Present
- Chantal Carbonneau (Chair)
- Barbara Kincaid (Secretary)
- Renée Maria Tremblay
- Renée Thériault
- Jeff Beedell
- François Lacasse
- Marie-France Major
- Marion Sandilands
- Sylvie Labbé
- Margaret Truesdale
- Michael Sobkin
- Moira Dillon
- Gib van Ert
- Jean-Simon Schoenholz
- Nadia Effendi
- Chris Rupar
- Gordon Greenwood
- Geoff Langen
1. Agenda
The agenda was approved.
2. Approval of the Minutes of the meeting of March 30, 2022
The minutes were approved.
3. Follow-up from CBA Liaison Meeting
The Registrar noted that the SCC/CBA Liaison Committee met on June 6, 2022. The agenda included three items as a follow up from the 2021 meeting (interventions, counsel credits in judgments, gender-inclusive practices). This was followed by a round-table discussion of the impact of Covid on court operations.
Interventions: Barbara Kincaid reported that the Notice to the Profession on interventions was released in November 2021, and that two webinars (one English, one French) featuring Justice Côté and moderated by Joshua Sealy-Harrington (English) and Darius Bossé (French) were held.
At the meeting, the CBA brought forward some concerns about the practice on interventions in general, based on feedback provided by counsel for interveners. There was a consensus amongst CBA members that the Court should return to the two stage process allowed by Rule 59(2), with two orders per intervention – one granting the intervention and a second that would deal with the question of oral argument, after a review of the intervener factums. Justice Côté undertook to take the concerns of the CBA to the Court.
Counsel credit in judgments: The CBA and the Advocates’ Society had written to the Court requesting a review of the practice regarding the listing of counsel in judgments. The Court agreed with the CBA 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 recorded on the counsel sheet prepared for the hearing and would be listed in the judgment.
The Registrar noted there was no proposal to amend Rule 71, and that the authority of the Registrar to manage hearings is unchanged. The rules will continue to be applied in a flexible manner if possible, although it may be necessary to apply Rule 71 in a strict manner when, for example, there are a large number of parties and interveners presenting oral argument.
Barbara Kincaid provided additional detail regarding the means of identifying counsel.
The counsel sheet prepared for the hearing will show in bold the names of the lawyers making submissions at the hearing. The names of the other lawyers will be listed as well, in regular font. Lawyers who are listed on the counsel sheet but are not speaking are not obliged to appear. If they wish, they can ask for a Zoom link, or to be permitted to sit in the Courtroom. If appearing via Zoom or sitting in the courtroom, they must be robed.
These details will be worked out in advance of the hearing. The names of counsel, and the proper spelling of the names, will be verified as part of the pre-hearing check-in with Registry.
Gender-Inclusive Practices: The question of the use of preferred pronouns had been raised by the CBA at the 2021 meeting, at which the Court requested further information on the issue. A letter was sent to the Court in early 2022, giving the judges time to consider the matter.
At the meeting, Justice Côté advised that the Court will not be taking a prescriptive approach regarding pronouns, but will respect the stated preference of counsel. Counsel may provide the Registry with their preferred pronouns with the notice of appearance.
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.”
Barbara Kincaid spoke to the other points raised in the CBA letter:
- Ensure that precedents and writing style guides are gender neutral and gender inclusive.
Through the SCC Library, users have access to guides that include resources on the use of gender neutral and inclusive language.
-
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.
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. There are 5 lockers in the universal robing room.
There is a change to the process for obtaining locker keys. Prior to the hearing day, counsel will be asked by Registry to confirm which robing room they wish to use. When counsel come to the Court they will obtain their locker key from the Commissionaire at the East Entrance. When they leave, they must return the key to the East Entrance. This applies for both SCC and Federal Court hearings.
- 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.”
-
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.
Round table discussion on initiatives in response to Covid-19: The Registrar reviewed the Court’s practice over the last year. Hearings were conducted in a hybrid manner with judges in the Courtroom and counsel appearing by Zoom. In the spring session, there were some appeals with counsel for the main parties appearing in person, and counsel for interveners appearing via Zoom.
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.
Renée 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. The pandemic crisis has been a catalyst for change in the legal system, allowing for the clear identification of problems and development of solutions. The work of the Action Committee will continue even as health restrictions ease. Membership (currently Chief Justices and Attorneys-General) will be broadened to include court administrators.
E-filing portal: Barbara Kincaid reported that the development of the first phase of the e-filing portal is going well. It should be available for use by the end of the year. The functionality of this phase will be limited to registration of counsel and filing of documents. 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. File size should not be an issue.
In future phases, parties will be given enhanced access to the Court file and, we hope, a mechanism for service will be available.
4. Varia
Observing the benefits of appearing in-person, Margaret Truesdale asked whether the policy of having interveners appear via Zoom will continue once the pandemic restrictions are lifted. The Registrar reiterated the advantages of virtual hearings, in terms of cost, accessibility and ease, but undertook to relay the concerns to the Court.
5. Next Meeting
The next meeting will be held on Wednesday, September 21, 2022 at 10:00 a.m. via Zoom.