Speaking Notes for the Opening of the Courts
Chief Justice Paul Crampton
Montreal, September 8, 2022
(Speech delivered in French and English)
Thank you, Madam Bâtonnière.
First of all, allow me to thank Bâtonnier Mousseau for giving me the opportunity to speak.
The opening of the courts in Montreal is a landmark event marking the beginning of the legal year. I am always thrilled to participate.
Today, I would like to discuss four topics. Thankfully, I think they all relate to theme of start of the legal year: “Building the Future.”
First, one of the Federal Court’s top priorities at this time is to achieve a fair balance between the number of hearings held in person and by videoconference. As Chief Justice Wagner reiterated yesterday, the courts simply cannot return to the pre-pandemic model. It is our responsibility to continue with the digital shift that has begun and which was accelerated by the COVID-19 pandemic.
Among other things, this involves distinguishing between the types of cases that are conducive to in-person hearings and those that can be heard via videoconference. In this regard, in June of this year we announced that beginning in September, we would be scheduling all hearings of three hours or more in person.
As for shorter hearings, parties will have a choice between hearing formats. There seems to be considerable enthusiasm for videoconferences for case management conferences, quick motions, applications for judicial review involving routine immigration-related matters, and all other matters that are likely to be handled quickly. There are clear efficiency gains related to this hearing format. In addition, the fact that parties can select the hearing format that best suits their needs is likely to support greater access to justice.
That said, we have received very few requests for in-person hearings since the beginning of the pandemic—despite the fact that our judges are more than willing to return to the courtroom and that we are encouraging parties to take advantage of that.
In a nutshell, it would not be in the long term interest of the Court, or indeed the administration of justice in general, for the Court to become primarily a Zoom court. So, the Court will be vigilant in ensuring that an appropriate balance between in-person and videoconference hearings is achieved. If we have to extend the in-person presumptive mode of hearing to more types of cases in order to achieve that balance, we will do so.
Of course, we will also continue to be open to hybrid hearings. Generally speaking, these are in-person hearings in which one or more witnesses, or perhaps even legal counsel, participate remotely. We have been working hard to ensure that the equipment necessary to facilitate these types of hearings is deployed in a greater number of our courtrooms across the country.
Consolidating the digital gains that have been achieved over the last two years also means reinforcing the transition away from paper by continuing to encourage the use of electronic records, within in-person hearings. This is something that we addressed last June, in the Update #8 and Consolidated Covid-19 Practice Direction that we issued.
I will now move on to my second topic, the composition of the Court. In my opinion, the Court must be more representative of Canada’s rich demographic mosaic and regions, of course, while still continuing to focus on its members’ exceptional legal skills. This is essential to the public’s confidence in the Court.
To attract better candidates in some of the Court’s main jurisdictions, and in a spirit of the ongoing search for excellence in these areas, last June I announced a pilot project to create a few new chambers or divisions within the Court.
For the first phase of the project, we established three new chambers. The first handles intellectual property and competition law. The second is dedicated to admiralty law, and the third, to class action suits. If this project is successful, we plan on creating other chambers, notably to handle Indigenous law and national security.
Given Minister (David) Lametti’s presence here today, I will simply add that it is not difficult to imagine one or more additional chambers, for example, to deal with a new area of jurisdiction that Parliament might decide makes sense to allocate to the Court.
As for my third topic, I will be speaking on behalf of Chief Justice (Marc) Noël, who could not be here with us today, to provide a brief update about the Federal Court of Appeal’s activities.
Since September 2021, the Court has offered all hearing format options to persons before the Court. Those who wanted were able to appear in person, and those who wanted to appear remotely were able to do so.
In a notice to the profession and parties published in June 2022, the Federal Court of Appeal indicated that it planned to resume in-person hearings beginning in September 2022, assuming the public health situation continues to improve. This method of appearing before the Court will once again become normal procedure.
The Federal Court of Appeal will review requests for videoconference or hybrid hearings on a case-by-case basis. Of course, that Court will return to these hearing formats if the public health situation deteriorates.
As for public access to hearings, the gallery is open to the public again. The Federal Court of Appeal will also continue to allow the public to attend all online hearings, technology permitting.
The Federal Court of Appeal will also continue to ask parties to submit all documents electronically and to encourage parties and the public to communicate with the Registry by phone or email whenever possible.
Lastly, for my fourth topic, Chief Justice Noël and I would like to provide you with an update on our procedural bijuralism pilot project that I spoke to you about in the fall of 2019.
This pilot project is in response to the discomfort experienced by many Quebec attorneys towards the Federal Courts’ rules of procedure. This initiative allows parties instituting proceedings who are represented by counsel who are members of the Barreau du Québec and who both have consented to have these proceedings heard before the Federal Court and Federal Court of Appeal under the Code of Civil Procedure to do so, subject to necessary adjustments.
Consent has been provided four times to date. There are currently no active cases that are part of this pilot project, but it is still possible to take advantage of it.
The pilot project was launched just before the pandemic began. That may explain the lack of excitement in the project thus far. We plan to continue to offer this option throughout the coming year and will review its usefulness in fall 2023.
We therefore encourage counsel to take advantage of the pilot project while they still can.
Before concluding, I would like to underscore that we still have three judge positions to fill at the Federal Court here in Quebec. I therefore encourage all members of Barreau de Québec who practise intellectual property law, maritime law, administrative law, immigration law, Indigenous law or national security law, as well as reputable litigants throughout the province, to consider applying to join the ranks of the Federal Court. Think about it, especially if you could help us reach our goal of improving the Court’s diversity and gender parity.
In conclusion, thank you once again, Madam Bâtonnière, and I wish all those here a great start to the 2022 legal year.