JusticeJasmine Akbarali
on the situation in the Superior Court, lawyers, Caselines, and more
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Hello, I'm your host, Pulat Yunusov. This episode is supported by my law practice. Once in a while, I record this show for you. I love it, but my day job is commercial litigation, and I've been doing it for 12 years. I'd like you to know that your referrals are safe with me. You can find my contact information on my website at www.lawco.ca. Thank you very much and enjoy the show.
All right,
hello everyone. This is another special episode of The Yunusov Question, and this is another judicial episode of The Yunusov Question. Today's guest is Honorable Madam Justice Jasmine Akbarali Good morning, Justice Akbarali.
Good morning.
This is a great opportunity for me and for our audience. You are one of the most interesting judges in Toronto, I think probably in Ontario, and I've heard several people express interest in hearing from you. That's why I think— that's why we are having this interview today, because there is interest in the audience. As usual, I want to start with explaining to our audience that you're also a human being, that, you know, judges are people, and please tell us a little bit about where you grew up and how that went.
Sure. Well, before I get started, I need to do the obligatory my comments during this podcast reflect my views. I don't speak for the Superior Court of Justice as a whole. I'm here in my personal judicial capacity, I guess. I grew up in Mississauga. My parents were both immigrants. My dad immigrated from Pakistan. My mother immigrated from Finland. And, you know, we grew up without a lot of family here. Family was all abroad. So it was just the four of us, my parents, my sister, and I. And I guess, you know, a fairly standard suburban upbringing and eventually, you know, went through school and made it to law school, which I kind of had always wanted to do when I was in high school.
Like if you found my high school yearbook, it says that I was going to be a judge. I always knew I wanted a career in the law, wavered a little bit in undergrad, but eventually landed in law school and worked there for a while. I clerked for a year at the Supreme Court of Canada for my articles. And then returned to practice in Toronto. I practiced first corporate commercial litigation, and then I moved into appeals, mostly civil appeals and some pro bono appellate work that also branched out into criminal. And then after about 20 years at the bar, I got my appointment, and I've been sitting on the Superior Court of Justice now for about 5 years.
That's the fastest bio that I heard from any guest. That also at the same time is quite dense. I want to ask you about Justice John Major at the Supreme Court of Canada. You, of course, now have joined the long list of guests of the show who clerked at the Supreme Court of Canada, and you clerked for Justice John Major. What can you tell us about Justice John Major?
So he was so funny. I mean, I'm sure he still is, but it was something I quite enjoyed about him. He had the driest sense of humour, and I remember before I got the position clerking for him, around the time of his appointment, there had been some community groups that had, you know, gone public with their concerns, and somebody said, "Well, he's only been on the Court of Appeal for 11 months, and in that time, he's only written 2 decisions." And it turned out he'd written like 60-some or like some much— anyway. And Justice Major was quoted as saying, "Well, I knew it was more than 2." And that was really his— that sense of humor percolated through everything.
And so I enjoyed working for him because he really— he left a lot of room for us to come in and engage on issues. There was a lot of space that he held for that, and he always treated our comments as if they were valuable. And I remember sitting in his chambers and thinking, you know, here I am, you know, taking him on on some issue. And like, what am I? I'm some smartass kid who just graduated from law school a few months ago, and he's sitting here at the pinnacle of his judicial career. But you know, he always listened and sometimes he would move a little based on some of the concerns. He was very open-minded, but it taught me a lesson really early on, which is that it's important to treat everybody with respect, right?
Because no matter where you are in the profession, no matter how junior or senior, you've always got something to learn. You've always got something to teach.
Right. I heard that when you were appointed in 2016 as the judge of the Superior Court of Justice in Toronto, you were the first South Asian woman appointed to any provincial Superior Court in Canada. Is that correct?
I don't know if that's correct. I was certainly the first South Asian woman appointed in Toronto. There may have been another judge in Ontario, but I'm not sure. That was known to SABA, South Asian Bar Association, at the time. And I can't say for sure about other provinces. I think there may have been provincial court judges or Superior Court level judges in BC, perhaps. But there's certainly been a lot of appointments that followed me, you know, in Toronto and elsewhere.
Yes. And I wonder if you also were the first Finnish woman appointed to the bench. In in Ontario.
That's entirely possible. I can tell you this for sure though, I was the first Finnish-Pakistani woman appointed to the bench anywhere in Canada.
You know, speaking of fun you mentioned Justice John Major and his sense of humor. I found the the Lerners announcement about your appointment. It's a very brief statement on their website published on October 21st, 2016, and they congratulate you, they're very proud of you, and then they describe you by saying, we will miss her legal excellence— that's understood, okay— and fun-loving charm around the office. So what was that about? What is the fun-loving charm? What are they referring to?
