May 27, 2020

In 4352238 Canada Inc. v. SNC-Lavalin Group Inc., 2020 ONCA 303, the Ontario Court of Appeal heard arguments on whether an appeal should be heard in writing only. Deviating from the usual mode of oral and written submissions. The appellant objected to the matter being heard only in writing. Despite the objection, the court held that the appeal would proceed only in writing.

Justice Roberts wrote that the court has jurisdiction to order the mode of an appeal. The rules do not confer an absolute right to an oral hearing of an appeal.

Justice Roberts found that the matter was well suited to a written hearing. The appeal arose out of a narrow issue from an application for declaratory relief. It concerned the interpretation of a clause in a contract, with relatively straightforward facts, and the application proceeded on a paper record.

There was a mixed reaction of lawyers on Twitter to this decision. Some lawyers argued that this was a good use of judicial resources. Other lawyers argued that having only a written hearing would undermine the principle of open court and would leave clients feeling cheated out of due process.

I think the trend towards written hearings is a good thing. First, the issue of open court can be addressed through making counsels’ written submissions publicly available on the Internet. This can be done in a way similar to the Supreme Court of Canada. Second, technology can revolutionize conventional working habits. As legal theorist Richard Susskind writes we must question if services must still be delivered “face to face”.

In Online Courts and the Future of Justice, Susskind writes that clients want outcomes that professionals bring. “These outcomes have two dimensions – practical results (a job done) and emotional effects (an appropriate feeling, perhaps of reassurance or confidence). And when these outcomes can be delivered in new ways that are demonstrably cheaper, better, quicker, or more convenient than the current offering, we can expect the market to switch to the alternatives.”

Susskind argues that we must not confuse how we deliver services with what we deliver. “It is to assume that there is something intrinsically valuable, indispensable, in our current ways of working. It is to fixate on today’s processes and disregard their broader purpose.”

In considering the future of our courts, we should ask whether the outcomes of today’s labour can be delivered in different ways while maintaining the principle of open court. Written hearings for appeals may be the new normal.