Monday, June 6, 2022, 4:30 p.m.
Room 95 / videoconference, Supreme Court of Canada
Present
Supreme Court of Canada (SCC)
- Justice Côté (Chair)
- Justice Rowe
- Justice Kasirer
- Me Chantal Carbonneau
- Me Renée Thériault
- Me Barbara Kincaid
- Me Emily Moreau
Canadian Bar Association (CBA)
- Me Alan Rankine (Chair)
- Me Ranjan Agarwal
- Me Christopher M. Rupar
- Me Jean-Simon Schoenholz
- Me Cheryl Milne
- Me Julie Terrien
Regrets
Supreme Court of Canada (SCC)
- Justice Moldaver
- Me Renée Maria Tremblay
Canadian Bar Association (CBA)
- Me Lauren Chu
1. Approval of the Agenda
The agenda was approved on motion of Jean-Simon Schoenholz.
2. Approval of the June 9, 2021 meeting minutes
The minutes were approved on motion of Christopher Rupar.
3. Follow-up on Matters Arising from Minutes
a. Interventions
Barbara Kincaid reported that the Notice to the Profession on interventions was released in November 2021, shortly before the two webinars (one English, one French) were conducted. The webinars followed a Q&A format, with content developed jointly by the SCC and the CBA. The Q&A format was adopted to ensure consistency between the French and English sessions. Justice Côté spoke at both webinars, which were moderated by Joshua Sealy-Harrington and Darius Bossé. The webinars were well received. Alan Rankine reported that the comments he had received on the webinars were extremely positive, with the only concern being that the format did not allow for questions from participants.
Ranjan Agarwal addressed the practice on interventions in general, based on feedback provided by counsel for interveners. There was a consensus amongst CBA members that some reform to the practice was needed. Counsel would like to see the Court return to using the two stage process allowed by Rule 59(2), by which there would be two orders – one granting an intervention and a second that would deal with the question of oral argument. The second order would be issued after the intervener factums have been filed. Under this proposal, the Court would continue to be liberal in allowing interventions but would exercise a gate-keeping function when it comes to allotting time for oral argument.
It is understood that in this model some interveners would not be given time for oral argument, while those that are permitted to make oral argument could be given more than 5 minutes.
The preferred model would alleviate concerns that five minutes is not enough time to allow for effective development of an argument or to fully answer questions from the bench. Other observations were that junior counsel were less effective with the truncated allocation of time. Travel costs, especially when counsel act pro bono, were a factor.
There was a sense that the Court is tightening its practice in allowing interventions, and the CBA suggested that reasons for denying a motion for intervention would be useful.
Finally, there was a suggestion (not supported by the Committee) to turn to the American model where anyone can file an amicus brief.
In response, Justice Côté noted that the current practice of having all interveners appear via Zoom would alleviate the concerns regarding costs. Justice Rowe observed that there was no evidence that the Court had tightened its practice, even if a few motions for leave to intervene had recently been dismissed.
Cheryl Milne commended the practice in appeals with many interveners of hearing the main parties on the first day and interveners on the second.
Justice Côté undertook to take the concerns of the CBA to the Court.
b. Counsel Credits in Judgments
The Registrar thanked the CBA for its proposal regarding the Court’s practice for naming counsel in its judgments, and for conducting a survey on that question with responses from both CBA and non-CBA members. Me Carbonneau reported that the Court agrees with the recommendation to list up to four counsel per party for both main parties and interveners.
This change would be applied going forward, but will not be applied retroactively to judgments that have already been released.
The mechanism for identifying counsel would remain as it is now, with parties providing the Court with the name of counsel who will be appearing at the hearing as required by Rule 71(4). Those counsel will be listed in the judgment.
She noted there was no proposal to amend the Rules pertaining to the appearance of counsel and the authority of the Registrar to manage hearings. The rules will continue to be applied in a flexible manner if possible. Rule 71 will be applied in a strict manner when, for example, there are a large number of parties and interveners presenting oral argument.
Me Carbonneau expressed the hope of the Court that the addition of counsel in judgments will not only recognize lawyers who worked on the file, but also help junior lawyers develop their career and increase the diversity of the lawyers who appear before the Court.
c. Gender-Inclusive Practices
Justice Côté thanked the CBA for the additional information regarding gender neutral practices. She advised the Committee that the Court will not be taking a prescriptive approach regarding pronouns, but will respect the stated preference of counsel. The Court’s current practice of announcing lawyers by first and last name without pronouns or titles will continue, and counsel are invited to refer to the judges as “Chief Justice” or “Justice X” without the use of gendered titles in English. In French, counsel may use “Monsieur le juge en chef,” “Juge en chef,” or “Monsieur/Madame le/la juge X.”
