May 8, 2006

Present

Supreme Court of Canada (SCC)

• Mr. Justice Binnie (Chair)
• Mr. Justice Fish
• Madam Justice Abella
• Me Anne Roland
• Ms. Louise Meagher (Secretary)
• Ms. Nancy Brooks
• Ms. Barbara Kincaid

Canadian Bar Association (CBA)

• Mr. J. Thomson Irvine (Chair)
• Mr. William Louis Ryan, Q.C. (Vice-Chair)
• Mr. Robert J. Frater (Justice)
• Ms. Sandra D. Phillips
• Mr. Wayne M. Onchulenko
• Me Yves Tourangeau
• Ms. Tamra L. Thomson

1. Approval of the Agenda

The agenda was approved.

2. Approval of the Minutes of May 9, 2005 and business arising from the minutes

The minutes were approved with the following comments relating to last year’s items:

• item 4 (Posting of Factums on the Web): will be discussed under item 7
• item 5 (Publication of Judgments of SCC: Format): Ms. Brooks noted that the reasons now indicate who had written in the court below and the headnotes refer to paragraphs in the reasons. Justice Binnie indicated that there is an ongoing invitation for suggested improvements to the judgment format.
• item 6 (Oral Arguments by Interveners): Justice Binnie nostalgically noted that Sylvie Roussel would not be here this year to give her annual blast on this topic.
• item 7 (Extensions of Time on leave Applications): Justice Binnie informed the committee that the judges had considered the automatic 30 day bifurcation proposal and rejected it. It is always up to a respondent to ask for the motion for an extension of time to be separately treated where there are special circumstances. He also drew the committee’s attention to the recent decision in Roberge v. the Queen [2005] 2 S.C.R. 469 where a motion for extension of time to file a leave application was dismissed. The reasons in Roberge provide guidelines for granting an extension.
• item 8 (E-filing): will be discussed under item 7.
• item 9 (Barristers’ Lounge): Me Roland advised that breakout rooms with telephones are now available and are used mostly after lock-ups. Mr. Irvine said that this is working well.
• item 10 (Other issues): Ms. Kincaid confirmed that, having just that morning figured out what the request was, EST will now be indicated as the time zone for judgment release in all press releases announcing judgments to be issued. Time running during the Christmas recess will be discussed under item 3.

3. Rules and Tariff

a. Computation of time during the year-end recess

Mr. Onchulenko, with some trepidation given the recurrence of the theme, though bolstered by the encouragement of many members of the bar who were pushing the issue, reiterated the bar’s request for time to be suspended during the Christmas break. He noted that this is the practice in the Federal Court, where time does not run for two weeks, and added that if this was too long, even one week would be greatly appreciated. He advised that the problem is particularly acute for counsel living outside Ottawa because shipping time must be taken into account in meeting filing and serving deadlines. Mr. Irvine remarked that in some places, such as Saskatchewan, the courier service is not that good. Justice Binnie commented that there is no need for counsel to wait until the last minute to file, even though it is the tendency, given human nature. He asked the Registrar if she saw any difficulty with the proposal. Me Roland responded that it could result in a slower processing of cases. Ms. Kincaid added that not much is processed anyway in the week between Christmas and New Year so a solution might be to issue a Practice Directive saying that time would not be counted for deadlines set out in the Rules. This could not apply, however, to the deadlines for certain filings, such as for an application for leave to appeal or for a notice of appeal, which are prescribed in s. 58 of the Supreme Court Act. Ms. Brooks offered that it is hard for counsel to rely only on the largess of the Registrar. Mr. Irvine indicated that the bar would support an amendment to the Act. Justice Binnie explained that it is dangerous to open the Act. Justice Abella commented that she would be in favour of the change, considering the minor prejudice to the Court compared to the major benefit to counsel and clients. Justice Fish agreed that it is hard to justify the Court’s past obstinacy on this question. Justice Binnie concluded that the judges present concurred with the CBA proposal and would recommend it to their colleagues.

b. Timing to file books of authorities

Mr. Onchulenko presented a request for a change to the Rules that would allow parties one week more for the filing of their books of authorities, after the filing of their factums. “You are really pushing your luck!” quipped Justice Abella. Justice Binnie responded that if the request was to file the factum and the original book of authorities on time but to delay the filing of the copies of the authorities, this could probably be accommodated in the Registry. Mr. Frater said that the point is to allow parties time to concentrate on the preparation of the factum, so the request is to amend the Rules to delay the filing of the original as well as the copies of the book of authorities. Ms. Brooks wondered if there would be a negative impact on the receiving party, who would get the books late. Mr. Frater responded that they would still get the authorities in plenty of time for the hearing and Mr. Irvine added that he would gladly receive the authorities one week late if he could get one more week to prepare his factum. Me Roland advised that the Court does not receive many motions for extension of time to file books of authorities. Justice Binnie opined that in most cases the authorities should not be voluminous and the preparation of the book should therefore not take much time. Mr. Irvine disagreed, saying that it is the winnowing out that takes time. Justice Binnie responded that in light of experience the “winnowing out” argument is agile but unpersuasive. He nevertheless offered to take it up with his colleagues.

