Return to in-person hearings makes no sense, Colman says

COVID-19, Family Law /
Gene C. Colman
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By Paul Russell, LegalMatters Staff • With COVID-19 remaining a continuing threat, Ontario courts are moving in the wrong direction by mandating a return to in-person court proceedings, says Toronto family lawyer Gene C. Colman.

He notes that a message from Ontario Court of Justice Chief Justice Lise Maisonneuve on March 18 states, “Effective April 4, there will be increased access to in-person proceedings. While the Court can now accommodate more in-person proceedings, it is also committed to continuing the use of video and phone options for some hearings.”

For Superior Court of Justice (SCJ) directions, click here. And for further family law SCJ directions, see here.

“While the courts are for the moment preserving some virtual appearances, the trend is in the wrong direction”, says Colman, principal of the Gene C. Colman Family Law Centre.

“The presumption should have been that court appearances will be done virtually unless the parties and their lawyers want an in-person hearing. Our judicial system cannot ignore legitimate public health concerns. Nor can it overlook the substantial savings to the public that virtual hearings bring. Health and savings. It’s really that simple.”

To illustrate the value of virtual hearings, he gives the example of how case conferences were held before March 2020 when the virus led to the suspension of in court attendances across Ontario.

“Pre-COVID, if a lawyer had a 10 a.m. case conference at a centre some distance from their home base, they had to travel there in person. There could be three or more other conferences booked for the same time slot,” says Colman. “Chances were they would be there for half the day, or longer, to take part in a conference that might last 20 or 30 minutes. Who pays for that unproductive time?”

20 motions for a single time slot

“The situation was even worse in some more crowded centres,” he tells LegalMattersCanada.ca. “I’ve been at courts when there were 20 or so motions on a single judge’s list for a single time slot. Is that an efficient use of resources?”

By connecting virtually, Colman says a lawyer can be fully productive, working on other files your case is reached.

“While none of us like COVID, it forced the courts to embrace technology and efficiency. That benefited everyone, especially clients, who saved significant money,” he says.

With in-person hearings, Colman explains lawyers will go back to billing for their travel time plus the time they lose waiting around for their case to be called.

“Even if that billing is at a reduced rate, it still costs the clients. And that is just plain unfair,” he says. “And now we’re going to throw those savings away by returning to in-person sessions? That just doesn’t make sense.”

Judge explains why she doesn’t like Zoom

During a recent Zoom webinar, Colman says one “esteemed judge” explained why she prefers in-person case conferences.

“She said she is unable to get a good sense of people’s emotions when she uses Zoom,” he says. “She told us it is helpful to her to see people in real life, so she can read their body language.”

Colman says a simple technology lesson may be all that is required in this situation.

“To help her read body language and facial expressions, the judge should reset her Zoom setting so that the person speaking is full screen,” he says. “If she constantly has multiple small images on her screen, she is sure to miss the subtleties and facial expressions.”

Technology solutions

Instead of mandating in-person hearings, Colman says the courts should immediately equip courtrooms with technology that will allow virtual or hybrid hearings. He explains that with a hybrid hearing, some participants attend in person while others appear on screen.

“With technological improvements, you can easily schedule hearings without concern for the actual mode of attendance,” he says. “That would remove the objection that it’s just too difficult to schedule virtual, hybrid, and in person hearings on the same list.”

Colman is passionate as he pleads for a modicum of common sense.

“Here is another approach. At the moment, virtual hearings involve a judge and a Courts Services Officer on their computers,” he says.

“We don’t know if they are sitting in the court or sitting at home. It makes no difference. Let them bring their very same computers to court (if they aren’t already there). Let the courts administration schedule the cases as they do now. If the parties and their lawyers choose to come in person, great? If they prefer to attend remotely, great!

“Surely we can find longer term solutions as well,” Colman says. “Let us equip all courtrooms with technology to allow virtual and hybrid hearings. That would be a great investment that will enhance access to justice.”

“After all, the job of judges, lawyers and court staff is to serve the public through a properly functioning justice system. And in an ideal legal system, the cost of hiring a lawyer should be reasonable. Virtual hearings allow us to keep our costs down, so everyone benefits,” he adds.

Document filing system must change

He notes that there are currently three ways people can file documents with the court. The first is by using a designated email address, the second is through a court portal and the third is by utilizing CaseLines, a cloud-based document sharing and storage e-hearing platform.

“With CaseLines, you still have to earlier file your documents through the portal or at a designated email address,” says Colman.

Colman does not like CaseLines. He remonstrates: “Use of CaseLines in many jurisdictions is mandatory. The major fault with it is that it strips out bookmarks and hyperlinks when you file there. CaseLines says that they have no immediate plans to remedy this state of affairs, but that there is a way to hyperlink the documents once uploaded, which creates double work for lawyers and their assistants. And for added insult to injury, you can forget about bookmarks; CaseLines does not even allow you to add those after you file.”

“Lawyers or their law clerks spend hours putting hyperlinks and bookmarks into documents, which CaseLines then removes,” says Colman. “Why can’t the techies that the province employs even try to fix this issue?”

Instead of improving CaseLines, Colman advocates for a comprehensive overhaul to document filing. He recommends there should be a single province wide website that encompasses all courts and allows people to click on their court, region, type of case, etc. After selecting the appropriate parameters, users could then upload relevant documents – with bookmarks, hyperlinks and all.

But what if a document should not have been filed, Colman was asked.

“Leave that up to the judge to decide,” he retorts.

And what if someone is not technologically adept? “Let them file in person or make resources such as duty counsel available to assist,” he adds.

“I’m calling on all court administrators, senior justices, and bench and bar committees to put their heads together and insist that the province hire knowledgeable people to set up this system,” says Colman.

“Then we would have a functioning filing system that works, whether your case is virtual or in person.”

‘Everyone is sick of wearing masks’

Referencing the in-person hearings that the courts are now mandating. Colman says he believes the idea of returning to in-person hearings is a political decision that ignores the rise of the sixth wave of COVID.

“Everyone is sick of wearing masks and taking precautions, but we have to have a legal system where everyone feels safe,” he says. “If people are unsure about attending an in-person hearing, they should be given an option to attend virtually.”

As an almost 72-year-old veteran lawyer, Colman says that he is personally afraid for his health to set foot in a public courthouse. And one of his team is in the midst of a high-risk pregnancy.

“She certainly does not want to go out in public now either,” he says. “This misguided return to mandating in person attendances is frankly discriminatory against old guys like me and other health-compromised lawyers and paralegals. It’s as if they have thrown compassion and common sense to the wind.

“Everyone wants COVID to be over,” he continues. “But directions from chief justices and the government will not abolish COVID, as much as we all would like that to happen.”

Even if COVID “magically disappears” in the future, Colman says Ontario’s court system should not abandon the technological progress it has made over the last two-plus years. Rather, he maintains that we need to build further on the substantial efficiency and access to justice gains that we have achieved thus far.

“We’ll be at the mercy of the worst elements of society if we allow our justice system to break down, he says. And with a wry smile and a bit of a chuckle, Colman who is an Orthodox Jew, concludes: “The Torah (bible) tells us that God instructed Moses to set up a credible, functional judicial system and a police service. We need to ensure that they continue to function with maximum efficiency for the benefit of our entire society.”