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COVID and the (Future of) Law

This is a strange topic for strange times. We are seeing issues and behaviour from, and with, the courts we haven't see before. I blame COVID, social media and living too long ;-).

*** Supporting Ontario's Recovery Act, 2020 [modifies tort law re COVID]

. Reference re Section 6 of the Time Limits and Other Periods Act (COVID-19)

In Reference re Section 6 of the Time Limits and Other Periods Act (COVID-19) (Fed CA, 2020) the Federal Court of Appeal considered a jurisdictional dispute between Parliament, the federal executive government and the federal court. The issue involved a COVID statute that suspended statutory limitation periods and federally court-established time limits during the epidemic, and whether it overrode some court practice directives (also COVID originated) relating to the latter, many of which the federal executive government were party to:
[4] The Attorney General’s position is that section 6 suspends retroactively all "“time limits…established by or under an Act of Parliament”" during the March 13-September 13 period and that "“orders and directives issued”" by the courts, including this Court, concerning time limits or setting deadlines for procedural steps are ousted by section 6. For example, in the view of the Attorney General, an order of this Court expediting a specific proceeding for reasons of urgency or for public interest reasons would no longer be valid, with retroactive effect.

[5] The logic behind the Attorney General’s position would make it applicable to this Court’s Practice Direction, Notice to the Parties and the Profession: Gradual Phase-out of Suspension Period: COVID-19, dated June 11, 2020 which allowed certain proceedings to progress towards a hearing on the merits. According to the Attorney General’s position, that Practice Direction, a later Practice Direction dated September 1, 2020 concerning time limits, and decisions made under them in specific cases are no longer valid, with retroactive effect.

[6] For the following reasons, it is necessary for this Court to provide clarity under Rule 54 as to the applicable time limits in pending proceedings before it.

[7] This Court has the power to provide directions under Rule 54 in response to a party’s unilaterally asserted position: see, e.g., SNC-Lavalin Group Inc. v. Canada (Public Prosecution Service), 2019 FCA 108. This Court also has the jurisdiction to do so under its plenary power to regulate and address any threat to its practices and proceedings: Fabrikant v. The Queen, 2018 FCA 224 and cases cited therein.

[8] The issuance of a direction under Rule 54 [SS: "Rule 54 - A person may at any time bring a motion for directions concerning the procedure to be followed under these Rules."] and pursuant to the Court’s plenary power is required in this case. Many judgments, orders and directions of this Court have set time limits. The Attorney General’s position, if correct, would reverse them.

[9] The Attorney General’s position purports to affect ongoing cases in which he, Her Majesty the Queen in Right of Canada and the Department of Justice are involved. The Department of Justice is almost always counsel of record for Her Majesty the Queen in Right of Canada and the Attorney General of Canada. The Attorney General represents numerous federal boards, commissions or other tribunals that are parties to proceedings in this Court. A rough estimate is that the Department of Justice is involved in at least two-thirds of the proceedings in this Court. The Attorney General’s position calls into question orders, directions, judgments and other actions made by this Court in specific files involving the Department of Justice. Further, it raises questions about the applicable timelines in all of the Court’s other specific files.

[10] The uncertainty and confusion created by the position taken by the Attorney General affects the core administration of matters that come before the Court and many of its decisions. In order to clarify the situation for the benefit of all parties, the issuance of a direction under Rule 54 and supporting reasons are required.

[11] The Court directs that the Attorney General’s position concerning the interpretation and effect of section 6, in so far as it extends to the time limits under the Rules and orders made thereunder, is incorrect in law and should not be followed. The Federal Courts Rules, S.O.R./98-106 and this Court’s Practice Directions, judgments, orders and directions remain in full force and effect.
. Holukoff v. Fenby

In Holukoff v. Fenby (Div Ct, 2020) the Divisional Court considered and granted a landlord motion to except tenants from the COVID-related order of Chief Justice Morawetz that suspended enforcement of eviction orders for the duration of the crisis. The court summarized the factors to be taken into account from other similar cases:
[37] In Neumann v. Anderson, 2020 ONSC 3518 (Sup. Ct.), at para. 46, Broad J. summarized the considerations that have emerged from the case law on these motions:
I find that the following principles may be drawn from the foregoing review of the Eviction Moratorium and the relevant case law:
(a) the intent of the Eviction Moratorium is to prevent evictions during the pandemic even though it could be expected to cause significant economic disruption and adverse financial effects. Thus, evidence of significant economic hardship to the landlord and resulting unfairness, viewed conventionally, will not by itself support an order that an eviction proceed;