Oh well, I guess to really know we'd have to ask them, but You know, with that, I always like to have some fun where I am, you know, within appropriate confines, right? Like, so some of the work we do is very serious, but we— just because we do serious work doesn't mean we have to take ourselves seriously. So you know, an occasional prank, some jokes, like, that's—
I see—
totally appropriate.
I'm curious, so speaking of Lerners, did you get to work with Earl Cherniak at all?
I worked with Earl a lot. Yeah, Earl was great. Earl still is great. He's still a good friend of mine.
I, I can tell you, I personally met him at one of Joe Groia's parties. And of course, Joe Groia has the best food in his parties. I don't know if you ever went. And I was just standing at this Italian appetizer table and, you know, trying to pick one of the many appetizers. And there was this man standing next to me, and he was very sort of quiet and not pretentious, and I didn't really know who he was. And we started chatting, and then we introduced each other, and then he said I'm Earl Cherniak. And then I realized who I was talking to. And I, I remember I told him about my practice.
I was just 3 or 4 years out, and he said— he asked me only one question: do you have paying clients? And I said yes. And then he said, okay, then you're good. Anyway, so one question about your appointment. When you were appointed, Government of Canada issued a press release, and in the press release they said that you were appointed the judge and you replaced Mr. Justice DJ Stinson. —who elected supernumerary status effective May 2nd, 2016. So what does it mean for a new appointee to replace a judge? Do you get his cases? What is going on?
No, no, no, no, no. It's really just a notional position thing. Like, there are so many— the complement is what it is of full-time judges. And under the Judges Act, judges can elect at a certain point in their career to go supernumerary, which basically allows you— I think you go down from 35 sitting weeks to 17 sitting weeks, and but you, you continue to get full salary for that. And then there's another category called full-time supernumerary where you work more than 17 weeks You still get paid full salary and you get to keep your bigger office. You don't have to move to a smaller office. So when you go supernumerary, all you're doing is you're freeing up one of the positions in the full-time complement that has to be filled.
And so one of the reasons that the court likes supernumerary judges is because, A, they help us function, because if we didn't have supernumerary judges, our full-time complement would not be enough. A, our complement today isn't enough, but our full-time complement would not be enough to handle the workload, and B, they have valuable experience, and so what they can offer in terms of, you know, sort of helping along younger members of the bench, newer members of the bench, but also just handling cases, it's all, it's very valuable.
Speaking of handling cases and speaking of the workload, I want to ask you about the situation right now at, at our Superior Court. And let's talk about Toronto. This is where I practice. This is my home court. This is where a lot of other lawyers practice. This is where you work day in and day out. What's going on right now? What is the situation? We all heard about backlogs. What's going on? Please update us about it.
Right, so the pandemic has caused a significant backlog And so some of the things that we have done to try to address it include some of the triage and conferencing that you are going to be seeing more and more of in your cases. Historically, Toronto has had a real motions culture, and what I mean by that is that cases can get motioned to death and So what we are trying to do is to cut out some of the motions that really don't need to proceed. They could be resolved if people would just talk to each other. And so at a conference or through triage, we can do some of that. You know, like if you go looking for a summary judgment motion, in many cases now at CPC, you'll be directed to a conference.
Because we've just had so many summary judgment motions brought that really should be summary trials or, you know, aren't likely to succeed on summary judgment. And so they're not efficient. It's not an efficient use of the court's resources. It's not an efficient use of the parties' resources. And we just don't have the bandwidth to be inefficient. So that's some of the things that we're doing. What we really need is an increase in complement. We don't have enough judges. If you look at the growth of the area that we serve over time, population growth, and then you look at the growth in the bench, they don't match, right? The bench hasn't grown to match the growth in the population.
And at the same time, cases have gotten more complicated, right? You've got all the electronic discovery. People are now, they're their issues, I think, are growing. And here's the thing, like sometimes you'll get a really old school litigator in front of you who's been around a long time and they show up and they brought their one issue. And that rarely happens with most litigators, right? Most of them come and they've got a whole boatload of issues to deal with. And I don't know if it's fear, of getting sued if you don't bring everything, bring every issue you can think of. But the reality is, like, if you're walking into a motion and you've got 6 issues, you probably know that 6 is dead in the water and so is 5, and 4's got, like, very little chance of getting anywhere, and 3 is a little shaky, but you still bring all 6.
