a five-part series. Read part one: History made in Ontario courts: Virtual proceedings on YouTube. Part two: History made in Ontario courts: Counsel’s thoughts on virtual proceedings. Part three: History made in Ontario courts: More thoughts on virtual proceedings.

The Honourable Barry Leon is an independent arbitrator and mediator with Arbitration Place, Arbitrators@33BedfordRow (London) and Caribbean Arbitrators. He was presiding judge of BVI’s Commercial Court (2015-2018) and chair of ICC Canada’s Arbitration Committee.

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