28th Immigration Law Summit – Day Two (November 27, 2020)
2020 has led to the rapid rise of the virtual hearing. There is no question that virtual hearings are here for the foreseeable future and will be a permanent fixture of litigation. As of October 2020, over 400 judicial review hearings have been heard at the Federal Court and about 70% of all RPD hearings as of October 2020 were being held virtually. Although virtual hearings have offered a surprising number of benefits, some concerns still remain.
In the early days of pivoting to virtual hearings concerns were raised by refugee advocates and other legal groups about the potential for reduced fairness and reduced access to justice in a virtual hearing. This paper will explore whether these concerns have materialized and what can be improved in a virtual hearing.
Lastly, this paper will explore some of the unintended benefits and disadvantages of virtual advocacy and equip counsel with the tools they need to perform at the same level of advocacy expected in a brick-and-mortar courtroom.
What have we learned about virtual hearings?
A physical courtroom is not necessary for delivering justice and advocating for our clients. In many ways, virtual hearings enhance access to justice by allowing parties outside of major city centers to participate and view their hearings online. Courts and tribunals that were primarily paper dependent have shifted quickly to electronic delivery of documents which has led to cost savings for courts/tribunals, law firms and clients.
It is important to note that virtual hearings were taking place at the IRB prior to the pandemic. For example, RPD Members in Vancouver may be assigned to hear refugee claims filed in Toronto to make better use of resources. Detainees in immigration detention have often appeared virtually for detention reviews before the Immigration Division. Witnesses before the IAD have been appearing regularly via Skype since 2017. Before the pandemic, the Federal Court held stay motions via teleconference.
What have the experts said about justice in the time of COVID?
“While governments will need to assess their funding priorities in a manner that accelerates this improvement, all of us — in the judiciary, legal profession and its regulators, and academia — need to play our part. We must review our processes and requirements, with a meaningful and calculated assessment of what is redundant, no longer necessary in the age of technology, not essential to the functioning of justice, or anachronistic.”
– Former Chief Justice of the Supreme Court of Canada, Beverley McLachlin, The Lawyer’s Daily, March 31, 2020, available at: https://www.thelawyersdaily.ca/articles/18386/access-to-justice-justice-in-the-time-of-social-distancing-beverley-mclachlin
“And yet, with all these profound changes over the last 114 years in how we travel, live, govern and think, none of which would have been possible without fundamental experimentation and reform, we still conduct civil trials almost exactly the same way as we did in 1906. Any good litigator from 1906 could, with a few hours of coaching, feel perfectly at home in today’s courtrooms. Can we say that about any other profession?”
- Supreme Court of Canada Justice Rosalie Silberman Abella, The Globe and Mail, April 21, 2020, “Our civil justice system needs to be brought into the 21st century”, available at: https://www.theglobeandmail.com/opinion/article-our-civil-justice-system-needs-to-be-brought-into-the-21st-century/
The pandemic has brought a renewed sense of urgency to push the immigration and refugee bar, IRCC decision-makers, and the Courts/tribunals into a fully functional digital environment. Although the immigration and refugee bar consists of a large number of sole and small firm practitioners that may struggle with the up-front investment in digital tools, the current legal environment has shifted to a point where a failure to digitize will result in reduced access to justice for our clients and a failure to meet basic practice management requirements.
We owe it to our clients to review our internal practice management procedures and digitize to the fullest extent. We need to be aware of the resources available for our vulnerable clients to get the electronic tools they need to fully participate in their hearings. We have an opportunity to re-imagine our practices, which tend to be administrative-heavy in the immigration field, and to make ourselves completely unreliant on paper.
Although professionalism must be maintained in the virtual world, video hearings can create the connections that we are missing without in-person court appearances. A virtual hearing can be an opportunity not to present a perfected, edited version of yourself. Given that an online environment is more naturally informal, this lends itself to creating a connection between parties which is important during oral argument.
There is also opportunity to reconsider whether steps in the litigation process can be streamlined or eliminated. A Court of Appeal of Ontario decision from Justice David Paciocco from April 3, 2020 ordered that an appeal could be decided entirely in writing and that no oral hearing was required. Justice Paciocco explained why the parties written materials were sufficient to address the issues and that if any questions arose from the written materials, then a decision could be made at a later date to address these concerns.
This could be a time to re-imagine the purpose of oral argument during a Judicial Review hearing. Instead of a presentation of oral argument, the Judicial Review hearing is the time for counsel to present their arguments in a ‘story-like’ format, debate the issues, and answer questions from the presiding judge.
The onset of the pandemic is an opportunity to re-balance the importance of a client’s “day in court” with the need for a quick and fair decision. With the average time for a RAD decision taking 6 to 12 months, by the time an applicant has a JR hearing, often 18 months to 2 years has passed since their refugee claim has been rejected. The time saved as a result of virtual hearings can be put into faster decision-making.
Have the fears of virtual hearings materialized?
