The point of friction between the court, and the litigation bar and some of their clients, emerged two years ago, after the pandemic compelled the top court to move to Zoom hearings. At the time, the court’s deputy registrar, citing circumstances related to the pandemic, cut back the number of counsel permitted to appear in the (newly virtual) courtroom to a maximum of two lawyers per party and one lawyer per intervener, notwithstanding that the Zoom platform permits dozens of participants.
This contrasted with the court’s pre-March 2020 usual practice of permitting up to four or five lawyers per party, and two lawyers per intervener, to appear as counsel in its physical courtroom.
Notably, the court’s restriction of counsel “appearances” in the virtual courtroom during the pandemic had the knock-on effect of limiting counsel credits in the ensuing judgments, as the court — despite objections from the bar — stuck with its view that only those counsel who officially appear before the judges at the hearing get counsel credits.
As a result it is estimated that dozens of lawyers who were not permitted to officially “appear” via Zoom — but who worked on, and contributed substantially, to the cases, and would normally have travelled to Ottawa to officially appear in the physical courtroom — did not get their names on many of the judgments handed down during the pandemic.
That perceived unfairness and arbitrariness of that outcome sparked push back from some counsel and clients. E-mails and submissions to the court, starting in 2020, challenged the need to restrict the number of counsel appearances on Zoom, as well as the court’s reduction in counsel credits.
Following discussions with members of the bar, including with the Canadian Bar Association (CBA), the Supreme Court recently reconsidered its policy, advising the association last month that it is changing its practice on counsel credits — but not with retroactive effect.
The CBA reported to the court last January that a “solid majority” of the nearly 550 litigators that the association surveyed favoured limiting the number of counsel named in Supreme Court decisions to four lawyers — for both interveners and main parties. The main reason respondents cited is to recognize lawyers who work on the cases, but also to help junior lawyers develop their careers and to increase the diversity of the counsel who appear before the highest court.
“The court agrees with the recommendation to list up to four counsel per party on its judgments,” Supreme Court Registrar Chantal Carbonneau responded in a June 1, 2022, letter to Alan Rankine of Ryan Law, who chairs the CBA’s Supreme Court liaison subcommittee.
“We hope that recognizing additional co-counsel in judgments will further the goals of recognizing lawyers who worked on the file, helping junior lawyers develop their career and increasing the diversity of lawyers who appear before the court,” Carbonneau wrote.
She stipulated, however, that “this change in policy would not be applied retroactively to judgments already released.”
Rankine told The Lawyer’s Daily his subcommittee is discussing whether to ask the court to provide retroactive counsel credits — which task, he acknowledged, could require considerable administrative work, to the extent that it could be accomplished.
Going forward, the court’s move “resolves pretty much the whole issue that the bar was concerned about,” Rankine said. “But the retroactive [issue] is still something that’s on our plate, I would say.”
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Eugene Meehan, Supreme Advocacy
“Going to the juridical Olympics takes a team,” the Supreme Court’s former executive legal officer noted. “It is common for a team of lawyers to work on a Supreme Court of Canada appeal, with research, writing and oral argument being divided up a variety of ways. To only list one or two of the more senior lawyers involved on the final decision is not reflective of the actual reality as to how the file got there.”
Meehan noted that an appearance at the Supreme Court of Canada gives counsel significant exposure. “Many counsel, particularly younger lawyers and visible minorities, may not have had as much access to traditional forms of promotion and recognition in our profession, like certain awards or Queen’s Counsel designations.”
Nor is counsel credit a matter of mere professional vanity, he pointed out. “It goes on lawyers’ bios and gets referenced on the law firm’s website — all a good way to encourage excellence. Indeed, the Ontario Court of Appeal recently issued a statement encouraging senior counsel to share oral argument with junior counsel. The Supreme Court’s recent move furthers this trend by fostering the training and mentoring for newer advocates.”
Another lawyer, who like Meehan appears frequently at the Supreme Court, called it “regrettable” that the court reduced the number of lawyers who could appear on appeals (via Zoom) and also limited counsel credits.
“There didn’t ever seem to me to be a good reason why junior counsel, or other second-chair, third-chair counsel couldn't appear for interveners, or third- or fourth-chair counsel couldn’t appear for parties, given that it was just a matter ... of having a few more people log into the Zoom,” said the counsel, who spoke on a not-for-attribution basis. “But I guess it's understandable. The court was venturing into Zoom hearings for the first time and they just — I’m guessing — thought it would be logistically less complicated to limit the number of individuals who would be logged into the Zoom meeting, and fair enough — I do think that it was regrettable, though.”
He called the court’s decision not to try to retroactively add counsel credits to published judgments “harsh but fair.”
“The policy of the court is only to ... list those counsel who did appear [at the hearing], and so I think going back and saying, ‘Oh, yeah, so and so would have appeared if you’d let them’ — and then editing judgments once they've been published ... would be a terribly stressful exercise for the court staff ... impossible to adjudicate fairly who actually would have appeared, and it’s all hindsight. ... I think that leaving things the way they are is the right thing to do.”
In her letter to the CBA, Carbonneau noted that the mechanism for identifying counsel will remain as it is now: parties are required to provide the court with the name of counsel who will be appearing at the hearing, as required by Supreme Court Rule 71(4), and those counsel will be listed in the judgment.
“The limitation on the number of counsel last year was necessary to allow the court to conduct its appeal hearings reliably and securely with counsel appearing via Zoom and judges hearing submissions either in the courtroom or by Zoom,” explained Carbonneau, who only became the top court’s registrar Dec. 31, 2021. “There were significant technological challenges to incorporate the technology needed for virtual appearances with the technology already in place in the courtroom to support simultaneous translation and livestreaming,” Carbonneau noted. “These were resolved last summer, which allowed us to apply Rule 71 with the usual flexibility during the current court year.”
The issue of counsel credits on Supreme Court judgments arose before the start of the March 2020 COVID-19 pandemic. At the 2017 annual meeting of the court and the CBA’s court liaison subcommittee, the CBA suggested that all counsel who sign a factum should be credited as counsel for a party in the published reasons for judgment. The Supreme Court considered the suggestion but told the CBA in 2018 that the court would continue its practice of naming in judgments only counsel who officially appear at the hearing and those counsel for parties who file written submissions only.
The issue was raised again in 2021 by the CBA subcommittee at its meeting with the court, and the court asked the CBA to provide suggestions regarding amendments to its practice and to the related court Rule as to either the number of counsel who appear on appeal hearings or the recording of appearances of counsel in the published reasons for judgment. Correspondence to the same effect was also sent by The Advocates’ Society. The consensus was that four counsel should be listed for each party — appellant, respondent and intervener. No change to the Rule was proposed.
Counsel who do not officially appear at the hearing but who contribute to preparing the appeal factum can sign the factum and those factums are posted on the Supreme Court’s website. The court says there is no limit on the number of counsel who can sign a factum and that it lists the names of all counsel for a file on its website.
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