c. Implementation of amended Rules and Tariff

Mr. Onchulenko advised that the bar had only a couple of comments on the proposed revisions to the Rules. The first is that it would be advisable to have a transition provision to cover, for example the new six month limitation period for filing a request to tax. The second was presented by Ms. Phillips and involved what she suspected to be a drafting error leading to an inconsistency between rules 46 and 56, which should mirror each other. Ms. Kincaid suggested that Ms. Phillips contact Ms. Loreti, the director of the Registry and the Court’s Rules expert, who would no doubt be in a better position to help correct any error. All agreed. Me Roland advised that the goal is to have the revisions enacted by the end of June. She asked if the bar had any comments on the tariffs. Mr. Onchulenko responded that there had been discussions about tying fees to cost of living increases or at least reviewing them every few years. This would be considered at a later CBA/SCC liaison Committee meeting if the CBA brought it forward as a definite proposal.

4. Timelines for Intervention

Mr. Frater addressed the question of when is the most appropriate time to require a proposed intervener to apply for permission to intervene in an appeal. He reminded committee members that under the old rules, the motion was due four weeks after the filing of the notice of Appeal and under the new Rules, the motion is made after the Appellant’s factum is filed. He stated that, though there is no consensus in the bar, it is questionable whether the new rule, which he admitted was made at the bar’s request, is much of an improvement. The problem is that, with the new system of fixed hearing dates, interveners sometimes learn only very late in the process whether they will be given permission to file a factum and argue at the appeal. Under the old rules, it was possible for interveners to be granted status earlier and for the Court to fix a date for the intervener’s factum to follow the appellant’s factum, allowing the respondent to respond to all. Justice Binnie suggested that interveners could just apply earlier. Mr. Frater responded that most counsel take advantage of the delay offered by the Rules. Justice Abella asked Mr. Frater if he had a recommendation. He replied that, on balance, he thought the old rule was better. Justice Binnie interjected that he thought the reason for the change to the rule was that it is better for the proposed intervener to know the position of the main parties before deciding whether to intervene. Mr. Frater acknowledged that is true but that on the other hand it would be better for the parties to know who will be intervening so that the parties have ample opportunity to respond to their arguments. Justice Binnie asked if timing was really a problem. Ms. Kincaid advised that 2006 has been particularly difficult from a scheduling and size of case perspective. Justice Fish opined that there did not seem to be any better solution than to work back from the hearing date to set times for filing intervener factums. Mr. Frater said that he would prefer to go back to the old system. Ms. Kincaid offered that Registry staff attempts to determine early in a case whether there will be interveners and, if there are, to push the case to a later date. In conclusion, Justice Binnie suggested that the situation should be monitored to see if this was a continuing problem or an exceptional year.

5. Oral Arguments by Interveners and Parties in As of Right Appeals

Justice Binnie advised committee members that the Court is concerned with controlling whom it hears from. In particular, automatic interveners do not often add much to their written argument and usually start their presentation by saying “I will not repeat…” and then proceed to do just that. Justice Abella agreed. Justice Binnie also said that he thought in many cases a full hour was not necessary for a party to properly present a case in an as of right appeal, given that the issue was normally restricted to a single point of dissent in the court below. Mr. Onchulenko remarked that since there are so few as of rights, full argument should be allowed. Justice Binnie said that even very important questions can be argued succinctly and that the Court is not inclined to reject help when it is offered. Nevertheless, the judges often remark that a long rambling argument confuses rather than clarifies the issue. Me Tourangeau suggested that it is always open to the presiding judge to stop an unhelpful argument. Justice Binnie responded that this is not really true because presiding judges are reluctant to presume that their colleagues feel the same way they do. Justice Fish remarked that, in the U.S. Supreme Court, parties are only given 30 minutes to present their argument. When American judges were questioned by visiting Canadian law clerks as to whether they ever regretted cutting off counsel at the end of this time, they responded “hardly ever!”. He added that, having practised himself for many years he could sympathise with counsel who wanted more time, but he also could confirm that a great sense of accomplishment is attained when hard work is done to successfully focus an argument. Mr. Ryan observed that the judges must put a lot of emphasis on the written argument. Justice Fish said both oral and written are important. Mr. Irvine offered that appearances are also important and it is important to clients, who will likely watch the televised broadcast of the hearing, to know that they are being heard. Justice Abella counselled that clients can be advised that they are being “heard” in writing. Mr. Frater observed that lately the Court has been advising as of right parties in advance that they will be given only 30 minutes to argue, leaving the impression that their issues are less important. Justice Fish said that it is up to counsel to explain to these clients that less time is needed for a single issue case than for a complex appeal. Justice Binnie added that clients should be told that the judges read the material and understand the case before the oral hearing commences. Mr. Irvine asked if committee members should be communicating the message to other members of the bar that “set” speeches are not helpful to the Court. The judges responded yes, though Justice Abella commented that it is probably hard for paying clients to appreciate this.

