Below is a transcript of my interview with Justice Fred Myers of the Superior Court of Justice of Ontario. I recorded the interview on December 10, 2021. Important notices: no legal advice; no warranties; please see the end of the transcript for Justice Myers’s disclaimer.
PY:
Hello, everyone. Today is a very special episode of The Yunusov Question. I have here with me, Justice Myers of Ontario Superior Court of Justice. Hello, Justice Myers.
JFM:
Good morning. Thanks for having me.
PY:
It’s a great pleasure to have you. I am very thankful to you for doing this. A lot of people are looking forward to this interview as far as I have heard. I just want to start by introducing you to the audience. Our audience consists of probably exclusively lawyers, maybe law professors. So people from this profession, people from this industry. But also a lot of young lawyers, a lot of junior lawyers. Please tell us about your origin story. Where are you originally from? Toronto or Montreal or another part of Canada?
JFM:
I am born and bred in Toronto. I’ve lived here my whole life except for school. So it’s a little dull in that way.
PY:
Well, what neighborhood in Toronto was it?
JFM:
I was brought up in Forest Hill.
PY:
Forest Hill.
JFM:
My parents moved into my house two months before I was born, and they left well after I did.
PY:
It is a little dull. But it is what it is. No, but I love Toronto. I’m a huge fan of Toronto. I live here. I wasn’t born here, I’ve lived here for more than 20 years. And I always am curious about where people grew up in Toronto and what the connection is to this city. So you went to a university in Toronto as well for your undergrad?
JFM:
I did a year and a half at U of T before I realized that I was not going into med school. And then I went back to York, and took math at York, figuring that there was nobody any good at math who went to York. So I could get some marks and go to law school.
PY:
Wow, I didn’t know that you had math training. I think that explains a little bit your style in your judgments. But we can get to that a little bit later. So with your math degree from-
JFM:
No degree.
PY:
Sorry?
JFM:
No, there’s no math degree.
PY:
There’s no math-
JFM:
I got into law school without a degree.
PY:
So that was at the time when you didn’t need to get an undergraduate degree, right?
JFM:
Right.
PY:
So, easier times. And then you went to Osgoode just like me. I also went to Osgoode. And after Osgoode, you decided to go to Harvard for your masters.
JFM:
Yeah. I clerked and discovered that the school had an interest in promoting its grads. And I really hadn’t thought about an LLM degree, but then I was taught by other clerks that there was money available to help. And I wrote to the dean, who I didn’t even know, at Osgoode and got this glowing reference letter, which made me understand the institutional issues perhaps at play. So it was a fabulous year at Harvard. And that’s, I’ll tell you, by far the credential that sticks out and stays with you more than any other.
PY:
More than the judge of the Superior Court?
JFM:
People are always interested to know about Harvard. And that, “Oh, you went to Harvard.” And it’s different than some of the other things I’ve done. It’s always been the Harvard that people mention. It’s funny because the grad degree there is not the most challenging academic degree. It was a bit more of an opportunity to canvas a whole bunch of different courses. So it was great.
PY:
Have you ever considered being an academic or that never crossed your mind?
JFM:
No, it absolutely crossed my mind. I thought about it very seriously. I actually interviewed at Western for a job as a prof. And then my favorite professor at law school, whose name is Peter Hogg, suggested to me that I practice for three years. He said, “If you practice a little, you’ll get some practical knowledge behind you and you’ll never regret the road untraveled.” And the difficulty is I loved it of course, so I never went back. So thank you, Peter.
PY:
Yes. Where did you clerk? What court?
JFM:
I clerked at the Supreme Court of Canada for Chief Justice Bora Laskin. And on his unfortunate passing, I was Mr. Justice Le Dain’s first clerk with my colleague, with Professor Peter Benson at U of T.
PY:
I’m so proud. You are now one of the many guests of this show who clerked at the Supreme Court. That’s amazing. And you followed the traditional blue chip, blue blood path in the law after clerking at the Supreme Court: Oslers, Goodmans. So we talked to Justice Sossin in my interview with him about asking. So when you want to get somewhere, you have to ask, you have to apply. So he talked about applying for the role of a judge. Did you apply or did they recruit you? Did they solicit you?
