Friends Who Argue
Friends Who Argue
Behind the Scenes Look at TAS’s Modern Advocacy Task Force - Part 2
On this episode of Friends Who Argue, we’re sharing Part 2 of our behind-the-scenes look at the work of The Advocates’ Society’s Modern Advocacy Task Force and its final report, the Right to be Heard: The Future of Advocacy in Canada. Task Force member Alex Shelley interviews Advocates' Society president Deborah Palter and Advocates' Society Director Peter Osborne (who chaired the Task Force) about the findings of the report. We encourage you to listen to Part 1 first, for a discussion about how the report was conceived, researched and drafted.
Download a copy of the Task Force’s final report here: digital version / print-friendly version.
Alexandra Shelley is a senior associate at Torys LLP. Her practice focuses on litigation and dispute resolution in a variety of areas, including corporate/commercial litigation, securities, construction and real estate.
Deborah E. Palter is a partner at Thornton Grout Finnigan LLP and President of The Advocates' Society. She is recognized as a leading advocate with a broad commercial litigation practice. She regularly acts for individuals, corporations and financial institutions providing creative advice and strategies for litigating and resolving complicated business disputes.
Peter Osborne is a partner at Lenczner Slaght LLP and sits on the TAS Board of Directors. He is one of Canada’s leading trial and appellate counsel and a fellow of the American College of Trial Lawyers. His advocacy practice includes securities matters, commercial disputes, insolvency and restructuring cases, class actions, governance issues and advice. Peter is a regular instructor for CLE programs of The Advocates' Society.
Land Acknowledgement
The Advocates’ Society acknowledges that our offices, located in Toronto, are on the customary and traditional lands of the Mississaugas of the Credit, the Haudenosaunee, the Anishinabek, the Huron-Wendat and now home to many First Nations, Inuit, and Metis peoples. We acknowledge current treaty holders, the Mississaugas of the Credit and honour their long history of welcoming many nations to this territory.
While The Advocates’ Society is based in Toronto, we are a national organization with Directors and members located across Canada in the treaty and traditional territories of many Indigenous Peoples. We encourage our members to reflect upon their relationships with the Indigenous Peoples in these territories, and the history of the land on which they live and work.
We acknowledge the devastating impacts of colonization, including the history of residential schools, for many Indigenous peoples, families, and communities and commit to fostering diversity, equity, and inclusiveness in an informed legal profession in Canada and within The Advocates’ Society.
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Speaker 3:I'm Alexandra Shelley of Tory, l l p, and I'm once again your host for this episode of Friends Who Argue. We are joined again today by Peter Deborah Polter for the second installment of our series on the modern advocacy task Forces report, the right to Be Heard, the Future of Advocacy in Canada. I want to welcome back Peter, and welcome back, Deb.
Speaker 4:It's great to be back.
Speaker 3:Thanks, Alex. So our listeners will remember that last episode, we talked about all the data and consultation that went into the Advocate Society's Modern Advocacy Task forces report. Um, perhaps we would call that the making of the sausage. And so today I was hoping we could discuss what actually came outta the report and what we find in the report itself. And to start, perhaps we could start with, with the key principles, uh, that we can find in, in the right to be heard.
Speaker 4:Yeah, th Thanks Alex. Um, so there are key principles that come out of the report. There's four key principles, and I don't, I don't think these key principles will, uh, come as a surprise to your li listeners. The first principle is the open court principle that an open, transparent, and fair court system continues to be critical. That public confidence in the integrity of the justice system depends on the ability of the public to see the system in action and understand how and why decisions are made. The second key principle is the imperative of access to justice technology can both materially increase access to justice. You know, it provides access to our courts free of mobility and travel concerns with the click of a button. Um, but it can also create challenges to access to justice. We heard loud and clear that there were barriers to technology, including physical and financial barriers, like broadband capacity and hardware and technological barriers associated with some litigants, comfort and, and competence with technology. The third principle was the integrity of the court process. Um, it can be more easily compromised in a remote environment. Uh, judges don't have the same control of a remote room that they do in a physical courtroom. And significant issues were raised with security of the remote platform, challenges around, uh, zoom bombing and unauthorized recordings. And, and beyond that, it was recognized that the solemnity decorum and, and gravity, that sort of energy of the court process in a physical courtroom contributes to the administration of justice. And, and finally, uh, the principle of proportionality, uh, uh, not a new principle, of course, fundamental and inextricably linked to access to justice concerns. The, the mode of hearing has to be proportional to the nature and significance of the matter, an issue bearing in mind that sometimes video conference hearings may be shorter and less costly. So proportionality has to be a factor in all this.
Speaker 3:You're right, I don't, none of those take me by surprise as, as a participant in the system. So you have your four guiding principles, and how do you turn those then into practical recommendations for courts and attorneys general and the other intended readers of the report to, to put something, you know, actually into practice?
