A Silver Lining – The Argument for In-Person Case Conferences
We reported yesterday about a noteworthy decision from the Ontario Superior Court of Justice in Cousins v. Silbourne – which was issued the very same day that some important new court Guidelines on in-person hearings came into effect. In that ruling, Justice Ricchetti declared that case conferences in Family matters are presumptively to proceed in-person – even if the parties themselves each consent to remote/virtual hearing methods.
With due respect, this is a startling ruling. For the reasons outlined here, we argue that there should be no such judicial presumption in place; moreover we call for a retraction or reversal of those Guidelines in the interests of justice.
Petition to Amend the Requirement For In-Person Court Attendances
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Case Conference Objective
To frame the discussion, it is necessary to look at the objectives for case conference and case management. Ontario’s Family Law Rules sets these out in the clearest terms, in Rule 17(4) which states:
Purposes of case conference
(4) The purposes of a case conference include,
(a) exploring the chances of settling the case;
(b) identifying the issues that are in dispute and those that are not in dispute;
(c) exploring ways to resolve the issues that are in dispute;
(d) ensuring disclosure of the relevant evidence, including the disclosure of financial information required to resolve any support or property issue;
(d.1) identifying any issues relating to any expert evidence or reports on which the parties intend to rely at trial;
(e) noting admissions that may simplify the case;
(f) setting the date for the next step in the case;
(g) setting a specific timetable for the steps to be taken in the case before it comes to trial;
(h) organizing a settlement conference, or holding one if appropriate;
(i) giving directions with respect to any intended motion, including the preparation of a specific timetable for the exchange of material for the motion and ordering the filing of summaries of argument, if appropriate; and
(j) in the case of a motion to change a final order or agreement under rule 15, determining the most appropriate process for reaching a quick and just conclusion of the motion.
The overarching themes revolve around narrowing the issues, exploring settlement, reviewing outstanding disclosure, and setting timetables. With these legislated objectives in mind, it seems frankly counter-productive to create a presumption that case conferences should be held in-person.
There are several reasons for this.
First, let’s consider the more practical, client-focused experience of a case conference. Often, the case conference is the first opportunity for the parties to meet a Judge. Most Family cases are subject to case management by the same Judge up to trial stage. If that case management Judge has enough information (and proper case conference briefs), then that Judge will usually provide recommendations to resolve some or all the issues that the parties are arguing over.
In our experience, and in the experience echoed by many of our colleagues, only about 10% of cases (or fewer) will be resolved entirely at the case conference stage. This is often a result of several factors such as:
- Outstanding disclosure (such as pension valuations, property assessments, income or business valuations, banking and other documents dating back to the date of separation);
- The parties needing more time to think about and process the court’s recommendations; or
- One or both parties wanting to continue the battle – rather than resolve it in a speedier manner.
With this relatively dim chance of success around settlement, it seems an unnecessary added requirement to have counsel and their clients attend a case conference in-person, essentially by default. True, the Cousins v. Silbourne decision qualified that virtual case conferences can occur if one or parties shows “a clear and compelling reason” to do so, but this is a high threshold to meet, with little benefit in return.
The Presumptive Guidelines
Admittedly, there is a well-intentioned impetus behind this judicial stance in favour of in-person attendance. This brings us back to the recently-released document from the Ontario Superior Court of Justice (SCJ) titled “Guidelines to Determine Mode of Proceeding in Family” (the “Presumptive Guidelines”). They took effect on April 19, 2022, and provide guidance to SCJ Judges, and by extension to litigants and the public.
These Presumptive Guidelines stipulate that the presumptive mode of proceeding for “all (i) case conferences, (ii) settlement conferences, and (iii) trial management conferences with a settlement focus, will be held in person unless a different method of attendance is approved by the Court in advance.” In the judgment in Cousins v. Silbourne, Justice Ricchetti expressly refers to the Guidelines when pronouncing on the rule calling for presumptive in-person case conferences.
Yet since the early stages of the COVID-19 pandemic the SCJ has recognized the advantages of remote hearings of all types, and took steps to set out hybrid proceedings for procedural matters. With those benefits in mind, it is surprising that Justice Ricchetti determined that in-person interaction hearings and advocacy are to remain the primary go-to at the case conference stage.
Some experienced members of the Family bar, as well as other stakeholders in the justice system, are concerned that these Presumptive Guidelines are a step backwards. Following them may result in an increase in delay and expense. By extension, this can only diminish access to the justice system, not promote it.
The Merits of Virtual Hearings
No one can argue that there is some benefit to having in-person case conferences. The formality, decorum, and experience of being in a courthouse, and in a courtroom before a Judge, can have significant influence on the parties to any litigation. The court experience can be a major one – plus, the court itself has a toolbox of options to encourage settlement between the parties. Others argue that there are broader interests at stake: Litigants without suitable technology or internet access who are not tech-friendly might be left behind.
Assuredly, all of these elements play an important part in the justice system, and in the process of dispensing justice in any individual case. Yet in our view, the cumulative advantages of virtual hearings far outweigh the corresponding benefits of presumptive in-person hearings.
Still, cynics may argue that having litigants sit around the courthouse hallways and wait, is tantamount to a system-imposed screening and forced attrition – because parties might be prompted to settle their cases just to get them over with. This does not seem like a fair and balanced approach to the administration of justice.