JFM:
Well, a couple of judges approached me and said it would be a good idea. But the reality is it is a 100% a political decision. So that while it was fun to be approached, I don’t really think they had the ability to make it so. But the timing was just perfect in my career. I was 54 and while not yet ready to retire in any stretch, I was starting to think about what the next phase was going to look like. Because I knew I couldn’t keep up the Goodmans volume forever. Or the big firm hours and grind forever. And so this came on just perfect timing. Because you know judgeship basically is a 15 year gig. So I’ll be 69 when I can go supernumerary, which is probably just about perfect.
PY:
Wow, I thought you were about 55 now. Wow. So I really wanted to talk about two big themes today when it comes to the civil list where you work in Toronto, and when it comes to Superior Court. I want to talk about case management, and I want to talk about trials. So when I read your judgments, when I read your decisions, I sense a bit of frustration in your tone, in your style. Are you frustrated with lawyers, Justice Myers?
JFM:
It’s funny you say that. No, I’m not. I am perhaps a little frustrated with the profession, with the professional bodies, and the lack of recognition or the lack of action to change. But I came up through big firms. I can’t bite the hand that feeds me. My tone is just unfortunately or fortunately my tone. I definitely have decided, and it’s no surprise to those who are critical and there are several, I will not convey the standard historic totally in the box adjective free neutrality that I don’t think serves us particularly well. I think it’s more important to speak to people, and I try to do that in my decisions.
PY:
And I think a lot of lawyers are thankful to you, that’s why you are one of the most popular and most cited judges as far as I can tell. I do though notice some frustration with competency, with lawyers competency, in your decisions. Can you speak to that a little bit?
JFM:
That’s been a bit of a bugaboo of mine through my whole career. It’s just, I’ve never been able to understand where the Law Society is in finding a way to ensure that lawyers have the basic skillset. Because it’s really shocking when you get on the civil list and maybe… I was lucky I grew up on the commercial list largely. The difference between big firms and small isn’t that there’s better lawyers at the big firms, but there’s training at the big firms. And you can just see so many times, unfortunately, and particularly on the regular civil list, lawyers come into court and they really are missing something.
They just don’t understand some piece of what they’re doing, and it’s such a… It’s a lack of training, it’s a lack of mentoring, it’s a lack of the regulating. And it’s so frustrating just because the clients are so poorly served, and it doesn’t do anything for us. We’re trying to decide cases and a lot of the time just move the freight. And figuring out where my duty to the clients falls into place to make sure they’re adequately represented is difficult. I don’t really want to step on lawyer’s toes. On the other hand, if something’s being done that’s just missed the boat, I think I have to say so. And it happens surprisingly often, unfortunately.
PY:
Right. Across the lifetime of a case, of an action, or an application, of a proceeding, what would you say are the top three competency issues that you come across among lawyers?
JFM:
Well, the biggest one really is the failure to prepare for court. Lawyers just sometimes come into court and if they’ve read their material, they haven’t retained it because I’ve only read it once and sometimes I know the facts better than they do. And that’s unbelievable because they’ve lived it for how many years. So a real lack of preparation. Sometimes it is a lack of understanding the procedures and so that somebody will bring an interlocutory injunction, and be facing the irreparable harm test, when in fact there’s a statutory remedy that they could go as a final matter and they don’t need an injunction. They’ve just brought the wrong proceeding and that’s not that uncommon.
So since we’ve been doing triage for short motions, I never realized when we started doing it. We started doing it because of the pandemic because we weren’t sure what we could hear. And what we discovered as soon as we started triaging, is that maybe 25%, maybe even a little more of all requests to bring motions, we reject. They’re brought in the wrong place, they’re for a remedy that isn’t needed, they’re for a remedy that’s… And it’s really frightening that we reject out of hand a high percentage of requests. Those aren’t the ones we send to a case conference, we just reject them.