Speaker 5:Uh, the billion dollar question, Alex<laugh>, um, it, it's, uh, y you're, you're banging on your questions. Perfect. Because that was one of the things that was so challenging for us on the task force. As you remember, what we tried to do was develop recommendations that recognized and were conscious of the highly individualized nature of cases that come before our courts. And so one overarching feature has to be always that there is discretion of the court in terms of the hearing. And to the point you just made a second ago, no surprise there. Right? The judge or or presiding panel have to have discretion over the, the proceeding that's occurring before them, uh, to make orders that, that are gonna make the hearing just, uh, fair, open and transparent. And they're so individual that may very well require something unique given the, the nature of the case so that that discretion is critical. But we were trying to offer some guidance for all stakeholders and therefore have recommendations that were grounded in guidelines and some certain common factors. So things like, um, beginning at the, the easy ones, Alex matters that we're proceeding on consent should be dealt with in writing, unless there's a public interest in an in-person hearing that might transcend the consent of the parties or another factor like that. But where it's on consent, the parties agree, there's no reason typically that an oral hearing should be required at all. And, uh, and that means by the way, an oral, in-person hearing, I think, or an oral hearing that's occurring remotely. And generally, the court should order an in-person hearing sort of at the other end of the scale, where the matter to be determined is a significant step in a proceeding, and at least one of the parties is seeking a hearing. Um, and, and I should pause there to note that if all of the parties want to run all or part of a trial, for example, remotely, that would certainly be a factor that would, uh, support a remote hearing taking place. And as you and Deb know, there's, uh, that's not brand new either. Our courts have done that for quite a while, um, in whole or in part, right, with witnesses from out of town or in different jurisdictions, different countries, experts or fact witnesses. You might have an in-person trial and have one or two witnesses give their evidence remotely. Um, and so there's nothing particular earth shattering about that. But we were tried to build, build those possibilities or, or, uh, or eventualities into our, our set of factors. And obviously, what constitutes a significant step in
Speaker 3:A, I was about to ask, so you mentioned sort of the other end of the spectrum is a significant step, but I'm sure people are gonna say, well, what's the significant step? Surely, surely it depends.
Speaker 5:<laugh>, you, you, you're right, ab absolutely, it depends, right? And, uh, it says, uh, justice Gouge used to say when he gave his speech to the call, to the bar ceremonies before you're a lawyer, when anyone asks you a legal question, you say, I don't know. And then after you've been to law school and practice for a few years, you have all that experience and someone asks you a legal question, you say, it depends,<laugh>, uh, and, and you're, you're bang on. It certainly depends. So what's an example of a significant step? Things like, uh, as the task force saw it, were, the outcome of the hearing is an order or a judgment that's legally I practically dispositive of the case. So it might be a final determination on the merits, or it might be something like an injunction motion, uh, that for practical purposes, if not legal purposes, is largely dispositive or things Alex, like where the order impacts the liberty or some other very substantial and significant interest of a litigant. And we're thinking there are things like child protection matters, contempt motions, uh, things of that nature. There. Uh, there are a million of them, as you can imagine, but that was the idea. And again, all of it subject to the discretion of the presiding judge.
Speaker 3:And so we certainly have or had some guidance, um, in rules across the country about modes appearing pre pandemic. And I just wonder if we can reflect a bit on how these recommendations then differ, you know, from where the system stands today. Are we talking about modest changes or, or is this a revolution
Speaker 4:<laugh>? Well, when we say today, uh, like today or where we were before the pandemic is today, uh, with the spread of omicron, we're, we're back to the general rule. I think that matters are being heard remotely.
Speaker 3:It's a good clarifying question. I'm feeling optimistic today that the pandemic will hopefully soon be in our rear view mirrors. So why don't we take it as how the recommendations compare to where we were pre pandemic, where we were packing up our hard copy records and putting our rules in our court bags and throwing our rules over our shoulder and trudging up the court
Speaker 4:<laugh>. So, um, if we're reviewing the recommendations in the context of where we were before the pandemic, then, um, you know, these recommendations, they're grounded in fundamental principles that underpin our justice system. The, the open core principle, access to justice, integrity of the core process, and the principle of proportionality. Uh, those principles are not new, uh, to advocates. Uh, but I will say the recommendations do represent a fundamental shift in a way in which we will practice in years to come. Even in the context of in-person hearings, there are major technological advances embedded in the context of conduct of those hearings that are embraced in this report. Things like, you know, online filing and electronic access to documents and case lines. And so, you know, I think it's fair to say that the way in which we practice as advocates has transformed and it's gonna continue to evolve. This, this report, I think reflects that reality.
Speaker 3:And were there any findings in the report, you know, or viewpoints that took you by surprise? And, and maybe you could tell us why you were surprised by some of what you heard?
Speaker 5:Sure. Let me take that one, Alex. Uh, the, the short answer to your question is, is yes, uh, and I don't know whether to be proud or embarrassed of some of those, but, but for sure, there were some surprises and, uh, a number of them related to access to justice A two J challenges. Um, and, uh, it was interesting what we learned from, from our research and our inputs, for example, it's, it's a major mistake to simply assume that video conferencing or remote hearings are automatically faster and cheaper than in-person hearings. They may well be in numerous circumstances, perhaps even in the majority of circumstances, but it is, is wrong as we learn to simply assume that in every single case it's faster, cheaper, and easier, uh, consistent with, with qualitatively good justice, um, to just assume that, uh, that you're saving money in time by doing that.