As noted above, the RPD has been conducting video hearings prior to the onset of COVID-19. When deciding whether a virtual hearing is acceptable when compared to an in-person hearing, counsel must put the interests of the claimant first. If counsel is not comfortable with the proceeding of choice by the claimant, the file can be referred to different counsel. Any decision to proceed virtually must be made in the client’s interests. Below are a summary of common concerns vocalized by the immigration and refugee bar and an assessment about whether they have materialized.
Given that the RPD continues to hold both in-person and virtual hearings, and counsel can request an in-person hearing, the concern about access to justice being hampered has not materialized. For many clients, a virtual hearing has offered a more comfortable environment where they can give testimony. In a judicial review hearing, applicants can watch their hearing live without facing practical obstacles like transportation to downtown Toronto.
Where access to justice has most commonly been a concern is when an RPD hearing requires interpretation for a non-English or non-French speaking claimant. Interpretation by phone or video has resulted in adjournments. Interpretation in person is already a difficult task and in-person cues can be vital to adequate interpretation.
Our office has reported concerns with the clarity of the CD recording of a refugee hearing because the parties are speaking with a mask on which muffles the sound of their voice. Without a proper recording of what transpired at the hearing, this could result in a refugee hearing needed to be re-determined because of lack of completeness of the record. These are procedural fairness issues that could increase in frequency in the coming months before the RAD or Federal Court.
Access to justice has been hampered at the Immigration Appeal Division (“IAD”). The IAD is unique as a Division is an open tribunal that is available to members of the public. However, the IAD is currently only allowing public access to hearings with permission which reduces access to justice as well as legal education for students who are common observers of IAD proceedings.
Another issue that has been raised with in-person RPD hearings is the limited opportunities to congregate in areas where the RPD is located. This can be alleviated by scheduling a virtual hearing where counsel and claimant can converse in a private online meeting room without the Member. One downside to the virtual hearing process is that counsel cannot provide in-person support and reassurance to the claimant during breaks unless they are in the same physical office space.
Another concern raised is the issue of “Zoom fatigue”. One solution is to put additional time and work into written materials and for counsel to focus their advocacy on their written argument while leaving the oral argument for concise storytelling and encouraging a question/answer format that is more interactive rather than the delivery of a 30-minute presentation. Decision-makers can make sure a virtual hearing is as interactive as possible whereas counsel can make sure they are open and flexible during argument to allow for debate and discussion. Persuasive and pointed advocacy will continue to be even more critical when hearings are conducted virtually.
What advantages of the virtual hearing exist for claimants and counsel?
Formality is reduced
An online hearing is a naturally less formal setting which allows the parties to forge a different type of connection which can increase the quality of advocacy and decision-making. Advocates and decision-makers are being forced to bring their lives to work, including our children, partners, and homes which can all contribute to bringing authenticity and build connections. An informal setting allows counsel to bring their personality to the virtual hearing setting which can assist in enhancing their advocacy. The best advocacy happens when the parties are comfortable and can be themselves - this will lead to better arguments which assist with better decision making.
Communication with parties has increased
Email communication with the IRB, DOJ and IRCC has given private bar counsel the tools to push proceedings forward thereby increasing access to justice for our clients. Electronic transmission of documents has led to increased efficiency and response times from all parties. Scheduling and confirmation of receipt of documents has improved overall.
Better access to overseas witnesses
The availability of the RPD to examine witnesses overseas using video technology was not available prior to the use of virtual hearings. Witnesses who previously testified by phone from overseas can now testify by video in a virtual RPD hearing. Access to witness testimony using video technology allows the RPD Member better access to evidence in a refugee claim and more options for a claimant to call a witness who is overseas and provide information that is useful to their claim.
What disadvantages of the virtual hearing exist for counsel and claimants?
The most obvious disadvantage for claimants is the potential that they are testifying before the RPD without their counsel being physically present. As noted above, counsel can play an important role in reassuring claimants during hearing breaks. If space allows, claimants and counsel can attend the online hearing in the same physical office in separate rooms which allows counsel to be close by to put documents in front of a claimant or offer emotional support after difficult testimony. If this is not available, counsel can set up a separate video or phone call with the claimant during hearings breaks to provide support.
Some claimants may not have familiarity with speaking for long periods of time on video so it is important for counsel to run hearing preparation sessions using the same or similar technology (Microsoft Teams or Zoom) so they are prepared to see how a claimant appears while answering questions on video. Counsel may need to spend additional time preparing claimants who are unfamiliar using technology to ensure they have an adequate level of comfort with video hearings prior to their actual hearing date.
Virtual hearings have brought more benefits to counsel and claimants than disadvantages. One important byproduct of a virtual hearing is that applicants who had obstacles to attend their Federal Court hearing in person, due to employment constraints or intimidation about being present in a courtroom, are now attending their Judicial Review hearing online. Furthermore, virtual hearings have allowed much greater access to the IRB and Federal Court to claimants and applicants who live outside of major city centers.