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Pandemic observations from self-isolation | Malcolm Mercer

Wednesday, April 01, 2020 @ 8:34 AM | By Malcolm Mercer

Malcolm Mercer %>
Malcolm Mercer
Late on Friday March 13, Toronto Public Health advised that everyone who had travelled outside of Canada go into self-isolation for 14 days after their return. My wife and I self-isolated having returned from United States six days earlier. As I write, it is now more than two weeks into a new world. Much has changed.

Over the March 14-15 weekend, significant decisions were rapidly being announced. On the Sunday, the Court of Appeal, the Superior Court and the Ontario Court announced public health measures effective on the following Tuesday. The Ontario Court announced further measures effective at the end of the week. The court decisions recognized the need to be able to deal with urgent matters including those involving criminal and family matters and public health. The announcements included remote access for some matters and plans to expand remote access in early April.

The Law Society of Ontario (LSO), like many other organizations including the law schools, moved to remote operation. Licensing examinations had to be cancelled. We gave urgent guidance on virtual practice including with respect to virtual swearing of affidavits. The LSO has provided guidance to practitioners through its website, its helpline and e-mails to assist in dealing with clients and with professional obligations. Leveraging resources and acting as a facilitator, our call centre now connects self-represented litigants with dedicated volunteer family lawyers for urgent matters. The LSO has announced fee deferrals to assist in the serious cash flow problems faced by many practitioners. Work is ongoing to address the issues confronted by practitioners and licensing candidates.

On March 20, the Ontario government suspended limitation periods and procedural time periods. On March 23, the government announced the closing of non-essential services and deemed that lawyers and paralegals provide essential services.

The legal associations and their members went into overdrive assisting their members and the public. The Criminal Lawyers’ Association volunteers did extraordinary work in the criminal courts. Family law volunteers have stepped up to help in urgent matters. The Ontario Bar Association and the Federation of Law Associations have done spectacular jobs of providing assistance and information to their members.

And most importantly lawyers and paralegals across Ontario have dealt with the urgent needs of their clients and, significantly, have suffered substantially diminished revenues as the courts have been shut down and clients have focused on other pressing matters. The good work of Legal Aid in recognizing the contributions and needs of lawyers providing urgent assistance should be recognized.

My personal reflection and observation is simply that it has been amazing to watch the effective collaboration and rapid decision making by all of the participants in our justice system. In an unprecedented crisis for which there is no playbook, people have recognized the public health imperative to protect individuals from the COVID-19 virus and to preserve the health-care system by “flattening the curve.” And amazingly, this has been done nimbly and effectively by everyone recognizing the problem, acting in the collective interest and doing their part.

While there will always be armchair quarterbacks and critics, what is most significant is the immediate pervasive desire to come together to get the job done. I say this knowing well that there is real suffering and stress being experienced — from the pandemic that we are experiencing and the resulting economic crisis.

While it doesn’t feel like it, we are still in the early days of this crisis. We don’t really know how all of this will play out. We will have to continue to focus on health protection, dealing with economic stresses and making the legal system address the needs of Ontarians in unprecedented times. The answers to these challenges will likely get harder, not easier. But there is a real basis for optimism as we reflect on what our collective dedication and ingenuity has already done. And while not the main point, there are lessons to be learned and remembered about doing things differently that can be applied when we return to more ordinary times.

It is not uncommon for crises to bring out the best in people. That has been the case for the COVID-19 crisis. We should be proud of our individual contributions and recognize the contributions of the many people have worked so hard to face the challenges of COVID-19. At the same time, we need to continue to see the adverse effects being suffered and to do our best, as individuals and as organizations, to help.

Be well.

Malcolm M. Mercer is currently serving his second term as treasurer of the Law Society of Ontario. Committed to issues of legal ethics, he is a member of the Canadian Association for Legal Ethics and co-chair of the CBA-FLSC Ethics Forum. He is an adjunct professor at Osgoode Hall Law School at York University and a partner in McCarthy Tétrault LLP’s litigation group in Toronto.

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