Speaker 3:I remember that there were, you know, more than one example of litigants, uh, who ran out of phone minutes, you know, partway through hearings, giving testimony or who were testifying from a handheld smartphone in a public place, um, and other challenges that for those litigants would've made attending at a local courthouse actually easier than participating remotely or virtually. And certainly a far cry from having a virtual boardroom decked out with ring lights and double screens. And so I do think it, it probably is a surprise to some of our listeners that those are the challenges we're hearing about, that we think, oh, it would be cheaper virtually, and it's not necessarily cheaper or easier virtually for some individuals.
Speaker 5:You bang on Alex and it's, uh, it's, it's not only not cheaper or sometimes it's not available. And you're right, you really get down into the nitty gritty of, of the small, a administration of justice across our country. And as you say, it's not lofty principles like the right to a hearing, but it's very tactile, real things, like you say, like access to a sim card or broadband technology or access to a laptop or an iPad, um, and who is going to pay for a zoom license? Literally small things like that, but which are so critical to the functioning of, of our system, particularly for unrepresented litigants and also in, in remote communities. And, and remember too, there's a correlation between those two where often unrepresented litigants and those who are most vulnerable in our justice system are overrepresented in, in remote communities and those who need, uh, the services more than others. But there were, there were lots of surprises, as you say. Um, and, uh, and, you know, other ones, for example, included things like us learning that it was a mistake to assume that in-person hearings offered judges or triers of fact a better opportunity to assess credibility or necessarily resulted in better outcomes. I'm embarrassed to say there's an example I would've thought going in that most of the members of the judiciary with whom we spoke would've said it's much harder to assess a witness's credibility, uh, looking at them and hearing them on a screen. In fact, the, uh, almost the reverse was true. And most judges said there are lots of challenges like the ones Deb just mentioned, relating to the integrity of the process and controlling the, the virtual courtroom. But assessing credibility and evaluating the evidence of a witness was not top of the list. So that was, that was a surprise, uh, to me. And, and finally, the most important, uh, or one of the, one of the key things, um, that I learned, uh, and I think the task force saw from our results was that with some of the most vulnerable litigants and, and for example, self reps, which are a, a large and increasing proportion of the litigants before our courts, um, a hearing in writing, or rather a determination in writing rather than an oral hearing, whether remote or in person isn't necessarily faster or cheaper or better as well. In fact, lots of unrepresented litigants do much better if they're able to engage in a dynamic synchronous dialogue with the judge in court. They're much better able to articulate an argument or a position or, or describe really the remedy they're looking for than they would be in one of our legal boxes or a factum or something like that. And that makes the process that much better. And so, to me, the key that I learned was, uh, sometimes the exchange has to be synchronous rather than asynchronous, which, uh, you don't have synchronous exchanges, obviously, if, uh, the matter proceeds in writing only, and it's almost secondary, whether it's a remote hearing or an in-person hearing. But the key is there is a hearing of some sort, particularly, um, for those who you might think would benefit most from the speedy, expeditious and cheap in writing only
Speaker 3:Disposition. I, I remember also being sort of surprised by that finding, having thought about, you know, surely someone who's self-represented or, uh, junior or whatever the case may be, would wanna, you know, hide more or be able to do it in writing and not be put on the spot to appear in a courtroom before a justice. That might be intimidating. And, and you're quite right that we heard the opposite, that it's easier to sometimes make your viewpoint known or, or argue your case if you're there in person than it is to bill out a court form that you're very unfamiliar with. Um, as a member of the young advocates standing, committing and knowing that many of our listeners will themselves be young advocates. I'm curious if, uh, you saw any distinction between the views of more junior council from that, of senior members of the bar without sort of asking you to generalize too much,
Speaker 4:<laugh><laugh>? Well, I<laugh> I was gonna start by saying I am reluctant to, to generalize about the views of, of junior and senior members of, of the bar. Um, uh, I will say the zeal for remote hearings did not necessarily align with age or seniority. And I think it is a mistake to, uh, simply assume that everyone, you know, under the age of 35 wants to use Zoom and, uh, only, and everyone over the age of 40 wants to only use fountain pens and, and in-person and, and attend in-person hearings. So, um, with that, and, you know, with that context, uh, if I were to make an observation, I would say that young younger lawyers do tend to be earlier adopters of technology and adjusted, uh, quickly to the demands of remote practice, including abandoning paper almost completely, and, and being very comfortable with the tools required for remote hearings. Um, this may have made younger lawyers more comfortable with remote hearings more quickly, but I do think almost two years into this now, um, junior and senior lawyers alike see the benefit of remote hearings. I mean, we have to see the benefit, uh, uh, of remote hearings regardless of, of years at the bar. Um, at the same time, I'll say many lawyers have expressed a yearning to be back in court again, uh, not, not for the short procedural matters, but for the more significant hearings and and trials. And this is just as true for some of the very young lawyers, the, and students and first year lawyers who may never have been inside a courtroom as a result of the consequences of the pandemic. Um, and you know, as we speak about the views of advocates, I think it's important to note that all advocates, you know, in our consultation process, were asked to provide input driven off of what they perceive to be the interests of those they represent, you know, irrespective of their own seniority or, or, or personal preferences as an advocate.
