Additional Remarks of The Honourable George R. Strathy, Chief Justice of Ontario concerning the Court of Appeal for Ontario
Opening of the Courts
September 22, 2020
These written remarks are supplementary to my oral remarks at the Opening of the Courts of Ontario on September 22, 2020. Those are available here. My purpose is to report on the activities of the Court of Appeal for Ontario during the past 12 months.
It is fair to say that for the Court of Appeal, as with most of our society, the past 12 months have been dominated by the last 6 months, and our response to the COVID-19 pandemic. I will return to that issue shortly.
Changes in the Court’s Complement
On February 28 of this year, Justice Robert Sharpe retired from the Court of Appeal for Ontario after an extraordinary 25 years as a judge — in fact, his retirement was on the 25th anniversary of his appointment to the Ontario Court, General Division, now the Superior Court of Justice. Justice Sharpe served as a judge of this Court for 21 years and was known for his intellectual rigour, his principled analysis and his restrained approach to the judicial role. A prodigious extra-judicial writer, one of his most enduring works will be his treatise on judging, Good Judgment: Making Judicial Decisions. Justice Sharpe was an outstanding colleague and a great judge who was a role model to many. He will be missed by the court and by the appellate bar.
On April 6th of this year, the Minister of Justice appointed the Honourable Steve Coroza to the Court of Appeal for Ontario. Justice Coroza brings a wealth of experience to the court, having served on the Ontario Court of Justice for four years and the Superior Court of Justice for seven years. He brings particular expertise in criminal law and a reputation as a strong and collegial judge.
The Honourable Alexandra Hoy retired as Associate Chief Justice of Ontario in June of this year, after serving in that capacity for seven years. Fortunately, she has elected to remain a judge of the Court of Appeal, with supernumerary status. On behalf of my colleagues on the Court, I express my gratitude for her wise and diligent leadership. I am personally grateful for the ongoing support, partnership, and counsel that she has provided to me in my first six years as Chief Justice.
The Honourable Michal Fairburn was appointed Associate Chief Justice of Ontario on September 3, 2020. Associate Chief Justice Fairburn was appointed to the Court in July 2017, after serving on the Superior Court of Justice since 2014. Prior to her appointment as a judge, she had a long and distinguished career as Crown Counsel and as General Counsel in the Ministry of the Attorney General. We welcome her to her new role, which I know she will discharge with characteristic passion and enthusiasm.
The Court of Appeal currently has one vacancy in its complement, which we expect will be filled in the near future.
Operations during the COVID-19 Pandemic
The Court of Appeal for Ontario had to rapidly alter the nature of its operations as a result of the COVID-19 pandemic. Between March 17 and April 30, most non-urgent matters were adjourned, and appeals were case managed to determine the most appropriate manner of proceeding.
Some appeals were heard in writing, some were heard through a combination of written and oral submissions via teleconference or video conference, and some were heard exclusively by teleconference or video conference. Beginning in May, the Court began hearing all appeals, regardless of urgency, primarily by video conference, although some were heard in writing or by teleconference.
As conditions changed and as we learned more about operating in the “new normal”, it was necessary to remain nimble and to adapt our procedures to new circumstances. The Court has issued nineteen new or amended practice directions and notices during the COVID-19 pandemic, explaining the procedures and practices we have adopted to safely continue our operations.
Initially, the Court primarily used its already available video conferencing platform, CourtCall, to hear video conference appeals. As a result of feedback from the bar and judiciary, the Court began using Zoom video conferencing as its primary platform for remote hearings. This change allowed us to be consistent with Ontario’s trial courts and with the Supreme Court of Canada, which also adopted Zoom as their primary video conferencing platform for remote hearings. The results have been generally satisfactory, subject to inevitable challenges experienced by some users in some circumstances.
Prior to the COVID-19 pandemic, the Court required parties, with some exceptions, to file hard copies of all materials. With the onset of the COVID-19 pandemic, the Court began requiring parties to file all materials electronically by email or on a USB key. This eliminated the need for physical attendance at the courthouse and allowed judges and court staff to access the materials through the Court’s technology network.
Between March 17 and mid-September, the Court has heard a total of 241 appeals and 286 motions. We released a total of 495 appeal decisions during this time. With the diligent work of our judges and staff, and the cooperation of the bar, we have been able to avoid prolonged disruptions or significant backlogs in case inventory.