Right? I'm not talking about you personally. This is what we're seeing, right? "Lawyers bring all 6, and then we have to deal with all 6." And everybody knew that over half of them weren't going to go anywhere. So it's this performative exercise that we get put through, and, you know, we have to deal with the issues that get raised, but it takes time, right? So people are doing this, they don't have the courage to say, "These are my issues. These are the controlling issues. These are the ones I'm going to bring." And then we could focus on the real stuff. We could have shorter records. We could have shorter reasons. We could have shorter motions.
We don't have that. We have longer everything. And so that's a change that's happened. So in addition to the growth of the population, the growth of the complexity of the cases, the growth of the document production, we've also got this growth of the issues that I think stems from people being too scared to really go with strong issues. And so that's frustrating from my perspective because It's a time suck. It's a time suck. It takes me more time to prepare. It takes me more time to write. It takes me more time to sit through the motion and hear all the issues. And, you know, we're doing this for issues we all know aren't going to go anywhere.
Why don't we just argue at the issues that are actually important, that are actually controlling? So, you know, you get that, and it's one of the reasons why things back up, I think. And then people complain that they can't get dates. Well, Things would move a lot more efficiently in addition to the things that the Administration of Justice can do. And we don't control the complement, right? That's a federal government decision whether or not they increase their complement. So it's not like the private sector where we can say, oh, our workload's pretty big right now, we better go out and hire some more people. So we need help. We need help from the bar to make our jobs more efficient.
And one thing that people could do would be to, you know, have some courage and not bring every issue you can think of, right?
Yes. Do you think that lawyers see judges as service providers rather than partners in the justice system? Do you think that lawyers expect the court to work like a computer program or a black box where you push the button and you get the result and if you don't get the result on time, then you get annoyed. Should they instead be looking at the justice system and at judges and at the courts as partners and stakeholders, just like lawyers, and where every stakeholder has to think about the, the, the justice system, justice system as a whole, as well as their clients' interests?
That's a really interesting question, and actually I'll be thinking about that one later today because I'm not sure that I've given thought in a long time to how lawyers view judges. And as I think back to my own career as a lawyer, I'm not really even sure how I viewed judges back then. The judge was the person I had to convince. The judge was the person who was going to decide. But, you know, the reality is we are all members of the same system, and it's a public service system. Your role as a lawyer is less about public service than my role, right? I've got all of these people, and some of them don't have lawyers.
They come before me, they need help, and I have to make sure as best as I can that the court system is available to everybody, and it's not just dominated by the people who can afford the the fancy lawyers. In the case of a lawyer, though, your primary obligation really is to your client. And so how should lawyers view judges maybe is a better question, or at least one I'm better able to answer. But I think if your end goal is to serve your client's interests, then your end goal manifests through making my life as easy as possible. Right? Like, it's the harder you make it for me, the more likely mistakes are going to get made, more likely things are going to take more time.
You know, there's, there's all kinds of things that lawyers do that are counterproductive, I think, to the goal of serving their clients' interests, and they don't even know it. They don't even know it.
So you mentioned one of the ways that lawyers can make your life easier: be brave about selecting issues to bring before you. You asked how lawyers or I asked how lawyers view judges. I, for example, view judges as question-answers. I ask them questions and I, I want judges to answer those questions. So you're essentially telling us to ask you fewer questions in, in a proceeding. So let's say a motion, ask one question that really matters. What are some of the other ways that we can help judges with the workload and with their job and help the justice system as a whole.
So let me tell you, let me, I'll get there, but let me start by just sort of explaining what my days and weeks look like because I don't think, I think there's a bit of an opacity to that, that a lot of people don't know what we're doing or what are, you know, they see us when we show up in court and they get the reasons, but they don't see what's happening around that time. So we in Toronto, we're assigned to various teams. At the moment, I'm cross-appointed to civil and class proceedings. So I have some weeks that are civil weeks and some weeks that are class proceedings weeks. Generally speaking, we get our schedule, we're confirmed our hearings 2 days in advance, but not even a full 48 hours, right?
Like usually comes in late afternoon on a Tuesday for Thursday. If it's a long hearing, court staff does try to give us a heads up the week before and access to Caselines, but a lot of the times it's not helpful because Caselines hasn't been populated yet, or it hasn't been fully populated, or it's been poorly populated. And I'll get to Caselines in a minute because I have a lot to say about Caselines. But the reality is that we don't have a lot of lead time to prepare, right? So that's one of the reasons why focus is so important because the more I have to prepare, the less time I have for each file, right?