6. Report on Lock-ups

Me Roland reported that the Court had been holding lock-ups for approximately three years with success, though counsel found the latest one, in the Childs case, long. Ms. Brooks commented that, by the terms of the agreement with the Press Gallery, it should only request a lock-up where the issues are complicated and a lock-up would assist in more accurate reporting. She remarked that the media had not indicated there were any problems and that they would be asked for feedback at a meeting scheduled for June 19. Me Roland added that counsel’s willingness to be candid in indicating whether they favoured a lock-up in a particular case was appreciated by the Court. She also drew members’ attention to her recent decision in Procureur général du Canada c. Procureur général du Québec dismissing a request to tax disbursements incurred in attending a lock-up.

7. Electronic Factums

a. Availability to SCC Judges and Staff

Me Roland informed the committee that the Court’s current practice requiring parties to file a CD-ROM (with PDF and OCR) copy of their factum is working well for judges and court staff, and does not seem to be causing difficulty to law firms to produce, most firms already having the necessary software. Mr. Ryan asked what OCR meant. Me Roland replied that it stood for optical character recognition and rendered the document electronically searchable. Mr. Ryan asked if it is permissible for law firms to link to the SCC web site, where guidelines for preparing electronic copies of the factum are posted. The answer is yes.

b. Results of CBA survey on posting on Internet

Mr. Ryan reported that the CBA now had helpful information showing overwhelming support by the bar for the posting of factums on the Internet. The information comes in the form of two documents, which he handed out. The first is a summary of the responses received by the CBA to an e-mail asking for input from more than 400 CBA members and CBA section heads and the second is a summary of a SLAW on-line survey. SLAW is a co-operative weblog about Canadian legal research and IT. Mr. Ryan tabled the documents and reviewed them for members of the committee. The questions posed in both surveys were organized around the same themes discussed at last year’s Liaison Committee meeting: privacy, copyright and defamation. Although the sample size of the survey was small, the CBA accepted its result as accurate and reflective of members’ views. The only outstanding concern is with respect to the mechanics of protecting privacy interests – particularly in family matters, and to a lesser extent in criminal and immigration matters. Justice Fish asked why there is a greater concern for privacy with respect to posted documents, when the information is available to the public in the paper court file. Mr. Ryan answered that, with electronic, there is far easier access. Me Roland noted that there is a difference between the detailed information contained in the record, and the information usually contained in a factum, which is more easily depersonalized. Mr. Ryan agreed, saying that it would be counsel’s responsibility, rather than the Court’s to remove any sensitive information from a factum that would be posted. Justice Binnie added that the Court would still have to have control so that it did not wind up with sets of eviscerated factums. Ms. Brooks asked if it would be reasonable to ask counsel to provide two copies of a factum: one with personal information redacted. Ms. Phillips added that initials could be used and she assumed that the factums would only be posted after the decision had been rendered. Others on the committee indicated that it would be more useful to have the factums posted when they are filed. Mr. Onchulenko suggested that the Court could routinely post unless it was convinced by counsel not to in a particular case. Justice Abella asked what the practice is in the United States. Ms. Kincaid answered that it is not the Court, but commercial ventures who post. Mr. Onchulenko added that academic institutions also post for free. He also advised that Canada Law Book had approached the CBA about posting factums and the CBA had told them that it would be the Court’s decision to post or not. The Bar would be in favour of posting as long as privacy concerns are handled. Justice Binnie wondered about the defamation question, saying that utterances made in open court are protected in a defamation action, but that those contained in court records may not be. Justice Abella stated that she did not think the Court should be responsible for ensuring factums were not defamatory. Mr. Ryan advised that a colleague had told him that in 35 years of practice he had never seen a defamatory comment in a filing. Justice Abella retorted that he must not practice family law! Justice Binnie concluded by thanking the bar for their work on this and stating that the Court would develop a policy.