PY:
And you’re talking about CPC, right?
JFM:
Well, no. It’s the written triage for short motions that we put in place after the pandemic.
PY:
I see.
JFM:
CPC is long motions, triage is short motions. One day they’ll get put together, but we’re not quite there yet.
PY:
So in this respect, some of your most cited decisions are restatements of the law. So I think I just did some research and I found that one of your most cited decisions is a decision where you state the law of vexatious litigant status. Or how to find a litigant to be vexatious, the test. And you just said that you’re frustrated with lawyers who don’t know the basic procedure. What are some of the solutions to this problem? The obvious solution, the traditional solution, is to do legal research and to find the restatement of the law in one of your decisions or another judge’s decision. So our system relies on lawyers dredging the depth of case law to get out those crystals of the law and to find out what the test is. Is there a simpler way?
I know what I do. I have handbooks, I have practice books and so on and so forth. But the issue today is… Well, I’ve been practicing for more than 10 years. And when I started, I started my own practice right after articling and that was unusual at the time, but today it’s not unusual. So you’re talking about the difference between big firms and small firms or solo lawyers. Today the difference is going to be more stark because the barrier to entry to practice law on your own is much lower now. You don’t need an office, you don’t need a secretary, you don’t need all of these things. Personally, I see more and more, very young lawyers just out of law school just starting their practice right away. So what do we do or how do we solve this problem where it’s often a question of just finding the right test at the right place?
JFM:
Well, first thing you can do, the easiest thing you can do, is look for a decision by Mr. Justice Perell. Mr. Justice Perell has a wonderful penchant for taking law from the history of the world, part one to yesterday. And so we used to… In law school, we were taught to go back 40 years to the last good root of title. So I say in litigation you just go back to the Perell J. decision and you know you’ve got a good root of the law. I think the really important thing, Pulat, is mentoring. I just think that it’s just vital that we remember we’re a profession. And that people have to, especially with more startup firms, there has to be networking and mentoring so that people have an opportunity to learn the craft.
They don’t teach much about the craft of advocacy and running a law practice and managing your day to day in law school. And the Law Society does what it does. I don’t really know yet whether the LPP is of particular value. I haven’t read reviews on it. I know the Law Society looked at scrapping it, then they unscrapped it. Maybe there’s something there. It used to be BarAd course, which had its own issues. But there has to be a practical way for people to learn the business of how to manage. I’m not just talking about how to do your accounting, but how to manage a litigation practice. There’s experience that matters. When I was a junior I used to laugh that the senior partners never knew the rule numbers, because they were all trained under the old rules and somehow they never had to learn the new rule numbers. How can they not know the rules?
Of course, I discovered after 20 years they knew the rules perfectly well, because you’ve learned the flow, you’ve learned to understand what they’re about and what they’re aiming for. Whether or not there’s an actual rule, if you know the principles, if you’ve been arguing it all your life, it’s there anyway. So experience in the craft of presenting a case is vital, and I think for young lawyers, that’s going to be mentoring and networking because you can’t rely on the Law Society to do anything particularly helpful.
PY:
And speaking of sources of information, speaking of where lawyers, especially young lawyers can get reference materials. So one of your other most cited decisions is a decision from last year where, I guess you are channeling one of our prime ministers when you say it’s 2020, right? You’re talking about using electronic evidence and electronic hearings in that decision, and it’s one of the most cited decisions. There are a lot of cites, a lot of reference to the paragraph where you say, “In my view in 2020, use of readily available technology is part of the basic skillset required of civil litigators and courts.” So my question is this, obviously lawyers cite these paragraphs because they want to convince other judges of something. That’s why lawyers cite things.
So why is it still necessary to convince judges that it’s 2020, that technology is available. Why is it even an issue? Why is it there? Why do they have to go to Justice Myers decisions? I love Justice Myers decisions, but it’s probably going to be easier to just have a practice direction that unequivocally says, “That’s it. This is the way we’re going to do it.” I understand that the tradition is that judges are independent, and lawyers are given some degree of procedural independence, some leeway. “Let’s hear him out. Let’s see where he’s getting with this.” But still on things like that, and obviously it’s very cited, very much cited. So why do we not have a single source that just tells everyone, “This is the way it’s going to be.” On things like that.