Like it's, if I've got 3 hours of prep time available to me that day and I've got several files that I need to prepare for and each one of them is taking more time because they're not focused materials, then I either am making time out of what, taking it out of my sleep. And nobody likes, I can tell you nobody wants unslept me in the courtroom the next day. Or it means that my preparation for each motion isn't as thorough as I would like it to be. So it's not ideal. And so we get the materials and then we've got hearings the next day. So it's not like I've got the whole day to prepare.
I've got those hearings and I'm trying to do some reasons as I go along, right? I'm trying to get endorsements on the simpler things out as quickly as possible. So a few weeks ago, just to give you an example, and this is a particularly bad week because for a number of endorsements, 'cause I sat in, CPC twice that week, but in one week I released 31 endorsements and I took 2 reserves. So that's at the high end, but it's not unusual. It's not unusual. So we've got this constant process of things going, and that's just our hearings, right? In addition to that, we are speaking at things that we're preparing for, we're case managing files, which we tend to do around the regular day.
So I'm having conferences at 8:30, I'm having conferences at 4:30, I'm having conferences at 1:00. So there's always something happening, right? It's like, oh, the image we often invoke to each other is that, you know, that old scene from I Love Lucy and the Chocolate Factory with chocolates just keep coming. That's what the work is like. It just keeps coming. There's always something else. And with the backlog, if something goes down, there's something to pick it up, right? Like there's something to fill in often if we have enough notice that something's gone down. So last-minute things going down is also a problem for us because you put time into preparing something, you show up at the hearing and someone says, "Oh, my friend just delivered a new factum this morning and we've agreed that, you know, I need some time to respond to it, and so can we adjourn this?"
And this happens more than you would think, even though there are timetables in place and And so, you know, and sometimes it's out of people's control, I get it, but sometimes it's not. Sometimes it's just somebody hasn't focused on what they needed to do early enough and then the whole day goes down, right? Now I can use that time because I've got reserves to write and whatever else and prep to do, so I make use of it when it happens. But, you know, it's also part of the reasons why your dates are so far off is because now that person took up a day in the calendar. I spent time preparing, which is wasted time now because you know, even if it gets assigned to me when it comes back, I'm not going to remember.
I'm going to have to look at it all again. You know, we do too much in a week to remember things. If your case is very clearly emblazoned in my mind, that is a sign that something is wrong. There's a bad aspect to your case if it's emblazoned in my mind, right? So that's an issue, the last-minute adjournments. And just the little prep time that we have and the overarching workload, which is like, I'm working way harder now than I did in practice, hands down, way harder. You know, it is not unusual to find me at 10:30 on a Saturday night working. So, and I'm not complaining about the workload. It's a job that I'm privileged to have, but It has to— there are so many things we could do to make it better and make it more efficient, and that's, I guess, where I would look to the Bar for some more help.
And a lot of that at the moment has to do with Caselines. Because of the pandemic and this movement online, another thing that that's meant for judges who are doing virtual hearings is that we don't have the staffing complement that we would have if we were in court, or at least not the staffing complement to do the things that they would normally do for us, right? So if I was doing CPC in person, I would have a stack of endorsements, I would handwrite them as I went along, and then I would hand them off to the Registrar and I wouldn't think about it again. And so now what happens is that I pull up the form and that CPC form, it often gets populated in— I don't know what the error is, there's a technical error.
And so when I go in to do my endorsement on the CPC form. All throughout the form, it's like where it should say court file number, the court file name, it says error reference source not found or something like that. So I end up going through and deleting error reference source not found everywhere and typing in the court file number and doing the endorsement. And I can't finish them at the same time because I have too many people waiting. And so I sort of either take some notes and I go back to finish them after, or I try to draft the endorsement, but I don't deal with signing it, saving it, and all that stuff because that takes too much time.
And then it takes me a good hour, hour and a half after CPC Court to go through all those endorsements because what I have to do then is save them, correct them— well, correct them, then save them— and then convert them into PDF, sign them, save them again, and then send them off to somebody to release them. So, you know, these things, they're not individually difficult, But they take time, and when you've got a whole bunch, when you're doing 31 endorsements in a week, I'm spending a lot of time converting into PDF. So that's an admin burden that's fallen on us now through the virtual proceedings that we never had before. And there's more, right?
Like, there's— I try to prep my files as soon as I get them because there's often things that are wrong in the file from Caselines, and so I've taken to sending out emails saying, fix this. But it's problematic. I think, and I think one of the big problems is that lawyers aren't using Caselines themselves, or many aren't. Many are doing their documents, getting a hard copy for themselves, and telling their staff to upload it to Caselines and never checking. So really, how can, how can lawyers help us? Here's the number one thing you can do to help us: use Caselines yourself. Because if you use Caselines yourself, you're not going to give me files that are not— that are dysfunctional on case lines, right?