Speaker 3:I was gonna say, I think you could generalize on the hard copy filing. I, I, I think any<laugh> all young advocates think that we don't ever need to walk our materials up to court and file them, then we could do away with that for good. That would be just fine with us. Yeah. Um, one thing I was surprised by that isn't necessarily, I mean, I guess in the big picture it is about your client cuz you wanna be the best possible advocate for them. But one of the things I was a bit surprised by, because I would've thought that virtual hearings meant more opportunities to observe, um, you know, hearings that as a young lawyer, right? You, maybe the client doesn't want the bill for you coming to court to watch, but, you know, if you're just in addition into a virtual boardroom, then that's something else. Um, and I was surprised to hear that young advocates find that the mentorship virtually is, is not nearly as good as the mentorship in person and, and in particular if they're the one making the submissions. And so they're not getting sort of, uh, the cues, the the body language, the little note passed Yeah. From the senior lawyer telling them to wrap it up. This isn't<laugh>, this isn't the point we're gonna win on, let it go. Um, and, and you're getting that maybe in a chat on the side of your computer, but it's incredibly distracting more so I think than than we find, um, in an actual courtroom. And so we did get a fair bit of feedback that they felt that mentorship and the ability, uh, to be coached was harder in a virtual setting than it was, uh, in a real courtroom. So I thought that was interesting for sure. Um, you know, on the other hand, some young advocates express that they find it less daunting to make their first court appearance, you know, remotely with all their little crutches secretly hidden out outta the view of their webcam, right? Not just their record in front of the meta podium. Yes. Um,
Speaker 4:If, if I can just weigh in on that too. I think one aspect of remote hearings is there has to be more intentionality around mentorship. Like there is an aspect to it where you're right Alex, it is easier, you know, uh, any lawyer should be able to click into a webcast of a trial and see great advocacy in action without, uh, walking up to court for that purpose. But at the same time, there is an aspect of mentorship and the informality of mentorship that happens in that walk up to court and in that debrief on the way back to the office and all of the communication in between that you identified not just one-on-one with your colleagues, but with opposing counsel, with other counsel in the courtroom who are there waiting for their matter, like they're, the informal aspect of mentorship is more challenging in the remote role. And I think what I've heard is can be missing for, for all of us. And I'll, and I'll say not just for the, the, uh, mentees, but I'll say for the mentors too,<laugh>,
Speaker 5:You're both absolutely right. You know, I think that's a huge part of what's missing. You would think that, uh, things would be much less formal when you're online, but in some ways they're more formal in the sense that for a young counselor, instead of sticking their head next door to a colleague and saying, Hey, have you ever come across this problem before you send a teams invite or you schedule a zoom call and it somehow is more formal and, and, and more difficult. And, and part of the mentoring that I think we've really gotta work on Alex, in the next number of years and it's incumbent on all of us in the bar for our younger or less senior colleagues, is, is just what, what you say and what Deb was talking about, the sort of the walks back from court, it's easy to log into a Zoom hearing and watch you argue before the Supreme Court of Canada and watch Deb argue before the court of appeal. But what about all the informal mentoring? What about drafting, uh, aact or a letter together or watching you manage client expectations just by sitting in your office on a phone call? All those things that don't necessarily result in, in a, in a document or a formal submission. But there's such an integral part of exercising judgment and I think learning, learning to be a council, uh, and give advice, uh, to, to clients and manage their expectations.
Speaker 3:Totally. And I think the other thing we heard, which is interesting, which isn't just a young advocate issue, but circles back sort of to Deb's point about the walkup and, and the hallway is there were a lot less opportunities for settlement discussions that were happening with our opposing friends. So when we're waiting for our nine 30 or, or we're waiting for our matter to be called and, and we're saying, do we really need to schedule this motion? Can't we come to some sort of resolution? We're not having those calls anymore cuz we're just logging in. We're not having those conversations anymore informally when we see the person hoping that we can resolve because we're just logging into the zoom at our scheduled time to, to, you know, make the pitch. Um, and so I think that we heard that in addition to sort of mentorship missing from the, the walk to court and the, and the hang around and wait portion of the court day was also, uh, impacting informal discussions with our colleagues at other firms.
