Gary Joseph | Mar 2022

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

I have never written to be popular. Those of you who know me can confirm that I say what I think and accept the consequences. So here goes.

How was the decision to bring us back to live court made? First, the pandemic is not totally over. What’s the rush? Are we going to gear down again if the pandemic deals us another wave? Second, what about the enormous benefits to clients arising from our Zoom courts? Here’s a few:

1. Cost savings: why should client X pay me to sit around a courthouse waiting for my case to be heard when the billing to the client for a Zoom attendance can be focused on the time actually spent?
2. Convenience: why should client X take a full day off work waiting around a courthouse when an hour or two on Zoom can suffice?
   
3. Child care: why should client X, perhaps a single mother, pay for childcare for a full day when a Zoom can save her the costs?
   
4. Efficiency and work-life balance: for the profession, is there really a need to drive to court, park, wait and then drive back to the office for a 30-minute to one-hour attendance?
   
5. Institutional costs savings: surely a case can be made for infrastructure and staff savings for government by a continuation of Zoom court.

Look around, major corporations, universities, charitable foundations are all moving to hybrid returns. Try hiring now in the private sector. The first question is either “can I work from home” or “do you have a hybrid model?”

Now that we are going back, are we going to do away with electronic filing? Sure, let’s go back to long lineups in the filing office and 10-inch-thick continuing records. Forget about e-mail, let’s use only fax machines and Canada Post (snail mail). Come on, one of the few bright lights of the pandemic was the brilliantly executed transition of our courts from the 1970s model to a modern efficient Zoom/e-system.

Now before the hate mail flows, I know that we are presently dealing with a hybrid form of return. Only trials, appeals, trial management conferences and settlement conferences are in person. I understand trials. I have done several long trials by Zoom and in person is far better, but I don’t understand appeals, settlement conferences and TMCs. I know that many lawyers support the return of settlement conferences to live events. I do not. I hesitate to single out any one judge, but I will. Justice Richard Bennett of the Ontario Superior Court of Justice has mastered the Zoom settlement conference. In my view, he has evolved a “hybrid” form of judicial/collaborative settlement process that has resolved numerous cases for me during the pandemic. He doesn’t seem to need live attendances to get the job done.

A large part of my practice involves appeals. While a few (perhaps many) of you may have a laugh or two when I try to talk about my “successes” in appeal courts, let me just say that Zoom has not appeared to me to have (a) impaired my ability to present and (b) most certainly, it has not impaired the ability of appeal justices to pummel me with well thought out questions pointing out the weaknesses in my positions.

Perhaps I am over-reacting, but I am concerned. As I have said before, the practice of law has been wonderful to me but now into 44 years of practice, I have changed little or nothing. I have tried but my voice is rarely if ever heard. I will keep trying.

Let’s not go backwards. Please understand, I love going to court. The formality of the court appeals to me. I love robing. I love meeting and chatting with my colleagues at the bar, but I am not convinced that this is the best system to serve our clients. I recognize the benefits of in-person interaction, but we need to be trim, to lean down the system and make it more efficient for the clients. If that means sacrificing some of the things that I love about the system, then so be it. We must remind ourselves of the privilege of practising law and the fact that we are here to serve the public. If parting with some of the traditional trappings of an in-person court is necessary, let’s do it.

Finally, if I misunderstand the direction we are going, my apologies but the issue is important enough for us to continue dialogue. That is the purpose of this latest missive.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP. A certified specialist in family law, he has been reported in over 350 family law decisions at all court levels in Ontario and Alberta. He has also appeared as counsel in the Supreme Court of Canada. He is a past family law instructor of the Ontario Bar Admission course and the winner of the 2021 OBA Award for Excellence in Family Law.

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