Justice Côté invited Barbara Kincaid to speak to the Court’s practices with respect to the other points raised in the CBA letter:
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Ensure that precedents and writing style guides are gender neutral and gender inclusive.
The SCC Library provides users with a consolidated guide to legal drafting and writing, that includes resources on the use of gender neutral and inclusive language.
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Assess courthouse facilities for safe, accessible washrooms and robing rooms for transgendered persons, particularly non-binary people who do not identify exclusively as men or women.
In the Supreme Court of Canada Building there is an accessible public universal washroom (identified in a neutral manner with a pictogram of a toilet and a wheelchair) located near the East Entrance.
There are three robing rooms available to counsel – one for men, one for women and one universal – which provide lockers and washrooms. In addition, lockers and washroom facilities are found in the men’s and women’s public washrooms off the judges’ gallery. There are 33 lockers for men, 27 for women and 5 in the universal robing room.
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Review internal communications policies to ensure that all emails going in or out of the court include preferred pronouns.
Letters or emails from the Registry use the following: “Dear Counsel” / “Chers Maîtres” for lawyers and “Dear First Name Last Name” or “Cher Prénom Nom de famille” for self-represented litigants. E-mails start with greetings such as “Good day” / “Bonjour.”
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Review hiring practices for staff and clerks to ensure that gender norms do not lead to the exclusion of qualified transgender candidates.
The hiring processes in place do not exclude qualified candidates.
5. Round table discussion on initiatives in response to COVID-19
Justice Côté noted that the Court largely conducted proceedings in a hybrid manner with judges in the Courtroom and counsel appearing by Zoom. In the spring session, we had some appeals with counsel for the main parties appearing in person, and counsel for interveners appearing via Zoom. Justice Côté observed that the Court has adapted well to the conduct of hearing using video technology and encourages counsel to consider virtual appearances. For the time being, interveners will continue to appear by video but counsel for principal parties have the option to attend in person.
Renée Thériault echoed that flexibility has been the key. She noted that the Courtroom adaptations with two benches, Plexiglas dividers and reduced capacity for counsel will remain in place for now. A decision on whether to return to the pre-Covid configuration will be made before October, and will depend on public health guidelines.
The next hearings will be in Quebec City, and the plan is to have all counsel appear in person. For the fall session, the preference will be for virtual appearances, although counsel for principal parties will have the option of appearing in person. The expectation is that counsel for interveners will appear via Zoom.
Me Thériault spoke on the work of the Action Committee on Court Operations in Response to COVID-19 that the Chief Justice co-chairs with Justice Minister Lametti. This work will continue even as health restrictions ease. The pandemic crisis has been a catalyst for change in the legal system, allowing for the clear identification of problems and development of solutions.
Next, the judges spoke on their experience with virtual and hybrid hearings. Originally, Justice Côté had a preference for in-person hearings, but over the last two years came to appreciate the virtues of the video hearings. There is no advantage one way or the other – the Court does not favour counsel who appear in person. Justice Kasirer observed that this new approach has a positive impact on access to justice. Justice Rowe prefers sitting in the Courtroom with his colleagues, but finds that engagement with counsel is not impaired by their appearing virtually.
Chris Rupar spoke about the experience of appearing virtually as opposed to in person. He noted that once into the argument, there is no difference between a virtual or in-person appearance, but he did note that there is an intangible loss by not appearing in person – there is an atmosphere in the Courtroom itself that is not duplicated in the virtual world. Jean-Simon Schoenholz echoed this and hopes that remote appearances will remain optional even for interveners.
From the point of view of the Court administrators, it was observed that the hybrid hearings took more resources to support on the part of Registry and IT than in-person only hearings. This has an impact on the ability of Registry to open files during sitting weeks.
Julie Terrien raised the question of decorum. This was not an issue at the Supreme Court of Canada, since so many rules are in place to govern the virtual hearing, including the requirement to gown and to have a wired, not Wi-Fi, connection to the hearing.
6. Varia
Barbara Kincaid announced that an e-filing portal is under development and should be available for use by the end of the year. Once counsel are registered with the Court, they will be able to file up to five documents at a time on a secure platform. This will be an improvement over filing by e-mail.
7. End of Meeting
The meeting was adjourned at 5:30 p.m., followed by a tour of the Courtroom and a dinner in the Judges’ Dining Room.