June 10, 2020

Wednesday, June 10, 2020, 2:00 p.m.
Room 95*, Supreme Court of Canada

Present

Supreme Court of Canada (SCC)

• Justice Côté (Chair)
• Justice Moldaver
• Justice Rowe
• Justice Kasirer
• Me David Power
• Me Renée Thériault
• Me Barbara Kincaid
• Me Renée Maria Tremblay

Canadian Bar Association (CBA)

• Me Rekha N. Malaviya (Chair)
• Me Vikki Andrighetti
• Me Michael G. Bates
• Me Alan Rankine
• Me Christopher M. Rupar
• Me D. Lynne Watt
• Me Julie Terrien (Staff Liaison)

* This meeting proceeded by conference call.

1. Approval of the Agenda

The agenda was approved.

2. Approval of the June 5, 2019 meeting minutes

The minutes were approved.

3. Follow-up on Matters Arising from Minutes

a. Interventions

Justice Côté advised that the Court is continuing to review the intervention process and is hopeful that it can report further on this issue before this Committee’s next meeting. She also advised that once the Court has completed its review of the interventions process, it still intends to issue a notice to the profession and to conduct a webinar as well.

Mr. Rupar responded that the Canadian Bar Association looks forward to discussing the new interventions process. Also, he reiterated a concern raised in earlier meetings that counsel – whether in private practice or government – find the five minutes for oral argument constraining, because it is hard for them to develop an argument in such a short time. But he said that they appreciate that the presiding judge does extend the time when necessary.

Justice Côté reassured members that the Court is aware of this concern, and is considering it during the review process.

4. New matters

a. Rules amendments

The Court distributed draft Rules amendments in advance of the meeting (for Rules 16, 25–31, 33, 79 and 81). Renée Maria Tremblay explained that with these amendments, the Court is intending to simplify the leave application process: a leave application would therefore consist of the notice of application, lower court decisions and memorandum of argument only. This streamlined process would reduce the volume of material filed but still provide the information that the judges require to decide the leave applications. She added that the Court expects the Rules amendments to come into force in early 2021.

D. Lynne Watt responded on behalf of the CBA that the proposed amendments are appreciated, especially those that streamline the leave application process. She suggested a few edits for the Court’s consideration: to Rule 25(1)(a)(ii) for applicants to include an explanation when they cannot provide formal judgments and orders; and to Rule 25(1)(b)(vi) to clarify that where they cite authorities, applicants must indicate the paragraph numbers from the memorandum itself. She also noted that Rule 25 would no longer require an affidavit. In response, Barbara Kincaid and Renée Maria Tremblay confirmed that the Court is indeed eliminating that requirement, but that under Rule 89 parties can still file affidavits at any stage of proceedings, if necessary.

b. Robing requirements

The Court had distributed in advance of the meeting a joint letter from the CBA’s Women Lawyers Forum and the CBA members of the Supreme Court Liaison Committee. In that letter, members were proposing that the Supreme Court adopt a written policy on gowning that would accommodate lawyers with personal circumstances, such as pregnancy, medical condition or disability. In his response to the letter, the Chief Justice had explained that the Rules of the Supreme Court of Canada simply require that counsel be robed and that the Court provides support and information to counsel, for example, on the website and through the Registry. He had also requested that this Committee add the matter to the agenda for discussion at this meeting.

The Court had invited comments on this issue from The Advocates’ Society. Their comments, which supported the position of the CBA, had been distributed in advance of the meeting.

Rekha Malaviya, on behalf of the CBA, thanked the Chief Justice for his response and the opportunity to address the issue at this meeting. She asked whether the Court might reconsider adopting a policy. She explained that while it may be unnecessary, a policy would be worthwhile nonetheless for the Court to ensure counsel know that they can adapt their attire and to convey a message of inclusiveness to those who must do so. She noted that other federal courts have done so, and the Court noted these comments.

5. Round table discussion on initiatives in response to COVID-19

Renée Thériault advised that out of concern for the health and safety of visitors and employees in the current COVID-19 context, the Supreme Court of Canada Building remains closed to visitors. The Court has also cancelled all public events, as well as guided tours, until further notice. It will continue to follow the directives of public health officials. In the meantime, the Court has also suspended the deadlines set out in the Rules of the Supreme Court of Canada. However, the Court continues its work on case-related matters and is conducting hearings by video-conference in June, for the first time in its history.

Together with the Minister of Justice and Attorney General of Canada, the Chief Justice has also established an Action Committee on Court Operations in Response to COVID-19. The Action Committee includes senior-level participation by federal and provincial governments and the judiciary. It focuses on developing court-specific health and safety guidelines that can be adapted to the needs of individual communities and courts, in particular when conducting juror trials. The Committee is preparing to release national guidelines in the coming few weeks.

Renée Thériault also indicated that the President of the CBA had invited the Chief Justice to join its task force, and Rekha Malaviya conveyed the CBA’s thanks to the Chief Justice for accepting that invitation.

6. Varia

1. Barbara Kincaid explained the many technological requirements of conducting the June hearings by video-conference, on the Zoom platform, including requiring counsel to log in early to the hearing, allowing them to select between speaker or gallery view, providing them breakout rooms to meet separately, etc. She also explained that the Court has not yet decided how it will proceed with the appeal hearings scheduled for the Fall session, but in any event, the Court will be asking for feedback from counsel who appeared in June. Also in advance of the Fall session, the Court will establish protocols for ensuring that hearings proceed as efficiently as possible and without disruption, whether technological or otherwise.

   Justice Rowe added that in the current context, the Court would be looking to other courts of different levels, which are conducting more hearings than this Court, to learn from their experience.

2. Michael Bates mentioned that counsel appreciate the cases-in-brief, as they improve the accessibility of the Court’s work for everyone.

7. End of Meeting

Rekha Malaviya expressed thanks, on behalf of the CBA, for the Court providing this forum for discussion. Justice Côté, in turn, thanked the members of the Committee for their attendance and invited members’ comments at any time throughout the year.

The meeting was adjourned at 3:05 p.m.