Speaker 5:Hundred percent. I I think back to Justice Farley on the commercial court years ago, who used to very intentionally use adjournments for things like that, he wanted the parties to stew in the hallways for an hour and possibly talk about settlement. And, and you know, on a less sort of anecdotal basis, we had the task force heard lots from mediators who say it's actually much harder to mediate, uh, disputes often or you're doing it remotely, uh, logistically easier, but it's much harder to turn up the temperature or the pressure or turn it down depending on what you're trying to achieve with both parties or, or, or different parties, um, when they can just click on and off, uh, their zoom call and they're not in a physical setting or in a room waiting for a mediator to come back. It's a very different dynamic and a different skillset.
Speaker 3:Absolutely. And people<laugh> I have always found are more likely to, to settle towards the end of the day when they're hungry and they've got somewhere to be. And when you're at your computer and you can just turn off your camera and have a snack, I mean, we're not putting the pressure on in the same way that maybe we were in person where you're thinking, you know, what, what's another X dollars to just get this over with? So I I I hear that. I I I've seen that I think in the, in my, the mediations I've done as well.
Speaker 5:You got it. Too much heat, not enough chairs and not enough food.<laugh> incredible results.
Speaker 3:<laugh>. Okay, so let's turn back then we talked about, um, young advocates. I wanted to talk now about historically disadvantaged groups, um, and how their viewpoints sort of found their way into the report and, and how they align with the recommendations that were made by the task force
Speaker 5:For sure. And that was, uh, one of the key things we wanted to, uh, ensure we looked at when we were trying to design the inputs for, for the task force and for what ultimately became the recommendations, Alex. So it began obviously with the indigenous perspective subcommittee that we talked about, and that subcommittee led, um, by Kathleen Liquors and Maureen Weldon did a phenomenal job of looking not only at, uh, at indigenous traditions and morality, but also, um, jurisprudence arising out of indigenous issues and, and or involving indigenous parties. And remember, the two are not always the same, um, to ensure that those perspectives were looked at and also ensure that in the interviews conducted by the task force and the inputs, there was specific attention given to ensure that umbrella associations representing Bipo communities, feedback from stakeholders from vulnerable and other underrepresented communities, uh, including, as I mentioned a few minutes ago, those living in remote communities, uh, and those dealing with vulnerable witnesses or parties such as, uh, the Children's Aid Society, um, the, uh, the fairness commissioner, um, the, uh, the, uh, children's lawyer. All of those perspectives were taken into account and, and some of those find found their way into the report as well through, I guess what ought not to be surprising to any of us in a lot of the access to justice considerations reflected in the report and that we talked about on our earlier podcast. And again, a few minutes to go because obviously it's so critical that we not underestimate the clear and unequivocal connection between those historically disadvantaged groups and access to justice considerations, uh, for whom they they are and should be most directly, um, appointed towards. So we worked hard at at doing that, uh, throughout I think the process of both gathering and then synthesizing the information in the report.
Speaker 3:And so how are litigants and, and not just historically disadvantaged groups and, and not, uh, just young lawyers, but litigants themselves served by the recommendations of the report?
Speaker 4:Well, fundamentally, the report provides recommendations with a view to improving the experiences of litigants in our justice system. And, you know, it's aimed at collecting the experiences of litigants through, through advocates and umbrella organizations that the re uh, that represent them, uh, to ensure they're reflected in, in the report. During the consultation process, we spoke with stakeholders about their views on their clients, uh, and or self-represented litigant's ability to attend remote hearings, you know, access to technology, access to the court system generally as well as litigants privacy and, and confidentiality and ability to see justice being done. And those findings in particular were reflected in the section of the report called Perspectives from Canadian Justice System. Stakeholders recommendations, you know, are informed by the individualized experiences of litigants, access to broadband and technology, uh, mobility concerns, ease with which they can access in-person and remote hearings, depending on the very individual circumstances. And recognizing the power of a courtroom, uh, was identified as integral to their confidence in the process that oral hearings can facilitate a deeper engagement and understanding of those involved in and affected by the court proceedings. And Alex, one thing that, uh, you mentioned earlier that that transparency cut both cuts both ways. It's not just the litigants seeing, uh, the administration of justice in process and observing the court proceedings, but being immersed in it and being seen as well. Right. So, um, all of that was poured into the recommendations in the report.
Speaker 3:Thank you, Deb. And so Deb, you, you talked to us there just about how litigants are served. Peter, I'm wondering if you could tell us a bit about how you feel that advocates are served by the recommendations of the report, knowing that most of our listeners will be advocates themselves.