(b) the interests served by the Eviction Moratorium are societal and directed towards the maintenance of existing shelter arrangements for individuals to assist in preventing the spread of COVID-19 during the pandemic;

(c) the Eviction Moratorium is not restricted to tenants who would otherwise be evicted for non-payment of rent in order to protect those who have lost income due to COVID-19 but applies to all evictions without limitation;

(d) on a motion to permit an eviction to proceed notwithstanding the Eviction Moratorium, the onus is on the landlord, as the moving party, to establish the existence of truly urgent and compelling circumstances which would justify overriding the societal interest that persons continue to shelter in place in order to prevent the spread of COVID-19, in the particular circumstances of the case;

(e) although the categories of urgent and compelling circumstances which may justify an order permitting an eviction to proceed are not closed, ordinarily they will involve illegal acts by the tenant or threats to health caused by the tenant; and

(f) a balancing of the concerns of the tenant and the landlord will be carried out primarily in the context of the societal objectives of the Eviction Moratorium directed towards the prevention of the spread of COVID-19 rather than focussing on economic disruption or economic hardship to the landlord, or conventional understandings of unfairness from a financial perspective.
. Canada v. Cameco Corporation

In Canada v. Cameco Corporation (Fed CA, 2020) the Federal Court of Appeal expressed concern about the conduct of a lower court judge in including much unprocessed evidence in their ruling, in a "factual data dump":
[5] The Tax Court Judge devoted the first 197 pages (570 paragraphs) of his reasons (which in total were 282 pages long) to a brief three paragraph introduction followed by a description of the witnesses and a recitation of various parts of the evidence. This recitation included several excerpts from various documents, excerpts from the transcript and detailed charts from the experts’ reports. Despite the lengthy description of the evidence, there is very little, if any, analysis of this evidence and no indication in these first 570 paragraphs of how any particular piece of evidence is relevant or necessary for the issues that were before the Tax Court. This lengthy dissertation is comparable to the "“factual data dump”" described by the Ontario Court of Appeal in Welton v. United Lands Corporation Limited, 2020 ONCA 322, at paras. 56 to 63. I agree with the comments of the Ontario Court of Appeal as set out in those paragraphs.

SS: The passage that the court refers to from Welton is quoted here:
[56] I conclude by expressing a concern about the length of the reasons for decision in this case, which is reflective of an unfortunately growing trend, of which this is not the worst example, but it is the one before us.

[57] Trial judges attend to the evidence in light of the relevant law, listen to it and think about it, draw appropriate inferences, distill the key evidence, make the factual findings, apply the law to the findings, and communicate the basis for the decision to the parties through the reasons. Of these various tasks, simply being present to receive the evidence is only a trial judge’s first step on the path to the decision.

[58] More specifically, in their reasons trial judges identify the key issues; find the facts relevant to the issues; assess credibility and reliability where there is conflict; set out the chain of reasoning; make the decision; and then write the reasons to clearly communicate the decision. All of this is necessary for the reasons to be of acceptable quality and for there to be a meaningful right of appeal. (All of these elements are present in the reasons in this case but are somewhat hard to discern in the expanded text.)

[59] Note that in setting out these essential tasks I have reversed the customary sequence in decisions, in which the recitation of facts precedes the statement of the issues. The problem I wish to highlight occurs precisely there. It makes good narrative sense to inform the reader by setting the context first, which involves telling the underlying story briefly. But the real marshalling of the facts according to their relevance and salience is only possible when the trial judge has identified the live issues. In short, factual determinations and descriptions should be issue-driven.

[60] It is important for trial judges to focus the analysis on the live issues that will decide the case. Helpful guidance can be found in the somewhat analogous function that trial judges perform in crafting criminal and civil jury instructions: “The obligation to review the substantial parts of the evidence and relate it to the issues that ripen for decision by the jury imposes no duty upon the trial judge to review all the evidence. The role of the trial judge is to decant and simplify” (internal citations omitted): R. v. Saleh, 2013 ONCA 742, at para. 142, per Watt J.A. There is, to emphasize, no need to recite all of the evidence, even the irrelevant, or to refer to every argument made by every party, no matter how unhelpful: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at paras. 11-12, 35-57; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 128.

