One of the more useful procedural tools for reducing the complexity and increasing the speed of civil proceedings is the chambers or scheduling appointment. Where counsel can agree on most of the terms of an interim order, or where the issues are procedural rather than substantive, you may be able to book a brief appearance in judge’s chambers to obtain an order.
Commercial and estates litigators in Toronto are familiar with these appointments, referred to colloquially as "9:30s" in reference to their start time. As a result of their success, the Toronto Superior Court has recently implemented these chambers appointments on the civil list as well, with the result that many civil litigators are likely to soon encounter their first chambers appointment, if they have not already done so.
Chambers appointments can present counsel with some unique challenges, particularly for new litigators. This article arms you with some basic dos and don’ts to employ on your next chambers appointment.
Counsel do not gown for these appointments, but should dress in appropriate business attire. The judge will be dressed for court (absent gown and sash).
Clients: In or Out?
Chambers appointments are generally limited to counsel. If a party is self-represented, the judge may wish to hear the appointment in open court with a court reporter present. If you wish to bring your clients into chambers with you, you must ask for permission; it is up the judge to control the process in his or her chambers. Let the Registrar or Court Services Officer know that your clients wish to have permission to accompany you into chambers. Be prepared to explain why you think your clients’ presence is necessary.
Before the Appointment
Make sure you have discussed and attempted to resolve any points of contention with opposing counsel beforehand. Counsel are advised to keep in mind the "3 Cs" of Justice D.M. Brown, as he then was: "Cooperation, Communication, and Common sense." A judge will not be pleased to realize in chambers that they are witnessing counsel’s first conversation about the issues at hand.
At the same time, it is not necessary to debate the overall merits and weaknesses of one’s case with opposing counsel in the hallway while waiting to be called into chambers. Some counsel use this approach to exhaust or disorient you before you have entered chambers. Don’t take the bait. If you’re there to get a procedural order, keep the debate focused on procedural matters.
Do I Bow?
No. Counsel do not need to bow upon entering or exiting the judge’s chambers.
Make Small Talk?
As in all court appearances, the best approach is to take your cue from the judge. A bit of polite conversation as everyone gets settled and before the Registrar withdraws is usually perfectly appropriate. But don’t go overboard. These are short appointments, and you will likely need every minute of them.
Should I Litigate?
It can be difficult to reconcile the atmosphere of cooperation that is intended to characterize these appointments with the need to guard your client’s interests. Do come prepared to argue, but again take your cue from the judge. Judges want to focus on resolving the narrow issue at hand, and will be sensitive to any attempts by counsel to turn the appointments into an advance hearing of the motion or application.
At the same time, you should not hesitate to advance your theory of the case to the extent it is relevant to the appointment. If opposing counsel incorrectly summarizes your position, correct him or her if it is necessary: that is, if the inaccuracies have any bearing on the issues being addressed on the scheduling appointment.
Otherwise, ignore gratuitous sarcasm, hyperbole, and personal comments about you or your client. The judge will have seen this all before, and is likely to have less tolerance for it than you do. You have 10 or 15 minutes – don’t waste them by joining opposing counsel in a race to the bottom.
Do I Interrupt?
The lack of formal procedure in these appointments can leave junior counsel vulnerable to being railroaded, so stay focussed. There is no set time limit for each counsel to make their "submissions" and indeed no submissions as such. Be prepared to interrupt, with acquiescence of the judge, if opposing counsel does not allow you to speak. And do not wait too long to do so. These appointments are short, and once the judge starts writing that endorsement, it can be difficult to change the course of the appointment.
Can I Get Costs?
Costs are generally not awarded on these appointments. The underlying rationale is that chambers appointments are the result of counsel working effectively and expeditiously together to move their case through the system.
However, if the scheduling appointment would not have been necessary but for intransigence of the opposing party, your client may be justified in asking for his or her costs. Politely ask the judge as to the appropriateness of making an endorsement providing that costs arising from and incidental to the appointment may be spoken to at the next motion/hearing/appearance.
Chambers Appointment, or Motion?
Where chambers appointments are an option, do not assume a formal motion is the only way to deal with procedural problems, especially compliance with a former order. Chambers appointments can be more cost effective than a motion and address many of the same difficulties. At the same time, as indicated, the risk of moving more quickly through a chambers appointment can expose your client to a risk of eating his or her costs for the negotiations leading up to the appointment.
About the Authors
Heather Hogan is counsel with the Retirement Homes Regulatory Authority and Laura Cardiff is an associate at Whaley Estate Litigation.