JFM:
Were it so simple. Let’s start at one place and I am going to finish somewhere else. But… there is a federation of law societies in Canada, which is the group of all the law societies across the country. And they have a draft model rules of ethics. And in it, there is a specific rule of ethics that lawyers shall be technologically competent. Part of competency is technology. Now that doesn’t mean you have to be an expert at using every single program, but you have to keep up and you have to be able to manage in the real world. Ontario is one of the only provinces that has not made that provision part of our law. So I hinted at it in Arconti, that you were referring to a minute ago. About a month ago, I said it more specifically in a case called Worsoff, where I said there is a duty of technological competency, but it doesn’t come from the rules of ethics because it’s not there yet.
And I can tell you that, for example, we’ve gone to Caselines in the last year or so, which is just a presentation program. It’s not all that tough. All it’s doing is, how do I get the judge to the page that I want the judge to be on that page for? And you’d be amazed how many lawyers are refusing to use it still a year later. Justice Dunphy this week had a rather pointed decision where he refused to scroll through 2000 pages. Because if you don’t tell me the Caselines page, I’m scrolling through PDFs. It’s crazy. Would you go into court before the pandemic without numbering your pages or without putting tabs in your book of authorities?
Self-evidently, no. Everyone knows you number the pages. So now you number them on Caselines. And the profession’s resisting. And sort of you have to understand that we are the most conservative profession. It is almost impossible to turn the ship. And certainly my little voice, I’ve been told very clearly by the powers that be in my court, that we don’t make law, we’re just the superior court. We’re not the court of appeal. So I’m one voice among 325. And if people will… What I try to do is get conversations going and be part of a conversation.
Because obviously I don’t make the final decisions on any of these matters and nor should I. But we have a very conservative profession. If you look at the Guy Pratte report that the Advocates’ Society is touting as the future of law, it says do everything the way we did before the pandemic because that was real good. And by the way, 53% of Advocates’ Society members are quite worried that virtual proceedings are going to be beyond the capability of self-reps. Advocates’ Society members don’t act for self-reps, self-reps are self-represented.
Why in God’s name, would you ask law firms who don’t act for real people, and often vulnerable real people, about how access to justice is for them. In fact, what we found during the pandemic, if you ask somebody who’s in court, is that self-reps have done fabulously in the virtual world, because they don’t have to take the day off work. Everybody uses a computer and speaks to their relatives by Zoom during the pandemic. And yes, there is a cohort that is economically or has other challenges that make it difficult for them to use a computer. There’s always going to be a cohort that’s difficult to use any process that we’re going to have to accommodate, of course. But it’s just silly.
It’s just silly to think then the Advocates’ Society’s report refers to Professor Susskind’s leading edge work on AI and the courts in one little footnote and says, “Oh, but we must get back into court because our system is so great. It takes five years to get to trial and it’s too expensive for the average Canadian. Yeehaw. Let’s celebrate.” So that’s a little frustrating, but again, I’m thrilled. I’ve got the best job on earth and I’ve decided very clearly that I’m not going to be one of those old judges who’s angry all the time. Because it’s too good a job. I’m in a very, very privileged place and I reflect on that every day.
PY:
So I-
JFM:
Sorry, go ahead.
PY:
Go ahead.
JFM:
So I was just going to say that we’re a very conservative profession. The leaders of the profession have very little incentive to change, because life is very good. Everyone knows that lawyers have done extremely well during the pandemic. Because costs have been cut by a gazillion dollars. The big firms can’t believe it. Juniors’ hours have gone up, because they’re sitting at their computers all day long at home and expenses have gone way down. So even though the Supreme Court of Canada says our system doesn’t work seven years ago, the thems that run the institutions, and that includes the judges have very little incentive to change.
