Federal Court head laments ‘unwelcome informality’ in virtual hearings

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OTTAWA — From attendees in T-shirts to cameras pointed at unmade beds, Federal Court Chief Justice Paul Crampton says he’s noticed an increase in “unwelcome informality” during virtual hearings, particularly among young lawyers, since COVID-19.

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Speaking at a legal discussion Tuesday on immigration law organized by the Canadian Bar Association (CBA), Crampton lamented a drop of decorum in the era of hybrid and virtual hearings, as well as a noticeable decline in civility in the courtroom.

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He said the decline was particularly noticeable among young lawyers, who aren’t being “mentored as well” as they used to be.

“Civility … seems to have declined and that’s unfortunate,” Crampton told attendees during the virtual talk.

“There’s more unwelcome informality, even to the point that people, they’ve got their webcam facing … their bedroom with an unmade bed, or kids running behind them, or they’re in a T-shirt,” he added.

He said the problem got “so bad” during the COVID-19 pandemic that his court even considered forcing all lawyers to wear their gowns during virtual hearings. At the time, many courts set aside gowning requirements for lawyers appearing virtually.

Post-pandemic, the longtime chief justice of the Federal Court said that “we’re still seeing some unwelcome informality, especially among younger people.”

That extends to how some lawyers handle their cases in ways that make judges’ jobs more difficult. For example, he pointed to cases in which counsel “dumps” 3,000 documents into hearings for a stay of proceedings or cites “40 or 50 cases” when only three or four would be sufficient.

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“They’re cutting and pasting, and it makes our job a lot more difficult reading submissions, especially (from) younger counsel” who didn’t get the mentoring available pre-COVID, Crampton said. “That’s not welcome at all.”

He counselled young lawyers to know their case “cold” so that judges can jump in during submissions and ask questions right away without derailing their arguments.

“It’s really painful to sit and listen to somebody read their submissions,” he said. “I just want to make sure that you feel like you got your fair hearing. And if I detect that for you, that means you standing up and reading your … darn notes, I’m going to let you do it, even though it’s brutal.”

During the conference, Crampton also spoke extensively about the significant budget shortfall afflicting the central service provider for all four federal courts, the Courts Administrative Service (CAS).

He said that the financial situation is a “crisis” and that CAS is in a deficit situation that is forcing the court to consider drastic measures to balance the budget, as first reported by the National Post last week.

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“It’s the financial situation that’s a crisis… We’re not in a crisis. We’re keeping the trains largely running on time, except for those few week delays,” he said, referring to additional nine-week delays in Toronto and Vancouver and a 12-week delay in Montreal for a court date for some immigration cases.

He reiterated that his court is facing an unprecedented caseload and expects 24,000 immigration cases to be filed by the end of the year. That’s four times the yearly average in the five years before the COVID-19 pandemic.

“For any entity, any public entity, to go over its budget, that’s illegal,” he said of CAS’s deficit. “And so, to avoid that happening … steps are going to have to be taken that are going to have the result of reducing the level of service at our … registry counters.”

“We are looking at possibly having to reduce the number of days we sit or reduce the number of judges we send out into the regions,” he added. “There just isn’t money to pay for certain types of activities and certain types of initiatives. So, it’s an unprecedented situation.”

He said those measures will have to be put in place unless the government provides additional funding to CAS quickly.

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Crampton declined to comment on what was discussed during a meeting of the four chief justices of Canada’s federal courts and Minister of Justice Arif Virani last week.

But he said that while the Federal Court’s case numbers have surged, its compliment of judges has barely increased.

“We’ve only increased our compliment by four judges, and we just happen to be down four puisne judges,” he said. “So we haven’t increased our compliment at all, and we’re trying to deal with a 400% increase in (immigration) filings.”

He also noted his court is doing its part to reduce costs by putting in place numerous cost-saving or efficiency-increasing measures. Those are aimed at “reducing the hearing time, reducing the writing time, and reducing the reading time” necessary in certain types of cases so that judges can take on more files.

He noted said judges are already “double-booked” when they do hearings in Montreal, Toronto and Vancouver, meaning they are assigned extra cases they can hear if one is removed from the docket at the last minute.

He also pointed to a pilot project the court put in place to streamline certain immigration files that is “going really well” but that, because of CAS’s budget shortfall and flailing and outdated IT systems, is being tracked “manually on an Excel spreadsheet for now.”

National Post
cnardi@postmedia.com

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