Written “hearings” as an alternative format during the COVID-19 emergency

As summarized in our periodically-updated post regarding appellate courts’ responses to COVID-19, certain courts are using written “hearings” as an alternative hearing format during the emergency period. Written hearings involve the panel rendering a final disposition after reviewing the filed written materials, possibly after holding a special-purpose oral hearing to allow the panel to ask questions of counsel (or the parties if self-represented). Written hearings are common in certain administrative law contexts and are the norm for applications for leave to appeal in certain appellate courts, including the Supreme Court of Canada. However, Canadian legal traditions have long favoured oral hearings for appeals on their merits. There are numerous advantages to oral hearings, including the ability of counsel to respond in real time to concerns raised by the judges.

Written hearings in the Court of Appeal for Ontario

The practice of holding written hearings in the Court of Appeal for Ontario is developing. The Practice Direction Regarding the Electronic Conduct of Matters during the COVID-19 Emergency [PDF] dated April 6, 2020 provides that, “[f]or matters scheduled for oral argument, the court will contact the parties and will determine if the matter will proceed by way of a remote hearing […] or in writing.” Although this does not expressly refer to a requirement of consent, the Notice to the Profession and the Public dated March 17, 2020 provides that, at least for non-urgent matters, requests for an appeal to be heard in writing “should only be made if all parties consent […]”.

It is unlikely that a single judge or even a panel of the Court of Appeal has the jurisdiction or power to order that an appeal be “heard” in writing over the objection of one of the parties. All appeals are statutory, and the Court of Appeal for Ontario is a statutory court that derives its jurisdiction and powers solely from statute. The Courts of Justice Act provides in section 7 that a “proceeding in the Court of Appeal shall be heard and determined by not fewer than three judges sitting together, and always by an uneven number of judges.” The Rules of Civil Procedure contemplate that the hearing of the appeal on its merits will involve oral argument by counsel or the parties (as opposed to a motion for leave to appeal, which is determined in writing). Although the Court has some degree of jurisdiction to control its own process, it could not exercise that jurisdiction to deny parties their procedural right to an oral hearing under the Courts of Justice Act and the Rules. Similarly, such jurisdiction could not be self-generated by the Court through the issuance of a Practice Direction.

Carleton Condominium Corporation No. 476 v. Wong

In at least one reported case, however, a judge of the Court of Appeal for Ontario has ordered an appeal to proceed over the objection of the appellant. In Carleton Condominium Corporation No. 476 v. Wong, 2020 ONCA 244 (an appeal regarding common expense arrears pertaining to a residential condominium unit), Justice Paciocco ordered the appeal to proceed in writing, together with a teleconference to be convened should any panel members determine that questions are necessary. This order was made over the objection of the appellant (who was self-represented but a lawyer). Justice Paciocco did not indicate the source of the Court’s jurisdiction to make the order.

As Wong does not expressly address whether the Court of Appeal has jurisdiction to require an appeal to be “heard” in writing (as opposed to an oral hearing before three judges sitting together), it does not change our view that the Court of Appeal lacks this jurisdiction. Procedural fairness at the appellate level requires the Court of Appeal to hear orally from the parties unless they waive their right to an oral hearing (or unless hearing from the respondent is unnecessary to dismiss the appeal). This long-standing practice in appellate courts reflects the requirements of natural justice.

However, even if the Court of Appeal has the jurisdiction to order parties to proceed in writing, Wong likely represents the sort of very narrow circumstances that could potentially justify such an order. The critical feature of Wong was likely that the respondent would have suffered prejudice had the matter been adjourned. Further, a remote oral hearing was not practicable because it would have unfairly advantaged the respondent (given the appellant’s lack of experience working with electronic documents, combined with the fact that his paper files were not safely accessible to allow him to prepare for a remote oral hearing).

Justice Paciocco also considered the following factors supporting a written hearing: (1) the appellant’s written materials presented the issues with clarity and his position was well developed; (2) the respondent’s materials were responsive; and (3) the issues raised on the appeal were capable of being addressed in writing. Those issues largely turned on statutory interpretation, which were capable of being adequately addressed in writing, and alleged misapprehensions of evidence, which could be determined on the face of the record.

Justice Paciocco also noted that the “appellant did not take the position during the teleconference that the appeal could not be resolved on the written record.” Rather, the appellant sought an oral hearing given his “preference for taking the panel through the arguments during an in-court oral hearing”. According to Justice Paciocco, the appellant’s “preference is understandable, but it is not in the interests of justice.” The interests of justice in this context included reducing the backlog of cases that will very likely follow the return to normal operations. As Justice Paciocco wrote: “it is not in the interests of justice to overburden the court by adjourning matters that can be dealt with fairly, as scheduled. The backlog that will be created by cases that must be adjourned to protect the public and ensure fair hearings will be imposing and it should not be unnecessarily aggravated.”

Most cases not suitable for written hearing

Most cases are likely not as clearly suitable for a written hearing as Wong (even if the necessary jurisdiction exists). For example, in Miller v. FSD Pharma, Inc., 2020 ONSC 2253 (a class action), Justice Morgan of the Superior Court of Justice refused to order an alternative hearing format over the plaintiff’s objection. Justice Morgan held that he “would not want to hold a hearing that in its very format raises due process questions for whichever party ends up being unsuccessful”. Although Justice Morgan was prepared to hold the hearing electronically, in his view it was not “appropriate to compel the moving party to proceed under conditions where Plaintiffs’ counsel perceive that they may not be able to present the case as effectively as they would in person.”

However, the requirement of an oral hearing does not necessarily have to occur as an in-person hearing. There are cases where appellate courts have accommodated the requirement for an oral hearing through the use of video-conference technology, including over the objection of a party (see e.g., Association of Professional Engineers v. Rew, 2020 ONSC 2589). This is expressly provided for in Rule 1.08 of the Rules of Civil Procedure (including in respect of appeals). In Arconti v. Smith, 2020 ONSC 2782, Justice Myers recently referenced this Rule in ordering that examinations for discovery take place by video conferencing prior to a mini-trial (unless the plaintiffs declined to conduct the examination). The absence of an equivalent to Rule 1.08 in respect of written “hearings” suggests that parties are entitled to at least a remote hearing for an appeal on its merits, unless they consent otherwise.

Addendum: In Wong, the Court of Appeal subsequently dismissed the appeal on its merits.

Addendum No. 2: Since Wong, the Court of Appeal for Ontario has decided other appeals that were “heard” only in writing, including over the objection of a party. 

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Sopinka and Gelowitz on the Conduct of an Appeal, 4th Edition

Appellate litigators and judges have turned to Sopinka and Gelowitz on the Conduct of an Appeal for guidance since its first publication in 1993. Now in its fourth edition, this authoritative text remains the go-to resource for both novice and seasoned litigators seeking direction on best practices in preparing and presenting appeals. Originally written by former Supreme Court of Canada Justice John Sopinka and Osler partner and litigator Mark Gelowitz, this latest edition adds Osler’s David Rankin as co-author. This up-to-date version is the most current textbook available on appellate practice in Canada and is invaluable for lawyers looking to avoid costly errors while gaining a deep understanding of the procedural and jurisdictional aspects of launching and conducting appeals.

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