8. Result of consultation with CBA members who have appeared before the Court

Mr. Irvine advised the Court that, in the past, the Bar has struggled with getting useful feedback from its members because they are not a unified group. However, this year, a new approach was tried: 400 lawyers, who are CBA members and who have appeared before the Court in the past three years, as well as section heads and representatives from other groups such as prosecution services were consulted on a number of topics. The response was positive. Counsel specifically asked for kudos to be extended to Court staff, in particular Registry staff, who are unfailingly helpful and who treat counsel with courtesy and respect. Mr. Irvine stressed that this means a great deal to counsel, who are often under enormous pressure when they come to the Court. He added that counsel had commented that the acoustics in the Courtroom are bad, that they sometimes have difficulty figuring out or seeing the red light warning system on the podium. Justice Binnie ventured that at $400/hour, they should be able to figure out the signals! In response to a suggestion from Justice Abella, Mr. Irvine agreed that it would be useful for counsel to receive a briefing booklet, which would be more detailed than the instructions they already receive, on what to expect when they come to the Court. Ms. Kincaid suggested that first-time counsel might also plan to come early to reconnoitre.

9. Discussion of SCC/CBA Liaison Committee Mandate

Justice Binnie opened the discussion by asking the CBA if it wishes to have closer consultation on issues that arise from time to time and if so whether this committee is the proper forum. These issues might be different in nature from the intensely practical ones that usually appear on the yearly meeting agenda. Examples are: the appointment process, dealing with self-represented litigants and access to justice. Mr. Onchulenko responded that the bar would like to be consulted and would be in a better position to respond to ad hoc inquiries with their new consultative process. He added that he thought the reason that the committee does not have a written mandate is because it was felt that it would be better not to constrain the work of the committee with strict parameters. Me Tourangeau said that the members of the bar had a broader perspective and did not consider themselves to be belonging to a “Rules and Tariff” committee. Mr. Ryan confirmed that the court could consult at any time by contacting the current chair and not have to wait for the yearly meeting. Justice Binnie indicated that unrepresented litigants are causing concern. He noted that most provinces now have arrangements to help find pro bono representation and he thought it was time to find a similar mechanism for use in the SCC. Ms. Brooks wondered if the bar could use its consultative list to find pro bono or amicus help. Mr. Ryan pointed out that one difficulty is the expense of travelling to Ottawa. Justice Binnie said that counsel could be local and would not necessarily have to come from the jurisdiction where the case originated. Mr. Onchulenko advised that cost would be less if the lawyer who is approached to act is a lawyer already practising in the field in question. Ms. Thomson asked if the Court could give the bar an idea of the scope of the problem and she would then take it to the CBA’s pro bono committee.

10. Modernization of the Courtroom

Me Roland advised that the Court was still attempting to obtain funding for its Courtroom AV/IT project and that the Department of Justice had been supportive in this quest. She informed that, though the Treasury Board Secretariat seemed largely happy with the business case submitted, it had not promised funding. There will be a meeting tomorrow afternoon between TBS and SCC representatives to further discuss the case. She noted that the court is currently working with consultants on a detailed design and she promised that the acoustic problems previously mentioned would be brought to their attention. Me Tourangeau offered that members of the bar could provide feedback. Me Roland accepted his offer.

11. Retrofit of the East Entrance

Mr. Irvine commented that the current East Entrance, being small and congested, does not seem appropriate for an important building like the SCC. He also said that having only one screening machine contributed to the congestion. Me Roland advised that, though there will still only be one machine, the new design segregates the circulation of visitors from employees, which should alleviate some of the congestion, and that a ramp would replace the problematic lift. Justice Fish ventured to suggest that if there were fewer as of right appeals, there would be less congestion. Me Roland also said that construction would begin soon and that the project would take eight or nine months to complete. Ms. Brooks suggested that now might be a good time to install less ambiguous and anonymous exterior signage. Me Roland said that accessibility is a problem at the front entrance.

12. Other issues

Me Roland reminded that there had been some discussion about posting the minutes of the committee. Mr. Irvine said that the bar was in favour of posting as a way to improve accessibility. Justice Binnie expressed the concern that posting might dampen the chatty nature of the minutes. All agreed that chatty was good and that it would be best, if the minutes are posted, that a summarized version be prepared by the CBA. Ms. Thomson added that she likes to get the minutes early, especially where there are items to action.

13. End of Meeting

The meeting adjourned at 18:55 and was followed by a dinner in the Judges’ Dining room. Having managed to organize themselves into a sociable seating plan, the members enjoyed excellent food and an incendiary discussion. Justice Binnie thanked everyone for their hard work and especially the members of the bar for coming to the Court. All left to the tune of “next year, same agenda!”