And that's what I'm getting now. I'm getting a lot of dysfunctional files. Sometimes when people upload their factums, they get disaggregated. They don't know. And so overview is one document, facts are one document, issues are one document, and on and on. And that's not an efficient way of going through it. People often separate their exhibits from the affidavits because they think that's going to make them easier to find. But then you end up with plaintiff has 106 documents in their case lines folder and defendant has 96. And, you know, I'm trying to find things and it's unruly. I can't find the documents. And people don't come with the case lines number. Sometimes they come with the PDF numbers if I'm lucky.
And oftentimes they're just sitting there with their hard copy and they hand up they've uploaded, I should say, a motion record, and it hasn't— either the bookmarks have been scrubbed or the hyperlinks have been scrubbed or it hasn't been hyperlinked. And I've got a PDF in front of me that's 5,000 pages long, and someone says, could you please turn to tab 4NN? Well, I don't have tab 4NN on CaseLines, right? And I say, what's the CaseLines number? Well, nobody knows. So we got to go searching. And then And talk about wasting time. That's another time waster. Plus it's giving me tendonitis scrolling, scrolling, scrolling, scrolling. So the use of caselines is really problematic, and lawyers would know that if they were using caselines.
They would get as frustrated as I get. But they're not using caselines, they're using their briefs. So that's a huge, huge issue. Not knowing how to function with it and and not knowing how to navigate it. And even lawyers who know how to navigate it, here's the thing nobody does, or at least hardly anybody does, is you've got a motion record with a whack of tabs in it and you tell me to go to tab 2M. Well, I can do that because you've got it hyperlinked in your index, so I can go to tab 2M. And now you want me to go to tab 6F. Well, I can't just go back to— I have to scroll roll up all the way to the index to get the hyperlink to tab 6F.
So every tab should have a hyperlink back to the index. So I'm just clicking to get back and clicking, it's 2 clicks, as opposed to this thing that takes a lot of time, right? These are the things people would see if they used it themselves, but they don't. So I lose all this time. So I've started now emailing counsel and saying, you've got to do these things to fix your caseline materials. But if I've already reviewed it, I've made notes on Right? And so what am I doing? Am I like— so if I notice it's bad at the beginning, I'll tell people to fix it before I review it, and then I'll make my notes on the reviewed copy.
But I've had it where I've— here's another thing people do: they, they find a mistake and they decide to go correct it without telling me. So I reviewed a document, I've made my notes in it, and somebody removes it from Caselines and puts up a new copy of the same document. Well, goodbye all of my notes, they're gone.
Wow.
So these are— you see what I'm saying? I got a lot to say. Yes. These are some of the things that are really problematic that are making the process very inefficient. And used properly in those rare hearings where people have it down pat, it's great. It's a really powerful tool. But it's the, it's the exception, not the rule. And I still have people coming before me saying, this is my first time using CaseLines.
You know, I I always use the presentation mode. How many lawyers do you in your experience use the presentation mode? Because in the presentation mode, you don't even have to touch your computer. I just change— I just scroll the document myself on your screen, right? What do you think about the presentation mode?
I have never had a single person use presentation mode. I've had people use Direct To. Which isn't bad, but the problem with DirectTo is that it really likes you to be at the top of the page. And so you scroll down and it bumps you back up to the top of the page, and I'm like, but I want to look at what's on the bottom of a page, or I want to look at the next page, and I can't because it keeps bumping me up. So that's an issue with DirectTo. I'm good at finding the page numbers myself, but another thing that happens is that sometimes people use the master and sometimes people use the current.
And so you I need to know which set of page numbers you're using in order to find it. But that becomes an issue is that someone says, oh, it's at page B-1-167, and I go to B-1-167 and it's not what they're talking about at all. And it's because there's a difference between the current and the master. And then people clutter, they upload all their affidavits of service. I do not need to see them if no one is taking an issue on service. And if it is not ex parte, I don't need your affidavit of service. I really don't. So, and that just like clutters things up. And, and nobody brings cost outlines. That's another one of my beefs.
Yeah, so we'll talk about the cost outline in a second. I just want to finish with case lines. Would you prefer a lawyer— that lawyers use the presentation mode where you don't have to touch anything, they just scroll the document on your screen? Have you seen it in action?
I haven't, but I've heard from people that it's really great. So I would be very open to that.
So we should tell lawyers now that they should try presentation mode then, because in my experience, it's great. You don't have to touch your computer at all as a judge. You just watch a movie basically on your screen, and the other side of the opposing party has the same movie on their screen, right?
