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In a brief scheduling decision in 4352238 Canada Inc. v. SNC Lavalin Inc., Madame Justice Lois Roberts set a new precedent for the Court of Appeal for Ontario that the Court may order an appeal to be heard entirely in writing, even where one or more parties objects. In her words:
"It is also beyond controversy that the COVID-19 pandemic has created extraordinary circumstances to which we must all adapt as best we can. Since March 17, 2020, there have been no in person appeals heard at the Court of Appeal. More than 100 scheduled appeals had to be adjourned. Through a series of Practice Directions, this court has endeavoured to address the tremendous disruption caused by the pandemic. As a result, appeals are being heard in writing or remotely until in person appeals can resume. Case management conferences are being held to manage and schedule them.
Accordingly, it is well within this Court's jurisdiction to order that a civil appeal be heard in writing when the due administration of justice requires it. During these extraordinary times, judicial resources are strained. The ability to hear appeals remotely is not unlimited. Where appropriate, some appeals must be heard in writing in order to ensure that appeals continue to be heard in a timely and an orderly fashion."
Many, of not most, litigators will candidly admit that most appeals are won or lost on the written record (i.e. the factums) and that the oral hearing itself rarely has a significant impact on the result. This decision implicitly recognizes that fact. More significantly, it is just one of many court decisions in Ontario and across Canada that respond to the current extraordinary circumstances by making changes that are likely to extend far beyond the end of of the COVID-19 pandemic – changes that, in many instances, will improve the efficiency of the litigation process and foster better access to justice for litigants.
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