Speaker 5:Sure. Thanks Alex. I, I, I do hope that advocates as well as all stakeholders obviously in the system are, are served by the report. And, and I say the report intentionally because I mean, not only the recommendations, but the foundational research and, and history on which those recommendations are based. You know, as all three of us have sort of observed in this podcast, and in the earlier when, when we were talking about the task force, we as advocates, as members of the bar we're doomed. If we're simply seen as a self-interested group looking for a way to perpetuate a monopoly, those days are gone. And that is not gonna happen. And, and secondly, I think, and we had this in our minds when we were trying to develop our thinking and the recommendations in the report, um, that's a good thing. There shouldn't be, um, a, a, a monopoly like that at all, and a perpetuation of a system if it's not working for those, uh, whom it's designed and funded to serve. So what we, we wanted to do is not just have a report by advocates for advocates saying that oral hearings are a good thing, but really to be able to articulate why a certain mode of hearing is necessary for a particular proceeding or step and the public whom we're all trying to serve at the end of the day, as well as those who are designing, implementing, and funding the administration of justice will, will buy into what we're trying to accomplish. So we can say, look, we, we think an oral hearing is necessary in this instance, but here's why. It's not just cuz it's more fun to gown and go to a courtroom, but there are tangible, qualitative real reasons why we think it's justified in this case. And if we can't justify that hearing, then we ought to ask ourselves why are we having an oral hearing? And maybe that's a perfect example to exercise the discretion that the guidelines and the recommendations, as Deb was saying, allow for, uh, for the exercise of that discretion to say, maybe we don't need an oral hearing in this case, even if we've, uh, we've always, uh, historically done that. There's certainly common ground, I think as, as we said earlier, that the current system needs major reform and, uh, as you noted Alex, uh, the pace of that reform has been forced on us through the Covid 19 pandemic. And, and that's a, a good thing, you know, to our shock, uh, it actually works and electronic filing is possible and there are hiccups like there are in any system, but it's actually pretty darn impressive. Um, how the system I think has, uh, has adapted in a, in a way and at a rate of change that everybody thought was impossible a year and a half ago,
Speaker 3:Necessity is the mother of invention or whatever they say, we lived that we saw that. Yep,
Speaker 5:Absolutely. Right. It's, um, and, and I guess I would just add to that Alex, that, uh, just, uh, to echo what Deb said earlier about the report being a foundational DIA document and, and the start, but not the end of a dialogue, you know, in the recommendations themselves, um, we've suggested that this all be looked at on a regular basis, and that's never been more important, right? We were very conscious in drafting the report of trying to frame this so that number one, the the foundations and the research were applicable and would be an excellent resource 10 years from now just as they are today. But number two, um, that this is not a static document and the recommendations aren't static. And I was gonna say they should be looked at again in a few years, really, you could argue they should be looked at again now. Um, it's amazing how much has changed. Remember in March, 2020, it was our really an emergency or crisis management, right? It was how do we get our courts functioning tomorrow? So there is an administration of justice in this country, and now it's a little more thoughtful. We're whatever we are, 23 months into this pandemic. Now it's a little more about, okay, we've seen what works and what doesn't. The the, the trauma in the emergency room is over, if you will, but the patient is still in the hospital. Um, what can we do with a little more time to catch our breath, be a little more thoughtful, um, and what can we build on what we've learned, uh, what we've learned on, and, uh, and have a foundation so we can look at it again in one year, five years, 20 years down the road.
Speaker 3:Thank you, Peter. There's, um, an increasing awareness, I think, of the access to justice crisis in this country. And we've heard today some of the access to justice concerns that were raised in the consultation process and reflect in the recommendations of the report. I know the access to justice crisis itself is beyond the scope, obviously, of the task force. Um, but in your view, how do the recommendations of the report address or aim to alleviate some of the access to justice concerns based by our judicial system?
Speaker 5:Great question, Alex. It's so hard, right? Access to justice is, is such a seminal issue. And you know, in particularly in areas like family law, where I think in Ontario, and at least I believe it's similar in the other provinces and territories, well over half the litigants are now unrepresented. Um, and so access to justice means timely access to justice. So we've talked about some of those things. So what we tried to do was, uh, avoid either end of the, the sort of the pendulum or the, the extremes of the, of the spectrum. And that is to say, do does every single matter and every single step require an oral in-person hearing? Absolutely not. Similarly, can every single step and every single proceeding be dealt with in writing? Absolutely not. So let's have the discretion with one of the factors that the judge overhear overseeing any step in a proceeding has the, has the jurisdiction and the discretion to apply, um, to customize and, and consider as one factor when determining the appropriate mode. Hearing access to justice front and center. Does the mode of hearing that I'm about to order in this case increase and maximize access to justice for the parties and those interested members of the public? Um, we've, we've seen so much, uh, change as we saw over the last little while. But for example, you know, the open court principle that Deb spoke about, uh, it's funny if there's a, an important or public interest trial or hearing in the courthouse, everyone knows where the courthouse is and unless there's a publication ban or an order excluding witnesses, something, the court's open and you can go in. Um, you'd think it would be easier on Zoom, wouldn't you just try to find a list of every matter that's on in any jurisdiction, uh, on Monday morning and try to find a Zoom link for it, or try to even find who you wanted to call to get a zoom link if you wanted as a member of the public.
Speaker 3:You also lose your anonymity, right? As soon as you log onto Zoom in, in these settings, you find that you've gotta identify yourself with a name and someone might ask who you are and why you're attending and you've lost your ability to just walk into a courtroom and sit as a, a quiet observer in the back.