Yeah. Okay, so one of the great things about it, right, is that everybody, especially if you're cross-examining a witness, right, everybody knows what everyone's looking at, whereas before in the courtroom You know, you could show a document to the witness and the witness might say like, oh, it's this number over here. And then we all have to figure out what that means. Right. Whereas when we're all looking at the same document at the same time, we see what's in front of the witness. It's easier to know what the witness is talking about.
So tell us about the cost outline. You started talking about that.
Right. So costs. Cost decisions are another really inefficient way of using judicial resources. If I do costs, and everybody wants to do written cost submissions for some reason, and occasionally there's a need for it, right? And I'm not saying that there's never any, like trials, you need written cost submissions later, and some complex motions where, you know, there might be divided success, there might be reasons for cost submissions later, or SLAPP motions. Anti-SLAPP motions. But almost always, like I would say probably 90% of the things I hear, do not need written cost submissions. So what the rules require you to come with the costs outlined to a motion, right? And so few people do this and everyone says, oh, I haven't done it yet and I'll just— can I just send it to you later with written submissions?
Well, you know, you were— you didn't get your act together to do what you are required to do under the rules. And your answer is, let's give the judge more work. Because if I'm timetabling written cost submissions, by the time they're all in, you know, because you can't do them on the— you need— somebody needs a week to respond because they're going into discoveries or something else. By the time it comes back to me, I have to refresh my memory about the entire motion, which takes time, and then I have to write the cost outline. Which has to have some background about what it was all about, which I've already written in my main reasons.
So if I do costs at the same time, I've got a few paragraphs at the end that set out the basic principles, and we all know what they are, right? We all know Zesta. We all, you know, we all know Davies v. Clarington. We all know that things have to be fair and reasonable and reasonable expectations and all that. We know that it happens with offers that are beaten and offers that aren't. And, you know, We know the factors under Rule 57. None of this is earth-shattering. This is all very fact-based discretionary determinations. And it's very easy for me to do that at the end of a set of reasons, and it's much more time-consuming for me to do it later.
So if I have to do it later because there's a reason, that's fine. But I don't want to do it later and, you know, take twice as long to do it or more because lawyers didn't do what the rules require them to do. So I will often just tell people to upload their cost outlines, especially if I figure it out in advance, I'll tell them to upload them by the day of the motion. And most people are quite content with just relying on the cost outline. And then when I'm done, after everything, I look at the cost outline and if there are offers that are relevant, I tell them to upload them I clearly mark them so I don't read them before I've reached a determination on the merits.
And then I do costs. I do them in the main reasons. And, you know, people don't— your clients don't need you to pay for cost submissions that say, here are the cost principles. Like, I know that. I know what they are. So that's— if people could get their act together on costs. And the other thing is, if you go to the Court of Appeal, they all come with an agreement on costs. Like, how hard is it to call your friend up and say, on this, you know, winner-takes-all motion, what do we think costs are? And just give me the agreement. We agree that costs are X, right? If people would communicate with each other a bit more, there would be less that they would just dump in, in our laps to decide.
Because these things would be amenable to resolution between counsel. Like, we should be here for the things that are not amenable to resolution between counsel. The things that are amenable to resolution between counsel should be dealt with at that level, right? That's a more efficient use of your client's resources, and it's a more efficient use of judicial resources.
I have a question about court file. Remember when court file used to have two functions? One of them was the record of proceedings, a snapshot of what was exchanged and what was decided, and this function the court file still has. But the second function of court file was the storage of records for hearings. This function is now performed by CaseLines.
Well, we still have an electronic court file which is not CaseLines, right? That's right. So it has to be filed through the portal.
Exactly. So that— I, I want to talk about that electronic court file from your perspective. So in the old times, in the old times before summer 2020, we filed materials on the 10th floor, and then they brought the materials physically to you, to the courtroom or to your chambers. Now we file them electronically, but they— what we file electronically through the portal doesn't go to you. You don't care about that anymore. You care about CaseLines. Correct me if I'm wrong.
No, that's right, because we don't get the electronic file. Okay, CaseLines. So I, I've had people assume that I have things that they never uploaded to CaseLines, and I don't. If it's not on CaseLines, I don't have it.
So it's really interesting, the court file now is purely a record of proceedings for posterity, you know. Or something like that. One of the biggest complaints from lawyers is the extremely high rate of rejection of materials by the filing office. Is this within your area of interest or expertise? Do you want to talk about that, or is it purely an administrative matter that you don't really concern yourself with?
