Court of Appeal Resuming In-Person Hearings – Will Things Ever be the Same?

Sarah Naughton
Posted November 8, 2021 Category: Businesses, Individuals/Families, News & Updates

The Ontario Court of Appeal recently released a Tentative Model for Return to In-Person Proceedings on October 12, 2021, revealing that the Court is planning for a return to in-person hearings commencing today (November 8, 2021). The announcement, which contemplates only a partial return to in person operations, has left many lawyers re-visiting whether to expect Court proceedings to return to their pre-Covid state in the near future.

Notwithstanding the Court of Appeal’s plan for the resumption of in-person proceedings for select matters, the Court of Appeal has indicated that some COVID-era rules will remain in effect (at least for the time being), including, among other things, screening, masking and plexiglass barriers. E-filing is also planned to continue. Perhaps most significantly, in-person attendance will be limited to counsel and self-represented litigants. Clients, members of the media, and other observers would continue to be required to view proceedings via Zoom. Counsel would not be obligated to attend in person, however, and would not be required to provide a reason should they choose to attend virtually. Similar to the general resumption of Superior Court of Justice operations in 2020 (discussed here), criminal matters are to resume in person prior to civil matters.

The proposed ‘hybrid’ electronic/in person system certainly offers some potential advantages. For instance, of course, non-residents of Toronto would no longer be required to travel hours to attend the Court of Appeal as they did in the past, potentially saving significant time and expense. That said, alongside the many benefits are also potential downsides. It is unclear, for instance, how keeping virtual measures in place may affect self-represented litigants, particularly those who are older.

What is clear, however, is that the release of the Tentative Model serves as a reminder to litigators that they must remain prepared to return to in-person trials, hearings and/or other matters on relatively short notice (do not throw away your robes yet). The Tentative Model was issued only about one month before its proposed implementation, and it is not clear at this time how much notice will be provided to counsel/litigants with anticipated proceedings chosen to proceed in person. Having voluminous documentation to be converted from electronic records to bound documents could prove challenging without a plan in place, as would planning to act for multiple matters in different locations scheduled for the same day if one is unexpectedly scheduled in person.

Only time will tell how, exactly, a return to ‘normal’ (or lack thereof) may affect the justice system. The hesitancy to remove all Covid-era measures at this time certainly suggests that there may be potential for certain measures to become a permanent fixture of our system. In the meantime, however, for counsel who have upcoming proceedings in the Court of Appeal, it may be prudent to begin planning for how to shift gears should a matter be selected to proceed in-person.

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Sarah Naughton
Posted November 8, 2021 Category: Businesses, Individuals/Families, News & Updates

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