Present
Supreme Court of Canada (SCC)
- Mr. Justice Binnie (Chair)
- Mr. Justice Rothstein
- Mr. Justice Cromwell
- Me Roger Bilodeau, Q.C.
- Ms. Louise Meagher (Secretary)
- Ms. Jill Copeland
- Ms. Barbara Kincaid
- Me Nadia Loreti
Canadian Bar Association (CBA)
- Mr. William Louis (Mick) Ryan, Q.C. (Chair)
- Mr. Gregory James Fitch, Q.C.
- Ms. Carole J. Brown
- Mr. John D. Stefaniuk
- Mr. Robert Frater
- Ms. Tamra L. Thomson
1. Approval of the Agenda
The agenda was approved.
2. Approval of the Minutes of May 12, 2008
The minutes were approved.
3. Policy for Access to the Supreme Court of Canada Court Records
Ms. Kincaid presented the final version of the policy, dated February 9, 2009, highlighting the fact that, pursuant to the policy, the main parties’ factums in appeals are now being posted and appeal hearings are being web cast. Interveners’ factums will be posted soon. To date, the process has run smoothly. Counsel are advised to contact the Registry if they are having any difficulty redacting their factums for posting. Ms. Kincaid advised that there has been at least one case (Fulowka) where, due to the necessity to include private information in the factum, it did not make sense to redact and the factum was not posted. Mr. Frater indicated that the Q & A section on the SCC website is very helpful. Ms. Kincaid and Mr. Ryan agreed that the cooperation between the Court and the Bar had greatly contributed to the success of the project. Justice Binnie urged the members of the Bar to continue to communicate with the Court and advise of any problems or suggestions for improvement. Ms. Kincaid informed the committee that she was advised at a JTAC meeting held in December 2008 that the SCC is the first court to adapt the CJC model policy on posting court records and other courts are looking to its example.
4. Rule 60
Justice Binnie advised the members of the Bar that the Court is still considering whether to broaden the scope of rule 60 and is seeking input. Mr. Ryan advised that the Bar is not encouraging an expansion of the Rule, but would appreciate an opportunity to comment on any proposed draft amendment to the Rule. Mr. Frater indicated that it would be a step backwards to amend the Rule such that the stating of a constitutional question becomes necessary in every Charter case. He further indicated that the concern is more about how many pages interveners in constitutional cases are allowed to file, how long they will get for oral argument and whether their filing deadlines will be curtailed. Ms. Brown added that if interveners’ time for oral argument is cut, their page limit should not also be reduced. Justice Binnie said that most judges are of the opinion that 10 minutes focuses the mind better than 15 minutes and recalled Justice Major’s firmly held view that eight minutes is optimum. Justice Rothstein added that ten pages can be more than adequate when various AGs are making similar points. Justice Binnie urged parties to cooperate and coordinate their arguments to avoid repetition. He said it is particularly useful when the first intervener sets out how the interveners are collaborating to cover all the issues without repetition and wondered how to get this message out. Mr. Ryan responded that the CBA is exploring the possibility of offering an interactive web forum where counsel could share best practices on appearing before the Court. He recalled J.J. Robinette’s philosophy that counsel should not be on their feet if they cannot get their message across in ten or fifteen minutes. Ms. Loreti advised that she has begun work on the Rules revision project. She would appreciate input from counsel by the end of July so that she can produce a first draft for the end of September. Her goal is to have the amendments to the Rules finalized by the end of March 2010.
5. Overview Statements on Leave Applications
Ms. Kincaid noted that the proposal to amend the Rules to require parties to include an overview statement in their leave applications is still under consideration. Justice Binnie explained that the Court is having difficulty getting the message across to the Bar that the issue on leave is not whether the court below properly decided the case but whether there is an issue of public importance for the Court to consider. Justice Cromwell suggested that the Supreme Court Advocacy Institute might be of assistance. Mr. Ryan replied that, currently, the Institute is only providing parties opportunities for rehearsing their oral presentations on appeal. Justice Cromwell wondered if the Institute might also be able to call on its expert panel of counsel who have appeared before the Court to assist in other ways. Mr. Ryan said that he would speak to Owen Rees about expanding the Institute’s mandate. Ms. Thomson added that the Institute will be collaborating with the CBA to present an advocacy program this summer during the CBA annual conference in Dublin.