And so the bar, the professional associations and the judiciary are very comfortable. And there’s no public outcry, because in a country that provides free healthcare, civil justice is never going to be a high legislative priority. And I understand that. But we’ve got this system that’s acknowledged to be broken at the highest levels. It’s broken and nobody really is that interested in fixing it. We put band-aids on every now and again, but that’s about it.
PY:
Well, we were really thankful for electronic filing last year. That was a big gift from the province. We can go much further of course, but that was a shocking gift. That was a completely unexpected. I… Go ahead.
JFM:
The Chief Justice and the ADM have really done fantastic jobs coming forward. And I don’t mean to, in anything I say, I don’t mean to criticize either… I’m sorry. My doggy is [inaudible 00:24:14]. I really don’t mean to criticize the court’s administration or MAG. In the last couple years, they’ve taken what has been a horrible situation and really turned it into… Made a silk purse out of it. And the government is apparently serious about looking at fixing things. And I think the Chief Justice has pushed all the right buttons at an unbelievably difficult time. There’s just so much fundamentally more to do and not lot of impetus to do it.
PY:
Yes. I heard, in your words about virtual hearings, I heard a hint that virtual hearings level the playing field somewhat. And I’m wondering if this is what we joked around on Twitter last year, when I said that hearings in person give an advantage to people with good looks, with Hollywood aplomb, with a certain demeanor. Because you know, judges are people. And people say, lawyers say that advocacy is both art and science. And I’m wondering about the art part. Is it the part where you sort of seduce the judge, right? Somehow, a little bit. And I’m wondering if it’s much harder to seduce the judge on Zoom? And is this why perhaps some advocates, more established, more experienced advocates prefer in person hearings, because it’s just easier for them to establish the rapport with a judge in person rather than on a screen where everybody looks the same in. In Zoom, everybody looks the same.
JFM:
I always think of the great American litigator, Gerry Spence, who walks into courtrooms with his big cowboy boots on and people wearing very, very expensive clothes, and we have the leveler of robes. And by the way, I’m told the that we’re going to be robing virtually one of these days, not too long. But there may be, there may be something to that, that some people are deprived of their charm, but I’m not sure that’s a really positive thing. I think the charm can be part of effective advocacy.
I like to think that I’m more attracted to the real meat of the arguments. But as you say, we’re all human. I’ve not heard that particular topic discussed or read that. It could be either a complaint or a positive. My sense of why the seniors don’t like it is they’re more comfortable the other way. And I keep telling people, think about the first time you stood up in court as a senior council, and a junior shoved a note in front of you. You have to figure out how do I keep talking while I’m going to read this note and understand it.
And you learn that task, when you have a junior, you learn how to present and read your… Being online’s no different. It’s just learning a different presentation task. And you may be getting… In the big firms, they’ve all got Slack or they’ve all got some real time communication with their teams. That’s perfectly fine. And you learn how. I think the discomfort is just, my sense of it is it’s just people are just more basically comfortable with in person. In Worsoff I had a lawyer argue to me that, “We just know “in person” better, because it is. We all know it.” Yeah, sometimes. For sure sometimes.
PY:
I am more comfortable with Zoom and Caselines. I found that combination just is magical, but it’s me. Just me. You mentioned that Justice Dunphy’s decision, I think, that he wrote this week or last week, I think this is the decision where he spoke about taking, allocating time away from summary judgment motions to summary trials. Or maybe it was another decision.
JFM:
He’s got a bunch of good ones lately.
PY:
Yeah. But I heard the same thing in civil practice court yesterday, I think. And the word is that Toronto is going to be taking time away from summary judgment motions next year and giving it to summary trials. Can you speak to that a little bit?
JFM:
Sure. And it’s not just summary judgment motions, but there’s no question that summary judgment motions have taken over our lists and they are incredibly time intensive for the judge in both in terms of preparation and writing. And they have… Although I was an early proponent of summary judgment, mainly because of the ability to get case management as part of the summary judgment process, what we get now is a full trial brought before us in a two-hour hearing. And it’s not good advocacy, it’s not fair justice.