Going into September and throughout the fall, we are generally scheduling three panels of three judges each week. In addition, motions will continue to be heard by a single judge every day of each week. This is close to our usual sitting schedule, with the number of appeals only slightly reduced to account for the additional time required for remote hearings.
Depending on the state of the COVID-19 pandemic conditions, and public health considerations, it is the Court’s intention to schedule some in-person hearings in the fall, commencing the week of October 19. This will be done only where the parties consent and where the Court’s schedule and safety considerations permit. Initially, we are identifying longer cases (one day or more) for in-person hearings and will move to half-day cases if circumstances are appropriate. All appeals scheduled for in-person proceedings will proceed by video conference on the scheduled date if conditions prevent the in-person hearing from occurring.
With the support of the Ministry of the Attorney General, we have taken measures to ensure the physical safety of those who work in Osgoode Hall or attend for the purpose of in-person proceedings. Two of our courtrooms have been equipped for in-person hearings with appropriate plexiglass barriers and other safety features to ensure that counsel, parties, observers and judges are protected in a manner consistent with public health guidelines. We are prepared to quickly modify our additional courtrooms for in-person hearings, as required.
The fact that the Court of Appeal has been able to continue to operate at this high level during the COVID emergency is a tribute to our judiciary, and all those who work with us, including our administrative and registry staff, our staff lawyers and law clerks, and the members of the bar who have cooperated with us throughout these difficult times.
Everyone has pitched in to help us to transform ourselves from a court that has traditionally operated in-person to one operating remotely. This is a tribute in particular, to our Senior Legal Officer, Falguni Debnath, and our Registrar and Manager of Court Operations, Daniel Marentic, and their respective staffs, who have worked tirelessly to bring about this transformation.
I would like to specifically acknowledge the extraordinary efforts of many judicial colleagues, as well as our lawyers and administrative staff, who have served on ad hoc committees and working groups to enable us to develop procedures and practice directions to enable us to do our work remotely and safely. Much credit is also due to our law clerks, whose dedicated and creative work enable us to pivot to a new way of working.
During this time, we have received considerable assistance, in the form of both resources and advice and assistance, from the Ministry of the Attorney General. I acknowledge, in particular, the support of former Acting Deputy Attorney General, Irwin Glasberg; Deputy Attorney General, David Corbett; former Deputy Attorney General, Sheila Bristo; current Acting Deputy Attorney General, Beverly Leonard; and Samantha Poisson, Executive Director of the Recovery Secretariat of the Ministry of the Attorney General.
I acknowledge, as well, the extraordinary efforts of the members of the Court’s COVID Steering Committee: Associate Chief Justice Hoy, Justice Ian Nordheimer, Falguni Debnath, Daniel Marentic, Jacob Bakan, and Stephanie Ho. In addition, three special working groups were struck to provide advice and support: the Remote Access Group and Remote Assistance Group, both chaired by Justice Russell Juriansz, and the Ramp-up Group, chaired by Justice Mary Lou Benotto. These working groups, composed of judges, lawyers and staff, gave timely and essential advice to enable the Court to respond to the emergency.
Procurement of a New Electronic Case Management System
Prior to onset of the COVID-19 pandemic, the Court had begun a process to modernize its electronic case management system. In October, following a competitive procurement process, the Ministry of the Attorney General entered into a multi-year contract with Thomson Reuters to modernize the Court’s 30-year-old legacy electronic court record management system. Thomson Reuters is partnering with the Court of Appeal and the Ministry of the Attorney General to implement Thomson Reuter’s C-Track Solution at the Court of Appeal. Never before has it been more evident that the Court of Appeal needs a new case management system so it can have modern and seamless e-filing and electronic record management. The new product, when fully implemented, will allow the court to substantially improve the ease with which records are filed and managed, and improve the court’s ability to more efficiently and effectively serve the public.
This concludes the written supplement to the oral remarks I delivered at the Opening of Courts. It is clear that within the next year, we will continue to have to adapt our practices as conditions change. I am confident that given the tremendous work we have achieved this past six months that, with the continued cooperation of the Ministry of the Attorney General, the bar, and the public, we will continue to be able to meet these challenges with innovative and nimble solutions.