[61] Appellate courts see reasons for decision that do not address the evidence and the arguments and are criticized as conclusory, on the one hand, and decisions that leave nothing out, on the other hand. The task of a trial judge is to find the golden mean, to “decant and simplify,” to synthesize the evidence and make the necessary findings; the task is not to be a court reporter.

[62] Many overly long decisions, including this one, contain what I would call a “factual data dump.” Pages 5-79 consist of a witness-by-witness account of examination in-chief, cross-examination, and re-examination. The analysis of the evidence starts at para. 394 on p. 79 and it repeats some of the evidence previously reviewed, adding to the length.

[63] Perhaps this emerging style is artifact of electronic note-taking by judges, but it is not helpful and can be confusing. A blizzard of words can obscure. Digesting unduly lengthy reasons consumes far too much time because every word must be read by the parties, by their counsel at great expense, and by appellate courts. A data dump does not constitute fact-finding. It is an extended ‘note to self’ best kept to oneself because it hinders the efficient and economical communication of judicial reasoning.
. Teksavvy Solutions Inc. v. Bell Media Inc.

In Teksavvy Solutions Inc. v. Bell Media Inc. (Fed CA, 2020) the Federal Court of Appeal considered multiple intervenor motions, and in so doing renders some desperately useful insights into changes required in the practice of litigation:
[3] These days, many courts have been challenged by the COVID-19 pandemic. In response, they have had to find new ways of doing old things. For the first time, some courts are receiving electronic documents, are hearing cases through online video-conference, and are determining disputes on the basis of written materials alone.

[4] These things are largely old hat for the Federal Courts. For us, the pandemic has merely accelerated the pace of reforms we have been working on. For several years, we have been increasingly open to receiving and working with electronic documents. For even longer, we have offered video-conference hearings instead of in-person hearings. For even longer still, we have determined most motions on the basis of written materials alone. That often allows us to provide informal advice and guidance, particularly to unrepresented litigants, on how to progress their cases to hearing.

[5] Six years ago, the Supreme Court urged all participants in the justice system—but most particularly courts—to fashion new procedures and adopt culture change to make the justice system more efficient, faster and less expensive: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. Although we had already done much to improve our procedures, we responded to that cue and quickened the pace of reform. So in uncontroversial matters where facts are not in dispute, we now often allow informal letters requesting relief rather than bulky formal motion records: see, e.g., Forestethics Advocacy Association v. Canada (Attorney General), 2014 FCA 182 at para. 9. We have honed our ability to dismiss proceedings at an early stage that are doomed to fail, allowing us to devote our resources only to arguable matters: see, e.g., Rock-St Laurent v. Canada (Citizenship and Immigration), 2012 FCA 192, 434 N.R. 144 and Lee v. Canada (Correctional Service), 2017 FCA 228 (Rule 74); Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250, [2014] 2 F.C.R. 557 (interlocutory motions to strike). We have fashioned a broad array of new, innovative tools to curb and prevent abuses: see the list in Fabrikant v. Canada, 2018 FCA 224 at para. 26 and Fabrikant itself. We have regulated abusive litigants more closely and have liberalized the test for declaring litigants vexatious, freeing up scarce resources for others: Canada v. Olumide, 2017 FCA 42, [2018] 2 F.C.R. 328.

[6] In these motions, another recent innovation was on display: the use of brief and pointed case management directions to focus and improve the quality of submissions.

[7] Traditionally, a court faced with a dispute is expected to be sphinx-like and silent, expressing no views until all submissions are in. Long ago that approach worked and litigants did not need to labour long to bring their dispute to a hearing. On any legal point, there were at most only a few leading cases, chosen by learned editors and published in law reports.

[8] But today, the law has become more accessible but less ascertainable. After just a couple of keystrokes, a litigant can find over a hundred cases on intervention, uncurated by an editor. They must be reviewed and sifted. Time runs and costs mount. And for what purpose? Just to tell the court about the law of intervention—law the court already knows well.

[9] In certain well-trodden areas of law, the Court does know the law. So why shouldn’t it just announce the law at the outset, inviting the parties to correct or supplement it if necessary? There are many ways this can be done. One way is to issue a written direction at the outset of a dispute setting out preliminary views of the law. That is how this Court proceeded in these motions.

[10] At an early stage in this appeal, three parties filed motions to intervene. The Registry acted swiftly, bringing the motions to the attention of the Court before all submissions were received and before other intervention motions were brought. In response, this Court issued a written direction to assist the three who had already moved and others who were thinking of moving. The direction informed the parties about certain key features of this Court’s law on intervention. Those who had already filed their motions could revise or supplement their submissions by informal letter in light of the direction.