6. Cost Awards on Applications for Leave to Appeal
Justice Binnie recalled that last year’s discussion on costs awards on successful leave applications had been inconclusive and inquired whether the Bar had refined its thinking on the matter. Ms. Brown answered that, though it had been difficult to get much feedback from counsel given the small amounts in issue, the Bar’s view is that in the case of a successful leave application, costs should be awarded in the cause, that is – one case, one cost award. This would obviate the perceived unfairness of an ultimately successful respondent on appeal having to pay costs. She and Mr. Stefaniuk confirmed that to treat the leave and appeal separately for cost purposes is contrary to the practice in the courts below. Justice Binnie could find no support for the proposition that costs to a successful applicant on leave could be awarded as a “finder’s fee” for bringing the Court a good case. He undertook to bring the topic to his colleagues for discussion at their October retreat.
7. Filing Deadlines in Appeals
Mr. Frater addressed the difficulties that parties, in particular Attorneys General, are having when their deadlines for deciding to intervene are cut short. This problem arises mainly when appeal hearings are expedited, as in the recent National Post case. Justice Binnie assured counsel that the Court strives to be reasonable but that it sometimes must advance filing deadlines in order to receive factums in sufficient time to read and consider them all before the hearing. Ms. Copeland explained that the filing schedule is set by working backwards from the hearing date and asked if it would be preferable to shorten the deadline for filing the factum rather than the deadline for intervening? In answer to a question from Justice Rothstein, Mr. Frater indicated that AGs need at least two weeks to intervene. He wondered if the problem is persisting because the threat of refusing oral argument to Respondents who file late is not working. In answer to a question from Justice Binnie about the frequency of the problem, Mr. Frater answered that it had only happened twice recently, but unfortunately it was twice in the same week. Ms. Copeland explained that in these two cases the Court was trying to fit cases into the Spring session rather than putting them over three more months to the Fall session. Justice Binnie concluded by assuring counsel that the Court would do its best to avoid putting AGs in an awkward position.
8. Modified Guidelines for Electronic Filing
Ms. Loreti distributed copies of the new Guidelines for Electronic Filing, with recent changes highlighted. She indicated that most of the changes were required because of the coming into force of the new Policy on Access to Supreme Court of Canada Records. Mr. Fitch presented three questions that have been raised by lawyers’ administrative staff. First – could changes to the Guidelines be highlighted when posted? Ms. Loreti undertook to do so and added that the Rules revision would aim to incorporate many of the Guidelines into the Rules, making the Guidelines shorter. Second – could the Guidelines provide for the possibility of hyperlinks between documents? Ms. Loreti agreed that the Court is working toward allowing hyper linking but that at present the Court’s Electronic Document Management System cannot accommodate it. She asked if the Bar could provide comments on whether, when the time comes, hyper linking should be mandatory or optional. Third – would e-filing result in a reduction in the number of copies of a document that parties are required to file? Ms. Loreti replied that there has been a limited reduction but that a certain number of paper copies of the most consulted documents are still required because the judges and Court staff are more comfortable reading the paper version. Ms. Kincaid added that for archival reasons it is not possible to completely do away with the paper yet. Ms. Brown mentioned that there is anecdotal evidence that the requirement to produce e-copies adds to the cost of an appeal. Justice Binnie ventured that, with new software, it has become easier to produce electronic versions and that most printers now start with an e-document in any event. Ms. Loreti added that anticipated cooperation among court levels on e-filing standards will make it even easier in the future. Ms. Kincaid pointed out that it would have been impossible for the Court to have dealt with the recent BCE case as quickly and efficiently as it did if there had been no e-filings.
9. Electronic Appeal Hearings
With a full year of experience completed, all agreed that e-hearings were running smoothly.
10. Videoconferencing
Mr. Fitch detailed a number of problems he encountered when arguing a case recently via video-conference from Vancouver (room was unsuitable, no lectern, no technician at Vancouver location) and advised that he and Ms. Loreti had discussed them before the meeting. Ms. Loreti apologized for any embarrassment or discomfort to Mr. Fitch and advised that in addition to the usual testing of the connections with Telus, the following protocol for video-conferences would be instituted:
- counsel will be asked to attend at the remote-site the day before the hearing to ensure that the site set-up is satisfactory and that the camera settings are locked in;
- the Court will ensure that the remote site coordinator is a qualified technician;
- the Court will make arrangements with TelAv to accommodate any special requirements.
The Court is committed to providing the most comfortable setting so that counsel only have to worry about their argument. Mr. Fitch thanked Ms. Loreti for her responsiveness. Mr. Ryan thanked Mr. Fitch for his entertaining tale of woe.