And I’ll tell you, the reality is our processes haven’t changed in 40 years. And you throw now these massively complicated cases with huge records, and we don’t have prep time and we don’t have writing time, or not enough. But the other thing too with it is the Court of Appeal, as you know, has not embraced the summary judgment process. Although that’s not totally fair. If you look at the rates of appeals, in fact about almost 90% of summary judgment motions are upheld. But the messaging in the big cases is be very careful.
And particularly they are much more comfortable when there’s a little bit of cross examination on a factual issue. The summary trial gives you the best of both worlds. And it’s funny, in England, there is no examination in chief. Just every single trial goes on witness statements and you put the people on the witness stand. So this isn’t some crazy system that we’ve developed. It’s a tried and true way to get your case to trial quicker. And what I think is the most important piece of it is, you can do it any way that fits your case.
You can have a little discovery or not. You can have cross examinations out of court, and then just do maybe one little issue in court. Whatever you and your friends on the other sides think is needed for the case, agree on a schedule, go to a case conference, and the judge will schedule it. So it gives us infinite flexibility and variability to get away from the rules, which are the worst and longest process where people just can’t agree and can’t do better. But there’s so much opportunity out there to do better than what’s in the rules by agreeing with your friends.
And that’s the hardest problem we’re having. And it’s a problem the commercial list went through in 1995, making lawyers understand that they can agree on procedural matters and it’s in everybody’s interest. So when you say we’re moving away from summary judgment, we are pushing summary that look like trials in a box towards summary trials for sure. But we’re also moving away from short motions and we’re going to be moving them.
We expect much more so to case conferences. Because they can be resolved. They can be resolved, and then almost always with a little bit of discussion and a little bit of cooperation. The biggest cases on the commercial list, you don’t see interlocutory motions. The commercial list won’t hear of it. They won’t allow it. You go to a 9:30 appointment, you get, “Here’s how we’re going to go forward.” And that’s what we’re trying to do. We’re trying to cut out some of the junk by using case conferences and getting judges engaged in a more informal, much cheaper, and hopefully soon, an earlier way. Right now we’re a little backlogged, but I’m working on a scheduling change to hear more case conferences and less motions.
PY:
Yes. I am familiar with the commercial list style. I practice on the commercial list as well. And they don’t have a lot of undertakings motions, refusals motions there. It’s a 9:30 appointment. And especially with pleadings motions where you don’t need evidence really, the judge can just look at the pleading and say, “Hey, this has to go or this is okay.” And on the civil list right now, I have to prepare a record. I have to write a factum. All right. So I completely understand.
It’s really great news that we’re moving towards the commercial list model. So you spoke about the labour intensive nature of summary judgment motions, and the prep time required. And then you contrast the summary judgment motions with summary trials, and the traditional trial model of course, is that the judge arrives in the courtroom on the morning of a trial with a blank mind. Is this still the model? So will the judge not read anything, even the pleadings before the trial? And… Can you just speak to that a little bit?
JFM:
Sure.
PY:
Especially for our junior lawyers.
JFM:
Well, let me just tweak a little bit what you said, because the judge going into a trial reads the pleadings, right? There’s a trial record. So the judge knows at least the subject matter and has a hint of the issues. And of course we’re doing so much trial management now. Most judges are expecting to have, before or at trial, some kind of sense of what the issues are, what the evidence issues and objections are, the common book of authorities, the common book of documents.
Now you don’t read those in advance, you don’t get them till the day out. But there’s a lot more early knowledge in the judge, than previously. So for a summary trial, no, we’ll read the evidence in chief in advance. That’s the whole point is that, the summary trial, you just cross examine on the issues that are in issue, right? What does in issue mean? Disagreements. You don’t need a trial for things that are agreed upon. So the judge reads the affidavits, and comes in and hears the cross on the issues, and then you’re done. A summary trial’s a bit of a hybrid between an application and a trial. It’s just, we don’t use the trial model for facts that don’t need fact finding.