[11] The direction warned potential interveners that our approach differs from that of some other courts. We have strict criteria governing leave to intervene in Rule 109 and we insist they be fulfilled. Unlike some other courts, for reasons of judicial economy we do not admit all who apply to intervene. This is especially so if most favour one side of the debate. We do not want to create the appearance or the reality of a court-sanctioned gang-up: Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 174, 414 D.L.R. (4th) 373; Zaric v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 36 at para. 12; Atlas Tube Canada ULC v. Canada (National Revenue), 2019 FCA 120 at para. 12. We also warned potential interveners that, if admitted, they will have to take the issues set by the appellant and as disclosed in the reasons of the Federal Court and neither add to them nor add to the evidentiary record: Rule 109; Tsleil-Waututh Nation at paras. 54-56; Canada (Attorney General) v. Canadian Doctors for Refugee Care, 2015 FCA 34, 470 N.R. 167. We reminded them that we are running a court of law, not a court of policy, and, still less, a legislature, and so those who want to make freestanding policy submissions should wander down the street to lobby a politician for legislation: Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 151, 474 N.R. 268; Atlas Tube at paras. 4-12.

[12] By announcing the law in this case in advance without closing our ears to correction and supplementation, we received not a dry recital of law already known to the Court but rather focused submissions on the real issue: how the moving parties’ submissions would further the Court’s practical consideration of the issues. By telling them in advance what we want, we probably ended up with better interveners.
. Craft Acquisition Corp. v. City of Toronto

In Craft Acquisition Corp. v. City of Toronto (Div Ct, 2020) the Divisional Court set out a typical 'COVID era' case conference memo so litigants may know what to expect in these times of rapid change:
[1] This endorsement reflects a case management teleconference held on June 10, 2020.

[2] The two motions for leave to appeal the decision of the Local Planning Appeals Tribunal (“LPAT”) dated July 11, 2019 (2019 CanLII 64645) shall proceed before a single judge of the Divisional Court on July 20, 2020 for an estimated 1.0 day. The hearing shall proceed by videoconference using ZOOM. The court will provide the parties with the videoconference link by email in due course.

[3] Neither counsel nor the court shall gown for the hearing.

[4] These motions were scheduled to proceed on March 9, 2020. They were adjourned on consent to await an LPAT decision in related proceedings. That decision was released on May 28, 2020, and the parties now wish to proceed with the motions for leave to appeal. There are two motions for leave to appeal arising out of the same LPAT decision. Both motions shall be placed before one judge and shall be argued together as that judge directs.

[5] All materials have been filed for these motions already. The parties need to render these materials in pdf format for delivery to the court for the hearing. Counsel for CNR/TTR shall establish a password-protected download-only electronic drop box from which all case materials may be downloaded and shall provide the court with the URL and password by June 26, 2020.
(a) All documents other than factums shall be uploaded to the drop box in pdf format.

(b) Documents should be labelled in a manner that identifies them clearly for members of the panel so that it is not necessary to open the document to understand what it is. Pages should be numbered sequentially within each pdf. If this is not practical, given the current state of the documents, then individual documents should be uploaded to the drop box in pdf form, so that each document is clearly labelled, enabling the court to find documents quickly during the course of the hearing.

(c) Factums are to be filed in both pdf and Word versions. Where possible, the factums should contain hyperlinks for authorities and, if possible, hyperlinks to a “Factum Compendium”, described below.

(d) Books of authorities containing the full text of authorities should not be uploaded to the drop box. However, citations to cases in the factums are to provide, if possible, a hyperlink to the CanLII version of cases. The only exceptions to this principle are authorities not available on CanLII, such as excerpts from textbooks, foreign law, or Canadian decisions not reported on CanLII: these should be collected in a small brief of unreported authorities and filed electronically.

(e) Parties may file a “Factum Compendium” containing single pages or brief portions of cases cited, and brief portions of evidence from the record referenced in the factum, hyperlinked from the factum. Where portions of cases are included in a compendium, the title of proceedings and headnote should be included as well. Where portions of the record are included in a Factum Compendium, the first page of the document and identification of where it may be found in the record should also be provided. The only exceptions to this principle are authorities not available on CanLII, such as excerpts from textbooks, foreign law, or Canadian decisions not reported on CanLII: these should be collected in a brief of authorities and filed electronically.