The Case for Dropping the Presumption
This risk is remedied by the use of remote/virtual case conferences, because it actually improves access to justice and the expeditious resolution of disputes in several ways.
First, let’s revisit the odds of settlement: If only 10% of cases resolve at the first case conference, it may be a fair inference that these same 10% would also resolve their matters via a Zoom case conference. This renders the in-person experience to be arguably unnecessary.
Second, the costs savings of Zoom conferences are significant. No travel, no parking, no traffic. Court security line-ups, confrontations, and courthouse conflicts are all eliminated. There is no more sitting around for several hours or the entire day. Legal expenses each of the lawyers representing the parties are also significantly reduced.
Third, access to justice can only continue to improve. Clients can choose their preferred lawyer from anywhere in the province. Lawyers will be more readily available for the currently under-served northern and rural communities. Clients with legal aid certificates will be more likely to secure a lawyer.
Fourth, technology and the internet heighten accessibly to the justice system, as compared to having to travel several hours to the courthouse and back. Most people can access a case conference through Zoom – even if its with the assistance of a friend, family, or employer. Justice “hubs” can be set up at libraries or the SCJ’s family law information centres, or in empty SCJ courtrooms, for parties who cannot access the required technology. There are many other innovative ideas to address the issues of technology and connectivity.
Fifth, the court can implement procedures to screen and assist victims of domestic violence who are involved in family court matters. This will also help to regulate and prevent litigants who perpetrate domestic violence from using the litigation process to exact further harm, harassment, and psychological damage on their ex-partners.
Sixth, the toll on peoples’ mental health of going to court in-person, confronting their ex-partner, dealing with conflict and potential health risks lingering from the pandemic can be remedied by via Zoom case conferences. Parties can conduct their hearing from the safety and privacy of their own homes.
Seventh, the rise of self-represented litigants is a problem that plagues the Family Court system. Remote hearings by Zoom have stymied this, somewhat. It has helped those who would otherwise have to resort to self-representation, by freeing up more Family lawyers. Those lawyers could keep practicing and serving clients remotely, despite health concerns, daycare, and other needs. For example, clients in rural and northern communities were retaining lawyers with legal aid certificates from the GTA and other larger centres.
If in-person hearings return to the old norm, many Family lawyers will simply no longer practice family law. That is the benefit of a law degree: We can choose to practice in any area of law that does not require in-person attendances. (And the list is endless: Wills, estates, real estate, corporate, tax, business and so on). An exodus of Family lawyers will result in fewer lawyers accepting legal aid certificates, and increased time and expense associated with in-person hearings.
All of this will result in alarming spikes in the number of self-represented litigants.
Plus, self-represented litigants often require greater time and resources to adjudicate their matters. They may be unable to focus on the legal issues. They may not understand the law, fail to comply with the Family Law Rules, and be unaware that there are rules of evidence and court-issued practice directions that they need to follow. They can sometimes be vexatious. All of this often results in mental and emotional strain on the judiciary, and can lead to burnout, inertia and the justice system’s slide to entropy.
Finally, it’s important to remain mindful of the primary objectives of the Family Law Rules: To save time and expense. Rule 2, (2) to (4) set out these objectives clearly:
(2) The primary objective of these rules is to enable the court to deal with cases justly.
Dealing with cases justly
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
Duty to promote primary objective
(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.
When viewed holistically, the goals of this Rule are amply served by favoring virtual hearings over in-person ones.
Further support for the use of virtual hearings hinges on timeliness. The timely access to the justice system is a fundamental principle espoused the Supreme Court of Canada (SCC) in several decisions. As just one example, in Hryniak v. Mauldin, 2014 CarswellOnt 640 (S.C.C.) the SCC admonishes that there must be a substantial culture shift in the civil litigation system, to ensure that courts are able to provide timely and affordable access to justice.
Toward this end, courts must adopt processes which are “proportionate, more expeditious and less expensive means to achieve a just result than going to trial”. As Karakatsanis J. wrote at para. 28 of Hryniak:
“…[t]he proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.”
This principle adapts itself well, when justifying the use of virtual hearings. True, the in-person hearing model for case conferences may have been the traditional format, but this does not guarantee that it is still the best, timeliest, and most effective one.
Finally, a movement away from the presumptive in-person hearing model may give rise to smaller administrative obstacles, but these can be readily overcome. For example, any procedural issues that linger beyond a first case conference (such as outstanding disclosure), can be simply resolved via written materials, and by a 14B motion. Or, they could be resolved at a continued case conference via Zoom.
Call to Action
For all these reasons, we call on SCJ’s Chief Justice Morawetz and the Attorney General to reconsider their rationale behind imposing a presumption in favour of in-person case conferences.
In our view, in-person attendance should only be triggered when there is a real settlement-oriented component in place – when the parties and court have all the information required to make an informed decision (or recommendation), and only once the case is ready for conferencing and adjudication.
We look at it this way: In connection with the Family justice system, the pandemic has given us a silver lining – namely many gains in speed and efficiency. Let’s not lose that silver lining by insisting on in-person case conferences when virtual hearings serve the same purposes equally well – if not better.