PY:
In my experience in summary trials, I’ve seen lawyers just do the examination in chief, even though affidavits had been filed. Or I’ve seen lawyers do some of the issues in their examination in chief. So what you’re saying is your preferred style is, don’t even do chief, just go straight to cross?
JFM:
Well, I’m good with what some people call a warmup. That you give your witness 15 minutes of chief just to calm the witness a little bit and get familiar with hearing questions and answering questions, rather than just subjecting them to a tiger right off the bat. So I’m good with a little warmup. And I think it’s up to counsel. Counsel should tell me what they think is going to work for their case.
PY:
So you’re really dropping bits of wisdom here. These are really important. But the first impression of every junior lawyer is the rules of civil procedure. This is where they get their first impression of the standard of practice and the rules of civil procedure of course are daunting. They cover all scenarios. And even when they speak about summary trials, they provide that there is examination in chief, even though affidavits had been filed. So I think we’re just going back to this issue where there is a difference between the written word, the standard written in the rules, and the actual practice.
And of course a lot of lawyers are proud of this. They say, “Well, we know how it really works.” And “you go by the rules, but we know how it really works.” How do we, and I’m sorry to be drilling this down so much, how do we bridge this gap between lawyers who know how it really works and all these multitudes of new lawyers that are coming into the practice and are just looking at the rules of civil procedure? I know you said mentoring, but… These YouTube videos, for example, right, also?
JFM:
Sit in court, right? Now that’s one of the things people are saying is a drawback of the virtual world, is that it’s harder to just go sit in a courtroom and then walk to the courtroom next door and sit there for an hour. But I used to love my time in motions court, when you hear five motions before you. Because you learn so much, not so much on the merits. But what you’re saying, how lawyers are doing things and what the real life situation is. Bring the motion for security for costs, and you find out very quickly, it’s about the real justice of the merits. And is the plaintiff perceived be really weak and playing some kind of a game or is the defendant right to be really concerned. So you learn those things by doing and watching and reading case law for sure.
There aren’t great texts, I suppose, on civpro. Civpro is not really that exciting a topic. There’s some texts out there, but maybe the best for the practicality would be Justice Archibald’s text. Because they write up little articles and they’re like… There you go. The Superior Court Practice. So that’s pretty… And it’s very up to date. So there’s, there’s certainly resource material out there. I read Canlii every day and I suspect you read Canlii every day too. So you stay up, you read, you find the right resources, but it’s not simple. And there is no substitute for experience.
PY:
Civil trials are often contrasted with criminal trials when it comes to evidence law. So one of the common themes among civil lawyers is that now everything goes to weight, not to admissibility. In criminal trials, it’s really about admissibility. In civil, it’s about weight. Is this a correct take? And what do you think about this?
JFM:
Well, I think it’s fair to say that there’s a much broader acceptance of laxity in the rules of evidence. But part of that though is as every counsel knows at a trial in particular that there’s time constraints. And you have to decide, am I going to spend my time arguing a bit of an arcane point of evidence law, when I can just say to the judge, “Yeah, I don’t care it goes in, ignore it. And because here’s why you should ignore it.” And I can prioritize my time elsewhere. Whereas criminal law has no constraints. The defense can go on as long as they want. Don’t let me miss the fact though that the Court of Appeal has quite recently said that that’s all a misnomer. That we have to be very careful with evidence rulings.
And in particular now when your joint book of documents… The Court of Appeal has required that for every single document there has to be two admissions or two pieces of information. Is it admitted as authentic? Is it admitted for the truth of its content? So that we know upfront with every single piece of evidence, what the agreed upon use is and what pieces are going to need rulings. So the Court of Appeal has tried to reinstate a bit more discipline on the evidence side, but it’s always going to be subject to counsel. Because we hassle you so, to keep you within your time deadlines, because we have other trials waiting and we can’t go over.
PY:
Do you think it’s possible, and I haven’t tried that personally, but do you think it’s possible now or is this actually practiced that in in-person trials, which I know are suspended right now on the civil list, but in in-person trials, can we have Caselines? So for example, I don’t have to tell the judge, go to this tab. I can just do the presentation mode.