That all happens before I get involved in the process. So it's, you know, I've heard the complaints and I think, you know, probably there's some discussion happening about how to address it, but court staff generally are employed by the Ministry of the Attorney General. And so there's kind of hard lines around what judges like where our responsibility starts and ends. So that's an issue that I've heard, you know, from more than just you. I've heard that from other lawyers, but it is, I think, something that I understand is being looked at. But in terms of specifics, I don't, I don't know.
Okay, okay. Then just to go back to the motion culture and to how the court is attacking the motion culture. Another issue that lawyers complain about is huge delays in getting associate judge dates. And I— you're, you're not an associate judge, but I thought I'd ask you, so is, is this deliberate in part to attack the motion culture, or is it purely because of the backlogs and because of the under-resourced situation?
So I'm not in their scheduling office, but from what I understand, the associate judges are working incredibly hard and they've got a massive backlog. So if people want to have fewer delays or earlier dates available for associate judges, a lot of the motions before associate judges are amenable to resolution. Right? So I sometimes get— because I do do some discovery motions in the class proceedings files that I manage, and sometimes when I conference motions that are coming up, you know, and people, they want the ability to go and bring a motion on refusals before the motion gets heard, and then we're timetabling steps. But if I have to timetable in a refusals motion before an associate judge, it's going to move your end date for the motion off significantly.
So what I sometimes suggest, if people are willing, is that people answer the refusals with the caveat that they do it on a without prejudice basis, that they can still object to the admissibility of the evidence. Now, that doesn't work with privilege, and it doesn't work if you think the request is disproportionate, and so you don't want to put your client to the work and the expense of answering it. But for refusals that can be answered with that reserve of rights, it's a much more efficient way of moving forward. So there are ways you can do it. Like, another favorite thing for lawyers to do is to bring motions to strike at the outset of a motion.
And they're rarely necessary, right? Like, oftentimes people want to strike some small little thing in an affidavit. And honestly, all you would have to do is draw my attention to it in submissions. And, you know, like, this isn't— this is legal arguments, for example, in an affidavit, and it's not proper. Well, maybe it is. I can just disregard it, right? We don't actually need to have a whole motion around it. So that kind of practicality isn't always there. People can get very invested in making sure that every I dotted and every T crossed is consistent with the Rules of Civil Procedure. And I mean, that puts the cart before the horse, right? Or that's the tail wagging the dog.
The Civil Procedure Rules are there to help us get to a fair and just hearing on the merits. They're not there as some kind of, you know, checklist of things that you have to get through in order to have the right, to earn the right to a fair and just hearing on the merits. And so sometimes people get so wrapped up in minor technical breaches of the rules that they lose sight of the forest for the trees. And then, you know, we've got 2.5 hours booked for your motion and you want to argue about striking the affidavit for an hour. Well, you know, that's not a good use of time, right? We should be focusing on the issues.
Draw my attention to it. I can address it if it's a problem, right? I mean, there are always exceptions, but there's so much that falls in the range of easy practical solutions that people don't adopt because they aren't technically consistent with the rules. And, you know, that's, that's just the wrong focus, I think.
Yeah, this goes back to your point that lawyers are paranoid, and I want to contrast Commercial List with Civil List. So I think on Civil List, lawyers are obsessed with procedure, and on Commercial List, they don't care about procedure. So maybe Civil List lawyers should learn a little bit from Commercial List lawyers, although not caring about procedures can have its own harms. But on Civil List, I think we definitely shouldn't bring motions to strike paragraphs of affidavits that are not admissible. Just say it in your factum, as you said, things like that. So I want to ask you about the effect of Zoom on hearings. At some point, all hearings were on Zoom, or most of them were on Zoom. In your experience, what the effect has been— better, worse, any material differences, anything that you want to flag for the Bar?
Yeah, I mean, I think Zoom has been really useful, and I think especially on, like, civil motions, for example, it's very, very easy to have an effective civil motion on Zoom. There was a really interesting article in the Advocate's Journal recently written by a couple of women about the experiences of racialized women on Zoom, which I thought was really interesting how there's an equalizing aspect to Zoom when we all have the same size box. So, you know, there's a lot of pluses to it. From the perspective of the bench, it's like with civil and class proceedings now, I am doing everything virtually. I literally have not set foot in a courtroom since March of 2020.
And there are— I mean, there's a lot of good that's come out of that. We were able to keep the justice system functioning as a result of Zoom. But one downside is Zoom fatigue, right? So, and if you're doing a long trial, you'll get a taste of it. But lawyers will be, you know, you'll have some hearings, but you'll you won't be every day of your working day on hearings. And I basically am, right? So it does get tiring. We need breaks. We need to take breaks as regularly as we can. And, you know, so that's a thing. It's another reason to be more focused, right, is to try to stave off Zoom fatigue, which is a real thing.
