The practice of law is frequently challenging—even at the best of times. So too is the administration of justice, at all levels of the court system. While there have been significant, helpful justice system reforms instituted since the lockdowns in response to Covid-19 began on Tuesday March 17, 2020, we must not forget the importance of in-person hearings. This is particularly the case when it comes to self-represented litigants (“SRLs”). There really is no substitute for one-on-one in-person dialogue between SRLs and pro bono or Amicus lawyers. Through my representation of two former SRLs before both the Court of Appeal for Ontario and the Supreme Court of Canada—as well as having acted on behalf of many other self -represented persons as a volunteer for Pro Bono Ontario—I have learned just how important in-person communication and hearings can be. With that said, virtual hearings have also shown us that, in certain cases, there are more efficient alternatives to in-person hearings.
While the author is a strong advocate for a hybrid in-person and virtual model post-pandemic, it is important to point out that, prior to the pandemic, our court system was in need of significant technological updates. For example, the courts were overly reliant on hardcopies, rather than electronic filings, of materials. Service by facsimile had become an anachronism. Wait times and travel times prior to hearings could waste entire days and were expensive. Further, there are obvious benefits to working from home. By avoiding lengthy and frustrating commutes to work, many lawyers and court staff have been able to enjoy the benefits of having more time to spend with their families, as well as satisfying their needs for self-care and cultivating their psychological well-being.
Prior to delving into the subject of SRLs, the author would suggest that, in the post-pandemic world, all appeals before the Supreme Court of Canada and provincial/federal appeal courts should presumptively be in-person. All interlocutory motions before provincial/federal appeal courts should presumptively be remote (where the matter is not being decided in writing)—except in the case of SRLs wherein any oral hearing should be in-person. At the Superior Court level, any trial should presumptively be in-person, as well as any motion that could be dispositive of an action on a final basis. Any interlocutory motion should presumptively be remote, unless an SRL is involved—in which case, it should presumptively be in-person. All Assignment Court hearings or criminal court set dates should presumptively be remote, except where there are SRLs, in which case they should presumptively be heard in-person. Much of the author’s support for in-person hearings for cases involving SRLs relates to the rise of pro bono services in such jurisdictions as Ontario and Québec. In-person duty counsel programmes at the Ontario Superior Court of Justice and Court of Appeal for Ontario are of invaluable assistance to both the court and SLRs themselves. These programs are very difficult if not impossible to replicate on virtual platforms because there is so much value to being present in the courthouse to speak to many litigants in a short period of time and shuttle between them and opposing counsel in an effort to narrow issues and even resolve cases.
With respect to SRLs, such cases are increasingly common—as too many Canadians are simply incapable of bearing the financial burden involved in retaining a lawyer to represent them. Consequently, the courts are increasingly confronted with the unique challenges that SRLs pose. There are several basic principles associated with SRLs that we must keep in mind, and I would submit that upholding said principles is most effectively and efficiently accomplished in-person.