Written "Hearings" As An Alternative Format During The COVID-19 Emergency

• Published date: 26 June 2020
• Subject Matter: Litigation, Mediation & Arbitration, Coronavirus (COVID-19), Court Procedure, Trials & Appeals & Compensation, Litigation, Contracts and Force Majeure, Operational Impacts and Strategy
• Law Firm: Osler, Hoskin & Harcourt LLP
• Author: Mr Mark Gelowitz and W. David Rankin

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...