Association of Professional Engineers v. Rew, 2020 ONSC 2589
CITATION: Association of Professional Engineers v. Rew, 2020 ONSC 2589
COURT FILE NO.: DC 19/028
DATE: 20200424
SUPERIOR COURT OF JUSTICE - DIVISIONAL COURT - ONTARIO
RE: Association of Professional Engineers v. Paul Douglas Rew
BEFORE: D.L. Corbett J.
COUNSEL: Andrew Faith – for the Appellant Arnold Schwisburg – for the Respondent
CASE MANAGEMENT ENDORSEMENT
[1] This endorsement reflects a case management conference conducted by teleconference on April 22, 2020.
[2] This application for judicial review will proceed on June 24, 2020, before a panel of three judges of the Divisional Court, for an estimated 3.0 hours.
[3] The hearing will be conducted as a video conference. ZOOM technology will be used. Further details about the videoconferencing process will follow in a subsequent endorsement.
[4] Neither counsel nor the court will gown for the hearing. Instead, business attire is required for anyone with a speaking role in the hearing. All parties must ensure that they participate in the video conference from appropriate surroundings and that they (and the Court) will not be interrupted or disturbed during the hearing.
[5] Counsel for the Appellant shall establish a password-protected electronic drop box from which materials may be downloaded and shall provide the court with the URL and password by May 22, 2020.
(a) All documents other than factums, counsel sheets, bills of costs, and costs outlines shall be uploaded to the drop box in pdf format.
(b) Documents should be labelled in a manner that identifies them clearly for members of the panel so that it is not necessary to open the document to understand what it is. Pages should be numbered sequentially within each pdf. If this is not practical, given the current state of the documents, then individual documents should be uploaded to the drop box in pdf form, so that each document is clearly labelled, enabling the court to find documents quickly during the course of the hearing.
(c) Factums, counsel sheets, bills of costs and costs outlines are to be filed in Word version. Where possible, the factums should contain hyperlinks for authorities and, if possible, hyperlinks to a “Factum Compendium”, described below.
(d) Books of authorities containing the full text of authorities should not be uploaded to the drop box. However, citations to cases in the factums are to provide, if possible, a hyperlink to the online version of cases. The only exceptions to this principle are authorities not available online, such as excerpts from textbooks, foreign law, or Canadian decisions not reported online: these should be collected in a small brief of unreported authorities and filed electronically.
(e) Parties may file a “Factum Compendium” containing single pages or brief portions of cases cited, and brief portions of evidence from the record referenced in the factum, hyperlinked from the factum. Where portions of cases are included in a compendium, the title of proceedings and headnote should be included as well. Where portions of the record are included in a Factum Compendium, the first page of the document and identification of where it may be found in the record should also be provided. The only exceptions to this principle are authorities not available online, such as excerpts from textbooks, foreign law, or Canadian decisions not reported online: these should be collected in a brief of authorities and filed electronically.
(f) Each party shall file a counsel sheet setting out the name(s) of all counsel appearing at the hearing and their estimated time for submissions.
(g) The parties shall file their agreement on the disposition of costs, or, if the parties have not agreed as to costs, then each party shall file its bill of costs and costs outline and any brief supporting materials relied upon in respect to costs. The court does not open costs materials until the conclusion of the hearing.
(h) All parties are permitted to (but are not required to) file the following additional documents (in addition to documents permitted under the Rules):
(i) A version of their previously filed factum with hyperlinks to cases and/or evidence;
(ii) A Factum Compendium, described above; and
(iii) A compendium for oral argument, containing excerpts of evidence and authorities to which counsel intends to refer in oral argument.
(i) All documents for use in the hearing are to be uploaded to the drop box by May 22, 2020, except that compendiums for oral argument, counsel sheets and costs materials may be uploaded any time prior to the hearing, so long as the panel is able to download these compendiums prior to the hearing.
[6] Mr Schwisberg was clear that his client is not consenting to the application being heard by video conference. On behalf of his client, he asked that the hearing be adjourned until it can be heard by way of an in-person hearing. The court rejected this request for the following reasons.
[7] First, as a matter of general practice, the consent of the parties is not required for the court to schedule the hearing by video conference. This is clear from the terms of the Practice Direction effective April 6, 2020. The court is faced with an unprecedented challenge maintaining the institutions essential for the continuation of the Rule of Law in the face of the COVID-19 crisis, and recourse to electronic hearings is a key aspect of the court’s response. Scheduling and conduct of court proceedings is not subject to the consent of the parties.
[8] Second, there is nothing about this particular case that renders it unsuited for a hearing by video conference. The hearing is conducted on the basis of a written record: no oral testimony will be heard. The parties are all represented by experienced and competent counsel, who should have no difficulty making their arguments understood to the court by means of video conference. Mr Schwisberg made the argument that the stakes, for his client, are very important. Indeed, they are, as is often the case in matters of professional discipline, a regular aspect of this court’s docket. However, this court has already heard three panel hearings by video conference during the COVID-19 crisis all three of which were of substantial importance to the parties. The relative importance of the case has nothing to do with whether the case can be heard fairly and efficiently by video conference.
[9] Third, Mr Schwisberg argued that the dynamics of a live hearing may be lost in a video conference. He cited an article published in 2007, co-authored by Professor Sossin (as he then was), and recounted an anecdote respecting appellate advocacy in which the late Justice Catzman of the Court of Appeal counseled appellate counsel to “watch the judges’ pens” during an appeal. The policy arguments for and against video conferenced hearings are not matters on which this court should opine. The Directions to the Profession are sets of policies and procedures directed with Province-wide effect in response to the COVID-19 crisis, and concerns about the means chosen to respond to the crisis are matters to be taken up with the Office of the Chief Justice, not individual judges across the Province. Of course, every judge retains the inherent jurisdiction to ensure that cases proceed fairly. However, the materials and arguments presented by Mr Schwisberg do no more than suggest that something may be lost in a video conferenced hearing. Something will be lost if court business does not continue, as best as can be managed, during the COVID-19 crisis, and I am not persuaded that any of the concerns raised by Mr Schwisberg justify departing from the processes established under the Directions to the Profession for the continuation of court operations.
[10] Finally, on the basis of the history of this particular case, there has been a lengthy delay in bringing this matter before the court. There are reasons for the delays, and I do not attribute blame or cast any aspersions by noting this past delay. However, the hearing was scheduled to proceed last December, and was adjourned at the request of Mr Schwisberg’s client, for reasons relating to his counsel’s inability to proceed, for justified personal reasons, last December. On the basis of the situation, as it then existed, the Appellant agreed to the adjournment from December 2019 to June 24, 2020, but on the understanding that another counsel would argue the appeal if Mr Schwisberg is unable to do so in June, and that the June return date is preemptory on the Respondent. In my view the appeal should go ahead on June 24th, by video conference, and it is so ordered.
[11] If counsel believe there are points from the case management conference that are not reflected in this endorsement, they should so advise the court by email as soon as they can.
[12] The court has endorsed its fiat on this endorsement this day; the unsigned version distributed to the parties today has the authority and effect of the signed version, a copy of which will be provided to the parties in due course after the suspension of ordinary court operations is lifted.
D.L. Corbett J.
Date: April 24, 2020