There was a much bigger appetite from the public to attend virtual hearings than expected: Noël
Canadian Lawyer spoke with Chief Justice of the Federal Court of Appeal Marc Noël* about his court’s use of technology, how the pandemic opened hearings up to more of the public and other initiatives to simplify court processes.
When we last spoke, you had heard your first appeal remotely just as the pandemic started – what do you remember about that experience now?
It is probably good that nobody knew then that this would last three years. Human beings react quickly and can adjust to radical changes. And that's what happened.
Looking back at the workings of the court, the biggest preoccupation at the time was to ensure that we could keep doing what we were supposed to, which was hearing cases and rendering judgments. And that we did well.
How common was it to have parties with no regular access to a computer and the internet?
It was rare. We did encounter a few instances where self-represented litigants did not have access to the technology. In most instances, the individuals accessed it through friends and relatives. Otherwise, the registry attended to the problem and ensured that those without the technology had it.
How easy was it to allow the public to watch more hearings online?
We were already set up to hold virtual or hybrid hearings when the pandemic broke. We needed nothing more than what was already available in our courtrooms.
We had to provide a link for virtual hearings. We had to choose the platform, and we opted for Zoom, which we perceived as the simplest to access.
Is that something you're doing now more than before the pandemic?
Absolutely. It's become part of our process in our main centers, including Toronto, Montreal, Calgary and Vancouver. We're trying to equip all our courtrooms the same way.
By keeping count of the participants in our virtual hearings, we realized the appetite.
For instance, for an esoteric tax case that you think would interest only a few people, you might have 10 or 15 people in the physical courtroom. But to our great surprise, we started noticing 100 people in attendance in a tax case, which was unheard of before.
In the recent Rogers Competition Tribunal appeal, which was heard in person in our courtroom in Ottawa in early January, we had over 1,000 people attending the hearing virtually.
So, we quickly understood that this is quite a bonus regarding access to justice and people understanding and participating in the judicial process.
How do you balance what is public and what is not?
We usually deal with matters involving confidential information where counsel is present. It's simpler than we initially thought. We invite counsel to refer to the confidential record without verbally identifying the actual information. So, we conducted several hearings with confidential information through that means.
When that cannot be done, we invite counsel to refrain from referring to confidential information until the very end, and we go offline at the end to have a session without the risk of disclosure.
What are virtual hearings’ main benefits besides openness to the public?
The versatility that it provides. It allows us to respond to the desires of those who come before us.
Since September 2022, our default position has been in person hearings. But we accommodate those who insist on appearing virtually.
You managed to function at just under 85 percent of your usual production during the pandemic – what do you anticipate for 2023?
We still need the statistics for the first three months of 2023. I suspect that we'll be close to where we were last year.
We are moving towards pre-pandemic numbers. Within a few years, that's where we will be.
Have you made any permanent changes regarding your travel schedule since the pandemic started?
Not really; we are returning to pre-pandemic patterns of travel.
We look at what the courts do in the provinces and try to emulate what we see in most superior courts and courts of appeal across the country. People are moving back towards in-person hearings. So, we're compelled to match that.
What considerations did you make when permitting parties to file documents using email?
E-filing was a health measure. Filing without the requirements of a paper copy allowed us to quickly move away from in-person filing and continue to operate while protecting the health of those involved.
Of course, that worked well. But we wanted to make sure that people who did not have access to the technology could continue to file on paper. We inserted drop boxes at the registry offices to allow people to drop their papers.
E-filing was a defensive measure, but it was also a learning experience.
You've made more improvements to how that's done more recently. Can you speak a bit about that?
Practice makes perfect. And so, we're now more familiar with the consequences of e-filing and how to handle it internally. We'll be making greater use of it as time goes on.
What are the most recent challenges in your e-filing system?
We are missing the technological infrastructure that will enable us to move fully toward electronic records. We still must deal with paper, but at the same time, we must introduce e-filing.
Within 10 years, the problem will likely be resolved, but we will have this period where we will be in between. Trying to develop the appropriate technological infrastructure that will accommodate this change is a challenging task.
We also must keep in mind that we are a fully bilingual court. So, you have the linguistic aspects. We must worry about the rules of practice, and we must create a platform that's accessible and easy to use for the parties, self-reps, and professional litigants.
Your court is working with the government to procure the technology?
We've got very active committees that are interacting with the government to make sure that we develop a platform that is suitable and responsive to our needs. We want to get this right. So that takes time.
What are your consolidated practice directions?
I'm proud of this. It's part of a philosophy of simplicity. We have nearly 50 practice directions floating out there, dealing with things like court attire, how you address judges and calculate delays.
People don't know exactly where all the practice directions are, so we've consolidated all of them and will introduce a system to record and announce all modifications.
Tell me about your hybrid court record and electronic court seal.
It’s part of our effort to adopt a technology-neutral stance for documents. We are courts of record. So, we're living through this transition from paper to electronic filing. We are trying to accommodate this change.
The court seal is like electronic signatures. We're introducing the idea that you don't have to have a press on paper to reflect the seal, but you can do it electronically as well.
What improvements are you making to your website?
If you look at our website, you'll see that it can stand some significant improvements, because it's not been redesigned for approximately 15 years.
The first phase will enable parties in the public and media to find information about court hearings. Later, we are looking at adding an interactive hearing calendar, where the court will host its sitting sessions across the country, and counsel and software apps will be invited to input their attendance or availability directly through the site.
You have been through many phases of technological disruption at the Federal Court of Appeal.
These developments and technology are a godsend for the federal courts. Since our court sits across this vast country, we've always lived through the challenge of distances.
Back in the 70s, judges used to get on the train here in Ottawa, and they used to set out for the Western provinces, and they would be gone for three weeks with the registrar and go from town to town and hear cases and come back and write their judgments on the train.
When the fax was new, it became a significant development for the court in the 70s. And now all these developments make the distances shorter, allowing us to cover this country in a way that is much more efficient than before.
*Answers have been edited for length and clarity.