Speaker 5:A absolutely right Alex, and it's funny, on many matters that I've been involved in recently, I've seen an increasing number of people participate and log in with their camera off, which is fine if they're not addressing the court and in the name it will say anonymous or member of the public mm-hmm.<affirmative> and as it should be. Right? Right. You shouldn't have to identify yourself or, or an interest in a matter or why you're there. You should just say, um, I'm an interested member of the public and I wanna watch the proceeding. And, and that's great to see, but it's, it's, it's harder than you think in a, in a remote setting. So we're gonna have to, I think, ensure as the recommendations contemplate that access to justice considerations continue to be, uh, a central factor, uh, when judges are determining the most appropriate mode of hearing.
Speaker 3:Thank you. And we've spent a lot of time talking to you about sort of the successes and triumphs of the report, and the report has been lauded by many. There have also, of course, as Peter, you said you knew from the outset there would be criticism and there has been, um, some criticism as well. You know, it wouldn't be the legal field if it, if there weren't. Um, and so how do you respond to the criticism in particular that the report overstates the value of in-person hearings and doesn't embrace virtual platforms and remote hearings as much as it should or could have?
Speaker 4:Well, it's a great question, and let me start by saying we love engagement with our report. This is an iterative process and you know, where to draw the line on the appropriateness of in-person versus remote hearings is very much the subject of ongoing discussion and debate. There is broad consensus, I think it's fair to say on the principles that form the basis of the recommendations that we've discussed and that are foundational for our justice system, but not surprisingly how these principles ought to manifest themselves in the coming world. Where optimal use of in-person and remote advocacy is possible is very much the subject of discussion and debate in advancing the cause for remote technology. It's important to identify not just its virtues, but its challenges and its barriers. Technology has changed dramatically in the last 25 years that I've been practicing, and it will no doubt change dramatically, I would suggest in the next 25 years. And those changes and the removal of challenges and barriers associated with remote, uh, hearings will make remote hearings more accessible than they are now. And the report recognizes the virtues of remote advocacy in states unequivocally, that there is an important rule for remote advocacy within our justice system. But what we also heard from our consultation process is that the very real and material benefits of technological advance should not obscure the importance and value of in-person courtroom advocacy in some circumstances. And that while, uh, remote platforms are a critical tool for advancing access to our courts, they are not a wholesale substitute for the courthouses themselves. And so in this technological march forward, we should not just ask ourselves can we, but should we, and the report and the principles that ground us, uh, uh, that ground it help us answer that question. It's, it's important to emphasize the report is not static. Um, it is, uh, you know, the report does not recommend by any stretch that every matter requires an oral hearing, let alone, uh, an in-person oral hearing. Think, think of all the things that, that we thought to be sacra say not so long ago, but we now accept is not required in every case for obvious reasons, the physical filings of affidavits with original signatures where there's no issue or challenge, um, or in-person attendance for procedural or mechanical steps like, you know, endorsing a, a case management timetable and what, so what we've tried to do here is to set out a framework for the determination now and in the future of whether an oral hearing is required. And if so, why, having regard to the highly individualized circumstances of, of the cases that come before our courts.
Speaker 3:And so knowing now what the criticism are, and with the benefit of hindsight, are there things you would've done differently, different areas you would've tried to explore, different research inputs or consultations that would've been undertaken or even perhaps different conclusions or recommendations to draw?
Speaker 5:Uh, great question, Alex. Uh, yes to all of them, uh,<laugh> a a million things. I mean, and as we said, look, it's, it's early days, uh, still for sure, and there's certainly lots to learn, but as Deb said, we very much welcome a fresh look and a rethink, including the most, uh, robust criticism. And there's been lots of that already from all stakeholders in the, uh, in the system with not much varnish on it. They, uh, they've been very forthright in, uh, in and, and robust in the criticisms, and that's a good thing. Um, and, and I'm being, you know, slightly facetious, but I do mean that. And, and by that I mean if, if for example, the recommendations were looked at in two years or three years, and, uh, on a thoughtful analysis, it, it were said, look, all of these, or most of these are wrong for all of these reasons, to me, that's a good thing because, uh, the report has been substantively accretive to the debate and it's moved, moved the, the ball down the field further as it were in terms of making our system better and, and starting a process. Um, I, so I guess, um, you know, we're early days sort of, uh, in changes we're hopefully through, as you said, the worst of the pandemic, but will things be different in two years? For sure, they will. Um, so, uh, yes, uh, regular, uh, review of the recommendations. And the other thing I guess I would note was that, um, you know, what would we do differently? We struggled, uh, in some of our foundational inputs with the lack of data in this. And, uh, I guess if I had, uh, one wish it would be that there were resources available to track in a qualitative and usable way, data and results as well as what people, and by people I mean litigants and, and their representatives counsel want what modes of hearing are working for which types of disputes? Uh, why, um, what are unrepresented litigants choosing by way of a mode of hearing? Can we tell why? What about time periods and delay? They're there, of course, but can we drill down on that and see which types of hearings and which types of litigants are most affected, and how can we be a little more surgical in the way we fix those? And particularly where the system offers litigants a choice, you know, as they say, what are they choosing and why, and how can we customize the system, um, to do that? Far too much of the work, to be candid, relies of necessity on, uh, if not anecdotal, at least not statistically rigorous experiences. And I think that needs to change. So we need to begin with a reliable and comprehensive data set, which will take years to build. We should start on that now if we can. The United Kingdom is, is ahead of us on that in terms of trying to track that. And it's a, it's a resource commitment for sure. Um, but I think it's important. And I guess finally, if, uh, if I had unlimited resources, the task force would have the time and, and, uh, resources to undertake even a, uh, more broad con consultation process, then we did. Just as you asked earlier about in the podcast, Alex, uh, uh, particularly with members of the public, uh, I would love to have the time and money to do a statistically significant survey of the public properly organized by professionals. So, uh, their results were robust and we had some confidence in their validity. Um, and that requires some real planning, implementation and money. But I think it would be, uh, it would be worth it for sure. Um, and, uh, and I think, uh, the result would be better at the end of the day.