11. Telephone calls to counsel prior to the release of decisions on Leave Applications
In response to a question from Mr. Stefaniuk, Ms. Loreti stated that calls are being made to either agents or counsel of record who can be reached prior to the release of a decision, whether on leave or appeal. Mr. Stefaniuk offered the Bar’s assistance, should Registry staff have trouble reaching counsel. Justice Binnie indicated that the calls should be made to both counsel and agents. Ms. Kincaid added that, whereas in the past the sending of the news release announcing a judgment was postponed until all counsel were reached, now the calls and the news release happen simultaneously. Ms. Loreti said that the Court is also exploring enhancements to its Case Management System to provide for automatic e-mails to counsel. Ms. Kincaid reminded counsel that they can subscribe to the Court’s Listserv, which has a very low failure rate (1%–2%). Mr. Ryan advised that, where counsel have an option on their telephone answering system to speak to a live person (usually by pressing 0), that option should be used rather than leaving a voice message.
12. Lock-Ups
Justice Binnie asked if the Bar is encountering any problems with the lock-up practice. Mr. Ryan reported that none had been reported and asked if it was still a pilot project. Justice Binnie responded that lock-ups were now an established practice. Ms. Copeland indicated that there had been two lock-ups last year and two are upcoming, adding that the Media Committee usually grants any request from the Press Gallery for a lock-up in a complicated case, unless any counsel for the main parties disagrees, in which case the request is refused. She advised that the Press Gallery may soon be presenting arguments to the Court to have the policy amended so that counsel would no longer have a veto right. She ventured that refusals from counsel may be related to the cost of travel to Ottawa and the wish to not be blind sided by the media. The counter-argument is, why should counsel have a veto when the purpose of the lock-up is to enhance the quality of reporting? Justice Binnie expressed the opinion that the needs of counsel must have priority and that the needs of the media would be accommodated if this did not result in injury to others.
13. Other Issues
Mr. Ryan brought greetings from Yves Tourangeau, who unfortunately could not attend the meeting, and stated that, because of their opportunity to exchange views with judges and staff of the Court, the members of the Bar who sit on the Committee are the envy of other counsel. He then outlined plans by the CBA for an interactive feature on its website that could be used to inform counsel of SCC practice, for example in e-filing or presenting appropriate intervener arguments. Mr. Stefaniuk added that the tool would facilitate getting feedback from the CBA membership at large and bring the work of the Committee to a wider audience. He also noted that there are many other possibilities such as conference calls, web seminars, on-line CLE, web casts and on-line surveys. Justice Binnie welcomed new ways for exchanging information but noted that it could be problematic if only CBA members and not all counsel have access to the information. Justice Rothstein agreed. Ms. Thomson responded that there may be the possibility of opening up some of the CBA communication vehicles to non-CBA members. Justice Cromwell suggested that the SCC web casting technology could be useful. Justice Binnie said that he would bring the idea to the Judges’ Retreat for discussion. He would also like to explore the companion issue of instituting a Supreme Court Bar, for counsel who have experience before the Court.
Ms. Brown asked for the judges’ opinion on the recent e-appeal hearings. Justice Binnie replied that, since the decision taken after the pilot cases to not use “push” technology, they have been running very smoothly, even though there is a recognition that having electronic documents available in the courtroom is probably more useful in longer trials. Justices Rothstein and Binnie agreed that the judges still want the condensed books in paper format. Justice Binnie agreed with Ms. Kincaid’s view that the electronic documents are most useful for the work done before and after the hearing, adding that e-filing is therefore hugely important. Ms. Loreti added that there would be a case soon where counsel would be “pushing” certain documents to large screens to be installed in the Courtroom. Justice Binnie added that the nature of SCC hearings do not lend themselves very often to such PowerPoint-type presentations.
Ms. Loreti distributed an aid for the calculation of time that would soon be posted on the Court’s website and asked counsel to send her any comments on it by the end of the month. She noted that there have been questions lately about whether provincial holidays count in the computation of time. The answer is yes – time counts whenever the SCC Registry is open. Justice Cromwell hoped that the rota judge would not be subject to a quiz on applying the time rules!
Ms. Loreti reminded counsel to send any suggestions for amendments to the Rules to her before the end of July.
14. End of Meeting
Justice Binnie thanked the members of the Bar for their time in volunteering to be on the Committee. The cooperation and responsiveness of the Bar are very much appreciated by the staff and members of the Court. Mr. Ryan responded that the responsiveness and congeniality of the Court are likewise very appreciated by the members of the Bar.
The meeting adjourned at 18:40 and was followed by dinner in the Judges’ Dining Room.