Canadian Lawyer

June 2020

The most widely read magazine for Canadian lawyers

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www.canadianlawyermag.com 9 FCA hears first appeal remotely As courts across the country have struggled to continue operating with COVID-19 and the physical distancing required, Canadian Lawyer has surveyed chief justices of courts across Canada on how they are managing the crisis. Here, Chief Justice of the Federal Court of Appeal Marc Noël answered Canadian Lawyer's questions on May 5 about COVID-19's impact on his court. What are some of the adjustments you've made since COVID-19 was declared a pandemic? It was a long adjustment; initially, we suspended all delays running under the federal court rules and under the directions and outstanding orders of the court, in order to allow for the parties and the registry time to manage resources. On April 16, we realized that [the COVID-19 pandemic] might last a little longer, and so we reverted to the practice of virtual hearings, either by telephone or by videoconference. We allowed for certain proceedings to be determined on consent in writing and also at the direction of the court in writing. That option is one that we use in the Federal Court of Appeal on a regular basis, because we are a travelling court. We sit across the country, which poses additional challenges in terms of when this [pandemic disruption] will end for us. But [as a] travelling court, we use written disposition of motions extensively, so our clients are used to seeing us deal with many issues in writing. So [virtual hearings] were well received. We also use telephone conferences quite a bit on motions, so that's not unusual. Our first appeal by videoconference was heard this morning [May 5]. We're going to be hearing about 25 appeals between now and the beginning of June [with] additional cases in line for the period of June until July. Another adaption is temporarily allowing for e-filing, via email. With limited on-site staff, this allows parties to file motions and materials electronically. Counsel are very conscious of the fact that this is novel, so they're very organized and precise in their presentations [and] used their time well. It certainly is a satisfactory way of hearing appeals. [Going forward], we have many jurisdictions which are concurrent jurisdictions, and so we have to be mindful of the fact that if we become the court people think they appear before through videoconferencing, in circumstances where they have the ability to go to the superior courts and appear in person, we would lose credibility and clientele. So, we have to be present across the country as a travelling court, but nevertheless this experience is teaching us that it can be done [remotely]. There is a danger that this period of difficulty will last, and what concerns me a lot is [seeing] my court be immobilized. I'm happy to see that, notwithstanding the challenges, we're able to operate if not normally in a way that will allow us to do the job we have to do. Health-care equipment suppliers face more scrutiny Businesses retooling their operations to manufacture health-care supplies may be subject to greater scrutiny in future foreign investment and face limitations in potential buyers in future acquisitions, especially if those buyers are from China, say lawyers. As the COVID-19 pandemic leads to a fall in valuations for Canadian business, the government is concerned about opportunistic investment and the impact it could have on its ability to respond to future crises. Delaying elections prevents First Nations 'governance gap' Lawyers representing First Nations governments said temporary regulations passed to allow First Nations to postpone and cancel elections during the COVID-19 pandemic without experiencing a "governance gap" were necessary and have been positive. The federal government advised First Nations with an election slated during the pandemic not to proceed unless social distancing could be observed. But the legislation does not allow for an extension of a term of office in the event of an emergency. IBA urges release of some Indigenous inmates The Indigenous Bar Association in Canada has called upon justice ministers and attorneys general to take steps to protect Indigenous inmates from COVID-19. The IBA urged the rights of incarcerated individuals be respected under the Charter of Rights and Freedoms and United Nations agreements by releasing Indigenous inmates identified as low-risk or non-violent, who are pregnant, over 50 years old or suffering from pre-existing medical and chronic health conditions. Q&A Marc Noël Chief Justice FEDERAL COURT OF APPEAL Fast fact: Appointed to current position Oct. 9, 2014. Joined the court in 1998, appointed by Prime Minister Jean Chrétien. Previously a justice of the Federal Court; former tax lawyer.

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