(f) The parties shall file their agreement on the disposition of costs, or, if the parties have not agreed as to costs, then each party shall file its bill of costs and costs outline and any brief supporting materials relied upon in respect to costs. The court does not open costs materials until the conclusion of the hearing.

(g) The parties shall file counsel sheets showing all counsel appearing on the record, with time estimates for each counsel who will speak during the hearing. Counsel shall agree among themselves on the division of time; if counsel cannot agree then they shall seek further case management direction from the court.

(h) All parties are permitted to (but are not required to) file the following additional documents (in addition to documents permitted under the Rules):
(i) A version of their previously filed factum with hyperlinks to cases and/or evidence;

(ii) A Factum Compendium, described above; and

(iii) A compendium for oral argument, containing excerpts of evidence and authorities to which counsel intends to refer in oral argument.
(i) All documents for use in the hearing are to be uploaded to the drop box by June 26, 2020, except that compendiums for oral argument, counsel sheets and costs materials may be uploaded by July 16, 2020.
[6] The court has endorsed its fiat on this endorsement this day; the unsigned version distributed to the parties today has the authority and effect of the signed version, a copy of which will be provided to the parties in due course after the suspension of ordinary court operations is lifted.
. R. v. Kazman

In R. v. Kazman (Ont CA, 2020) the Court of Appeal granted bail pending the outcome of a leave to appeal to the Supreme Court of Canada, largely on grounds that the appellant faced risk from COVID-19 if incarcerated:
[15] With regard to the reviewability interest, I cannot say any more than the merits, while not frivolous, are weak. As the applicant submits, the SCC has granted leave in cases involving the interpretation and clarification of R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. However, it is not at all clear that the SCC is likely to grant leave here.

[16] That said, the particular circumstances of this case justify release. The applicant’s crimes were serious but not violent. These offences were the first offences with which he has been convicted. There are no lingering public safety or flight risk concerns that weigh in favour of immediate enforceability.

[17] Further, the applicant’s health conditions, which were well documented in the record before the court, as well as his age, place him within a vulnerable group that is more likely to suffer complications and require hospitalization if he contracts COVID-19. It is necessary for him to practice social distancing to lower the risk of contracting COVID-19. Being in jail will make it difficult, if not impossible, to practice such social distancing.

[18] As the public health authorities have emphasized at this time, the need for social distancing is not only a question of protecting a given individual but also the community at large. In the prison context, a COVID-19 outbreak may turn into wider community spread as prison staff return home. As we are repeatedly hearing during this pandemic, the wider the spread, the greater the pressure will be for scarce medical resources.

[19] For these reasons, and in light of all of these factors together, the applicant’s release for a limited period would not undermine a reasonable and informed person’s confidence in the administration of justice.

[20] I emphasize that this does not mean that bail will be granted in any case where COVID-19 is raised as an issue. In R. v. Morgan (31 March 2020), Toronto, M51470 (C67536) (Ont. C.A.), bail pending appeal was denied due to the applicant’s risk of reoffending and the inadequacy of his sureties to supervise against further offending.

[21] However, the particular circumstances of this case justify release. Given the applicant’s health issues amidst the COVID-19 situation, and the limited bail period sought, I am persuaded that the applicant’s detention is not necessary is in the public interest.
. Carleton Condominium Corporation No. 476 v. Wong

In Carleton Condominium Corporation No. 476 v. Wong (Ont CA, 2020) the Court of Appeal addressed how, in light of the COVID crisis and a suspension on in-person hearings, the appeal should be heard:
[1] The appeal in this matter is scheduled to be heard on April 9, 2020. Since oral in-person appeal hearings were suspended for the week of April 6, 2020 as a result of the Covid-19 health crisis, the parties were canvassed as to whether they would agree to having the appeal heard without an in-person hearing, or to have the matter adjourned to a date in September or early October. The parties could not agree. The appellant seeks an adjournment until September or early October. The respondent requests that the appeal proceed in writing, with an opportunity for the parties to respond to panel questions either by teleconference or videoconference on April 9, 2020.

[2] I conducted a teleconference hearing on April 2, 2020, to rule on the appellant’s adjournment request and to decide how the appeal would proceed. It is in the interests of justice to have the appeal proceed in writing based on the materials filed. The parties will have an opportunity to respond, by teleconference, to any questions the panel may have, on the date set for the appeal, April 9, 2020.


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