CBA members do not generally oppose any specific type of restriction imposed on in-person hearings
The Canadian Bar Association has expressed its support for adopting a COVID-19 policy for in-person hearings conducted before the Federal Court.
In a letter addressed to Federal Court Chief Justice Paul Crampton, the CBA said it consulted with its members to understand their views on the court’s potential policy requiring proof of vaccination for anyone attending in-person hearings.
According to the CBA, those members who participated in the discussions do not generally oppose any specific type of restriction imposed on in-person hearings.
However, the CBA noted that requiring proof of vaccination should result in all parties appearing in the same format. In other words, all parties should appear in person, or if an unvaccinated party cannot appear in person, the hearing should be held virtually.
With this, the CBA proposed two possible alternatives. First, obtaining consent from all participants that one party attends in person while others attend virtually. Second, conducting in-person hearings in compliance with health protocols, such as masking, social distancing, and presenting a negative rapid test result.
The CBA also noted that a vaccination policy would particularly affect hearings that proceed on an expedited or urgent basis if the party involved remains unvaccinated.
“In those cases, individuals who are unvaccinated due to medical, religious, or other reasons should not be deprived of an in-person hearing,” the CBA wrote. “In those circumstances, accommodation can be offered with proof of a negative COVID-19 test.”
Moreover, the CBA suggested that the court adopt the procedures applied in the provincial or territorial superior court of the jurisdiction where it sits, or alternatively, adopt the most restrictive measures imposed by a provincial or territorial superior court and apply those restrictions across Canada.
The CBA also urged the court to improve access to courtrooms to accommodate litigants who cannot attend a hearing remotely due to insufficient internet connection or because conducting a virtual hearing would be impractical for family reasons.
“In sum, a vaccination policy for in-person hearings is favoured,” the CBA wrote.