Speaker 3:Absolutely. And when we, you know, think about tracking data, it's hard to know if mode hearing has an impact if we don't get data about, you know, when was the matter commenced and when did it ultimately get heard and what mode of hearing did you use? And so is, is virtual actually faster if that's one of the things we're assuming? And, uh, does that mean you're getting your justice quicker? And I think it is all anecdotal right now. Certainly there's a real dearth of data and I I imagine it's an important input for future planning.
Speaker 5:Absolutely. You know, just to, to echo that, uh, one final thought on that. Um, on, on some of the town hall discussions, and Devon, you might recall this, I sort of asked a off-script question of a people. I said, you know, if you had an anonymous benefactor who donated a billion dollars to the justice system tomorrow, and, and it's a great thought for, for the listeners, your listeners on this podcast, Alex, to ask, if you had a billion dollars, what would you spend it on? And it makes you really rethink the whole system. Would it be, uh, greater judicial resources, support staff training software, physical courtrooms, uh, broadband connectivity in remote communities? What would you do with your billion dollars? And it really makes you daydream and think about what, what could be.
Speaker 3:And I think that sort of brings us to my final question, which is, you know, this is a milestone for sure, the report. Um, but I think it's an important one in a bigger project as, as we've heard Deb say before. And Peter, you echoed that today that, you know, it's part of the debate. It's, it's not the whole piece. And so where do we go from here?
Speaker 4:Well, uh, I would start by following up on, on Peter's comments and your comments, Alex, to say, significantly more data collection and data analysis, uh, would be helpful to assess the impact of greatly expanded remote hearings on, on access to justice. As things evolve and the world recovers, it's important that we continue to evaluate what's working and what may not be working. Uh, the modernization of our, our justice system is very much an evolving, uh, and ongoing process. Government commitment to broadband connectivity across Canada with a particular emphasis on, on remote and uh, northern communities, uh, is part of the modernization of our justice system expansion and rethink of legal aid with an emphasis on remote hearings and the challenges that they can present. These are just a few items, and the question in part is what would we do if we had a billion dollars to just completely blue sky it? But what are the other aspects that cost less money or no money as, as things progress? Although you ask me this question, the, which is a fair question, where we go from here is really a question for all of us, and I very much look forward to engaging with the professional on that question in the days and, and months and years to come. So if I may take the liberty, I would like to invite your listeners to write to us@policyadvocates.ca, that's policy advocates.ca with their views and reactions to the Matt report and what they think the next project to modernize our justice system ought to be and where we should be going from here. Um, we very much wanna continue that dialogue.
Speaker 3:Well, that sounds like a very genuine invitation from Deb and Peter to contact them to share your thoughts. And so listeners, I encourage you to do so. I wanna thank Deb and Peter for being here for two installments on the modern advocacy task forces report, the right to Be Heard, the Future of Advocacy in Canada. Thank you, Deb. Thank you, Peter. It is a wonder you were able to generate this report in the middle of a pandemic all while carrying on busy practices. And we are very grateful for your efforts and those of the task force and also for taking the time to join us today and on our previous episode of Friends Who Argue. So thank you.
Speaker 5:Thank you, Alex. It's us who owes you the thanks both, uh, for your work on the task force and for continuing the engagement and the debate on these issues. As Deb says, thanks so much for having us.
Speaker 4:Thank you, Alex. We're delighted to engage with you and your listeners.
Speaker 3:And listeners, if you haven't yet read the report, you can find it, uh, both in virtual and digital, uh, links in our episode notes and we'll see you next time.
Speaker 6:Thank you to Deborah Polter, Peter Osborne, and Alexandra Shelley for this behind the scenes work at the Modern Advocacy taskforce's work. Thank you to my co-editor, Ian Brennaman, our production leads, Kristen Durmer and Natalia Rodriguez enter the Advocate Society team for their support. This is ish high co-editor of Friends Who Argue Signing Off.
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Speaker 7:Until next time, we are friends who argue.