Some of my colleagues have talked about digital seasickness. I thankfully have not experienced that, but that can be an issue for some people.
So I think you told me earlier that you can tell— not in this interview, but but prior— you said that you could tell if a lawyer is good or bad regardless of whether it's Zoom or in person.
Sure.
So are there some hallmark marks that you use, what are they?
Well, it's the same, right? It's the same preparation. It's knowledge of the case. It's the theory you put forward. It's your command of the record, right? So in person, your preparation included knowing where the documents were that you were going to direct me to. That's no different. You just need to know where to direct me to them on CaseLines now, right? It's the same The same things that make a lawyer effective in a courtroom, you know, adapted to Zoom, make a lawyer effective. You don't just become a bad lawyer because you're not used to Zoom. The one thing that can be problematic is that you may be a very good lawyer, but you're not used to caselines, and so it gets frustrating because we're, you know, having trouble finding things.
But assuming that you have— I mean, most, most people who are that good have already taken the time to figure out case lines before they show up to argue their motion, right? They've done trial run-through, they've figured out how to navigate it. So I don't think it's actually significantly different.
Is it true that case lines is on the way out? Are we going to have a unified filing and hearing software. Is there any word on that or it's too early to say?
I, yeah, I'm not privy to those discussions. I gather there's some hope for an end-to-end solution, but I don't know whether that would involve Caselines or not involve Caselines. All I can say at this point is that there's been a lot invested in Caselines and it's around for the foreseeable future. And so anybody who's like holding off learning Caselines because they think it's all going to change soon and they'll wait for the next one, I mean, look, when we moved into 393 University, it was supposed to be for a few years, and we moved out, what, like 20-some years later? So that's, that's a bet I wouldn't take. And in the meantime, you need to be functional with caselines to, to have your motions heard properly or your hearings heard properly.
So, correct.
You talked about the workload, you talked about the pressure. You as a judge, of course, are exposed to things that most lawyers probably are not exposed to, not just because you're in Zoom all the time, but also because you're exposed to traumatic facts, for example, or traumatic cases. Some lawyers' practices are dedicated to such cases, but most lawyers' practices aren't. How do you deal with trauma in your work? How do you deal with— do you have— I don't know, does the court have a psychologist on staff? How does the government support you?
Yeah, so there is, I think trauma and PTSD in judging is probably fairly well recognized, and I think probably that started after the Bernardo trials, right, and the jurors were offered some support, and now we have a service for jurors who want somebody to talk to after the end of a trial. We have, like many organizations have, an EAP that offers counseling services. We have an EAP for judges. It is— it's— I think we need to understand better trauma in the process as part of better dealing with the trauma from the process. And that trauma isn't just limited to judges, right? It can be the participants, parties, witnesses, jurors, court staff, lawyers. And so there's a movement, I think, towards trauma-informed judging, which I think is very positive.
And lawyers can help us with that. You know, you hear a lot of stories about people who feel re-victimized going through the justice system, and I'm not just talking about complainants in sexual assault cases in criminal court. You know, there's a lot of people in family disputes who, you know, have evidence to give about abuse of all kinds, and even in civil cases, people are traumatized in different ways. You know, and there's some— not every civil case is a, you know, a staid breach contract between two multinationals, right? We've got a lot of— there's a lot of emotion that goes along with the wrongful dismissals, a lot of emotion that goes on along with a personal injury case, right?
And so there's a lot that can impact people in the system. So, and sometimes it's not even from the case itself, there's something in the case that evokes past trauma for somebody that I wouldn't necessarily know about as a judge. So, if lawyers can help by canvassing with their clients and their witnesses whether there's any, you know, anything that could help make things easier for them, then that can be raised with the judge at a conference or pre-trial conference or something, or even at the outset of trial or hearing. So that we can put in place measures in the course of the hearing to minimize the trauma that people are likely to suffer personally or the vicarious trauma that's likely or that's possible to come out of somebody's evidence, for example.
So I think trauma-informed judging is really important, but we can't— we won't know necessarily what's coming down the pipe that's going to be traumatic if if we don't get the heads up. And then maybe some ideas from counsel about what would work with that particular person in terms of minimizing their experience of the trauma.
Your Honor, thousands of lawyers in this province need information that you provided today. I want to thank you for your time. This was an extremely valuable discussion. I look forward to sharing it with Ontario lawyers, and I want to wish you all the best in lightening the load and lightening the backlog, in your personal mental health and in your personal health. All the best to you. We should protect our judges at all costs. Thank you so much.
One person on Caselines instead of on their books, it's been a worthwhile hour.
Thank you. Thank you.