Monday, June 5, 2023, 4:30 p.m.
Room 95 / videoconference, Supreme Court of Canada
Present
Supreme Court of Canada (SCC)
- Justice Côté (Chair)
- Justice Rowe
- Justice O’Bonsawin
- Me Chantal Carbonneau
- Me Stéphanie Bachand
- Me Renée Maria Tremblay
- Me Barbara Kincaid
- Me Emily Moreau
Canadian Bar Association (CBA)
- Me Julie Terrien
- Mr. Christopher M. Rupar
- Ms. Lauren Chu
- Mr. Jean-Simon Schoenholz
- Mr. Jeff Beedell
- Ms. Vikki Andrighetti
Regrets
- Mr. Alan Rankine (Chair)
1. Approval of the Agenda
The agenda was approved.
2. Approval of the June 6, 2022 meeting minutes
The minutes were approved.
3. Follow-up on Matters Arising from Minutes
a. Interventions
Justice Côté advised the Committee that, following last year’s meeting, she had taken the question of returning to the two-step process for interventions to the Court. The Court will maintain the current process of granting leave to intervene and time for oral argument at the same time. The allotted times for oral argument (five minutes for interveners granted leave to intervene and ten minutes for interveners as of right/attorneys general) will also remain unchanged.
Me Schoenholz expressed that concern has emerged among CBA members relating to the mandatory Zoom appearance policy for interveners at hearings. More specifically, concerns relate to the impact on collegiality – the opportunity for counsel to come to the Court in person, to be in the robing rooms among other appellate counsel and senior counsel and to meet people from across the country. Also, there is concern that the policy sends a message to interveners that perhaps undermines or downplays the importance of their contribution to an appeal. It is perceived that this has a disproportionate impact on more junior members of the bar. More practically, Me Schoenholz explained that interveners on Zoom do not always see the facial expressions or body language of the judges, as the camera only turns to a judge if he or she says something. This could lead to lost opportunities for counsel for interveners to pick up on concerns about issues or particular points and respond to those in their submissions. The CBA appreciates that having interveners appear by Zoom is an access to justice issue, as it evens the playing field, but members feel making it optional opens up access to the Court. A lot of interveners are represented pro bono meaning counsel may be picking up the cost for travel to the Court, so access to justice may not be as big of a concern as it is perhaps perceived. There is a request by the CBA that the policy be reconsidered and that the Court consider the possibility of making remote appearances optional for interveners.
Mr. Rupar raised the point that appearing at the Court may be a once or twice in a career opportunity for counsel to take in the atmosphere of the Court. He agrees that discussion between counsel before a hearing and during breaks is also important.
Justice Côté noted that when appearance in person was optional, it was felt by some that it was unfair because if they were appearing on Zoom and their opponent was in person, the opponent might have an advantage. Justice Côté expressed that there is no advantage to one method or another, and it does not make a difference in the way the Court considers a file. Me Schoenholz advised that this is less of a concern for the profession, as it has adapted to virtual hearings.
Ms. Kincaid responded that the Court will be looking at making changes in the Courtroom to improve the views on Zoom, in order for those appearing remotely to be able to see the full Court and to provide options for counsel to customize their view on the screen. She also noted that there can be issues with large hearings that involve many interveners: while the Court can accommodate 100 people on Zoom, it cannot accommodate 100 people in the Courtroom.
4. New Items
a. Electronic Filing Portal
Ms. Kincaid reported that from the perspective of the Court, the portal has been very successful, with 500 users and 3,500 documents filed as of May 31. It is also working well for self-represented litigants, and few transactions have been denied. Members were advised that Registry will not respond to emails containing filings that have already been submitted through the portal. In addition, Ms. Kincaid reminded the Committee that sealed material cannot be filed via the portal, and that counsel should contact the Registry if they must file sealed or confidential material, as Rule 19.1 still applies in these cases.
Future phases of the portal will allow for counsel and litigants to have a registration system (user ID and password), as well as the ability to serve documents via the portal.
Mr. Rupar expressed that CBA members have provided only positive feedback regarding the portal.
b. Rules amendments
Ms. Kincaid informed the Committee that there will not be many amendments, with the main amendment being to Rule 19 (filing of documents) in order to add the obligation to file via the portal. In addition, it is proposed to modify the filing deadline and set out that a document will be considered filed if it is filed by 11:59 p.m. Eastern time. Other proposed amendments were reviewed: notices of appearance will be required to be filed one month ahead of a hearing, and it is proposed to eliminate filing fees.
Me Schoenholz asked whether the deadline for serving documents will remain 5:00 p.m. or whether this will also change to 11:59 p.m. Ms. Kincaid advised that the question will be considered.
The Court invites comments from Committee members on proposed amendments by July 7, 2023. It is anticipated that the amendments will come into force in 2024.
c. Pronunciation of counsel names
Mr. Beedell explained that CBA members have expressed that names are identified as a core aspect of one’s identity, particularly for racialized minorities, immigrants and Indigenous persons. The impact of mispronunciation at the start of a hearing can be important. Most of the hearings at this Court are webcast and mispronunciation can be, for some, more than just embarrassing. The Court invites counsel to identify pronouns, and in the same vein, assuring correct pronunciation promotes inclusivity. CBA inquired as to the current practice at Registry, as it appears certain steps are taken once draft counsel sheet is prepared to clarify pronunciation. Mr. Beedell noted that this issue is raised more as a leadership point than as an issue that needs to be addressed, but to the extent there is a practice at the Court, that could perhaps be published and set as an example for others, would be a useful role. The Supreme Court of Canada practice is for Registry to provide a phonetic pronunciation of counsel names to the judges ahead of the hearing.
d. Expanded membership
Justice Côté advised that the Court considers it to be appropriate to expand formal consultation with the bar by inviting two other organizations: the Advocates’ Society and the Federation of Law Societies to join this Committee.
Ms. Chu highlighted that the CBA represents 37,000 members and 8,000 of those members who appear before the Court are consulted on issues that are raised with the Committee. Me Schoenholz notes that there is a certain amount of overlap between the CBA and the Advocates’ Society in terms of membership.
The invitation will go to the other organizations, and once accepted, draft terms of reference will be developed and forwarded to all.
5. Varia
Ms. Kincaid informed the Committee that the Courtroom will be returned to its normal layout over the summer, with the judges returning to a single bench. Plexiglas dividers and the temporary podium will be removed, and more monitors and cameras will be installed. It has also been proposed to return all of the benches for the public and the counsel tables to the Courtroom. The process for having guests for counsel by requesting tickets will be reinstated, and the process of members of the public applying for tickets will continue. There will be a limit on public spectators, but the Court has the capacity to put in place rotation systems or an overflow area for large hearings.
6. End of meeting
The meeting was adjourned at 5:30 p.m., followed by a dinner in the Judges’ Dining Room.