JFM:
So I can tell you going forward, the answer is yes. There is no more paper, right? There’s my lovely little fellow who carries my books to court with me, will be no more. He or she may be helping me plug in my computer now. We are done with paper. Caselines is the way for now. Caselines may get replaced. The government has announced the joint program to procure a system, an end to end filing, presentation system for both us and the Ontario Court of Justice.
That might be Caselines. I imagine that they’ll bid. But I don’t know if the RFP is out yet, but I know they’re working on it. So the issue though, you say in person trials are suspended. They’re actually not in Toronto. We are running jury trials, for example. And there have been in-person non-jury trials. But the biggest issue that we’re having, isn’t the pandemic. Our courtrooms have been ajudged safe by the medical officer of health, with the various limits that are in place and the plexiglass, et cetera.
The problem we’re having right now with in person trials, is the technology. For example, you’ve got your computer and you’ve got Caselines up and you want to show a document to the witness. The witness isn’t in Caselines, how do you display the document to the witness? So we’ve asked for monitors to be put up on the wall in every court so that we can display documents that are in Caselines to the witness, and for the judge and everyone else to see. It took a while, but we now have three monitors in the courtroom for the judge.
So the judge can see Caselines and be on Zoom for hybrid witnesses and have a working monitor. So they’re getting there. I can tell you that two weeks ago, I toured a half a dozen courtrooms on the seventh floor of 330 with the RSJ, Justice Firestone and with Justice Wilson, my co-team lead. And we had lawyers at my old firms call in as if… We mocked hearings. And we got every single courtroom up and running for virtual hearings with Caselines, with Zoom, with multiple Zooms in the room with no interference between… You know how you get the reverberation when you have two Zooms in one room, that’s all been taken care of.
So the government is, and court services are working on it. Unfortunately, what we discovered in that run through is every single court we went to worked, but it took between 15 minutes and a half an hour to get it up and running. Because there’s a setting difference, there’s a cable missing, there’s a this. There’s always a something. So it’s a work in progress. But yes, it is most definitively going to be electronic presentation from now on, not paper.
PY:
And do I understand you correctly that it’ll be possible to do hybrid trials where a witness for example is in California and will beam in through Zoom, but the rest of the trial is in person?
JFM:
Well, I don’t think you’re ever going to see in person expert witnesses again. Why would you pay a doctor to close her office to stand around in the hallway for a day and a half waiting to give an hour’s testimony? Or why would you bring in an expert from Europe and pay them to stay in a fancy hotel and to eat and drink, and not to mention testify. It can all be done an hour from your desk. So I think we are definitely going to be seeing hybrid in, I would say, in almost every case.
I will be very surprised to see people who want to take a full day off work just to testify. Or people who want to pay experts to come to court rather than testify from their office. And why would lawyers want to go to out of town anymore? I don’t to criminal, but I’m told you can appear today in Old City Hall and then Newmarket and then Kapuskasing. That’s phenomenal. There are uses for virtual even when we reopen. And I totally accept we want to reopen. My house is fun to sit in for a couple of years, but there is a courthouse. I expect to be there one day.
PY:
Your honor, I am extremely happy to hear all these good news about the next year or next years. And about the hybrid proceedings and about electronic proceedings. This is really good news for me. And I think for many, many other lawyers, I’m so grateful to you for coming to the show today and sharing this information and wisdom with many lawyers in Ontario, probably outside of Ontario. Thank you so much. Thank you so much for your time. I know we’re doing this before court, so you have to move on. I really appreciate it. Thank you so much, Justice Myers.
JFM:
Thank you. I hope you don’t mind if I just finish with my disclaimer that I always need to use. Because I do give information and answer questions as best I can. And to the extent that anything I said was principle and policy of course, it is my own and is not intended to… I’m not the spokesman for the court. I am not the spokesman for the Chief Justice. And I’m one of 325. So thank you.
PY:
Thank you so much.
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