Welcome to 2025 - a year of possibilities

An overview of federal party policies on the administration of civil justice, a case comment and links about distraction

…it is generally agreed that no activity can be successfully pursued by an individual who is preoccupied … since the mind when distracted absorbs nothing deeply, but rejects everything which is, so to speak, crammed into it.

Seneca, from “On the Shortness of Life” (49 AD)

2025 promises to be an interesting year politically and legally. My goal for 2025 is to seek (and hopefully find) the right balance between my new radio career and my post-adjudication role. I’ve just finished a few radio shows featuring 2024 releases and now ready to look forward to a new year of new music and live performances.

I’ve still not come to a final decision on whether to implement a paid tier of subscription for this newsletter. Stay tuned as I think through what I want this newsletter to be. Leave a comment if you have any suggestions:

My latest column at slaw.ca was published yesterday - a review of a recent book on “conscious style” in writing and the importance of language for fostering inclusion in the hearing room.

Words do matter – and tribunals need to pay attention to the use of language in all of their communication with the parties and the public, especially in the hearing room. Adopting a conscious approach to language can go a long way to fostering an inclusive hearing.

There is much uncertainty politically but we can expect a federal election before the summer. I don’t write much about politics, but I thought it might be interesting to look at the federal parties’ policy platforms to see what implications there might be for the administration of civil and administrative justice.

Federal political parties’ policies

I’ve reviewed the policy proposals of those parties with an opportunity (realistic or not) to form the government after the upcoming election - the Liberals, the Conservatives, and the NDP. All of the policy documents are either silent or vague on many issues facing our administrative and civil justice systems - perhaps reflecting the fact that there are few votes in legal reforms. I’m not summarizing positions on criminal justice due to my lack of expertise in this area, but I anticipate that to be a more lively political debate during the upcoming election.

Policy documents passed by the party membership are, of course, not binding on a government and may not even be included in the election platform of each party. For example, the NDP document includes a commitment to carbon pricing, which is no longer official party policy. And the Conservative document includes proposals for reducing CBC funding, while the Conservatives are now talking about defunding the English CBC totally.

Supreme Court reforms

The Conservatives propose that nominees to the Supreme Court of Canada should be ratified by a free vote in Parliament, after receiving the approval of the justice committee of the House of Commons.

The NDP policy position is that all SCC judges should be bilingual.

The Liberals propose an expansion of the SCC to create three new seats to be permanently held by “Indigenous knowledge holders and Indigenous legal practitioners, similar to those seats held for Civil Law practitioners, to ultimately advance reconciliation and Nation-to-Nation relationships”.

Judicial independence and judicial review

The Conservatives confirm a commitment to judicial independence as “a vital safeguard of the freedom of Canadians against the exercise of arbitrary power by the state”. However, they see the courts as inferior to the legislature:

The Conservative Party believes that Parliament, rather than the courts, is the law-making body of Canada.

We support the establishment of a parliamentary judicial review committee to prepare an appropriate response to those court decisions that Parliament believes should be addressed through legislation.

The Conservative party re-affirms the legitimacy of the “entire” Charter of Rights and Freedoms but singles out the notwithstanding clause for special mention.

Dispute resolution proposals and backlogs

The Conservatives propose legislation to remove the authority of the Canadian Human Rights Commission and the Canadian Human Rights Tribunal to “regulate, receive, investigate or adjudicate” complaints related to section 13 of the Canadian Human Rights Act. This is a confusing proposal, because:

The NDP is proposing to make the Veterans Ombudsman fully independent so they can report “transparently and directly to Canadians”. They are also proposing more privacy rights for Canadians and “boosting the powers” of the Privacy Commissioner to make and enforce orders and levy fines and penalties.

The Conservatives propose that the government should work with unions and employers in areas of federal jurisdiction to develop dispute settlement mechanisms and encourage their use “to avoid or minimize disruption to services to Canadians”.

Both the Conservatives and the NDP have proposals relating to the immigration dispute resolution system and backlogs. The NDP promises that as a government it will “fix the system to get rid of the backlog” without any concrete proposals.

The Conservatives state that they:

believe the government should promote the integrity and fairness of our refugee determination system, and should ensure that decisions are made expeditiously and with respect for due process and the safety of Canadians.

It proposes:

• streamlining the process of validating refugee claims;

• implementing a fully merit-based process for Immigration and Refugee Board appointments; and

• developing a refugee appeals process that is fair and timely.

The NDP has also proposed an increase to federal funding of legal aid. It is not clear whether such an increase would be limited to criminal proceedings or would also extend to civil litigation.

Conclusion

It is clear that the backlog crisis in tribunals and the courts has not yet caught the attention of political parties at the federal level. As I’ve written about in the past, tribunal members are significantly restricted from commenting during elections about issues that might be deemed “political”. The judiciary is less constrained, but has not traditionally spoken forcefully on this issue. This means that lawyers and their associations must step up and stand up to advocate for more resources and reforms to dispute resolution processes to address backlogs and lengthy processes.

Case of note

Summary hearings and procedural fairness

In Erazo v. Ontario (Ministry of Community and Social Services), 2024 ONSC 7181, the Divisional Court found that a summary hearing dismissing an Application under the Ontario Human Rights Code was procedurally unfair. The Application to the Human Rights Tribunal of Ontario alleged discrimination in employment. The Tribunal issued a Case Assessment Direction (CAD) ordering a summary hearing to decide:

1. Whether the Tribunal should dismiss all or part of the Application because there was no reasonable prospect that all or some part of the Application would succeed; and

2. Whether to dismiss all or part of the Application because of delay.

The CAD stated that no witnesses were to be called at the summary hearing and that the decision would be based on materials already filed with the Tribunal (the Application). The CAD stated that the applicant would be expected to explain what evidence he had in his possession, or that may be reasonably available to him, and which he expected to be able to present at a hearing on the merits.

Rule 19A of the Tribunal’s Rules of Procedure and the Tribunal’s Practice Direction, provides for a summary process to determine whether an application should be dismissed in whole, or in part, if there is “no reasonable prospect” that the application will succeed. After a video conference hearing, the Tribunal member dismissed the Application, noting that the “test of no reasonable prospect of success is determined by assuming the Applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the Applicant.” The decision continued:

The purpose of a summary hearing is to determine whether the applicant is able to point to any information, which tends to support her belief that she has experienced discrimination or reprisal under the Code. The question the Tribunal must decide is whether there is likely to be any evidence, or any evidence that may be reasonably available to the Applicant to connect the unfair treatment allegedly experienced by the Applicant with the Code’s protections.

The member found that the applicant was not able to “point to any evidence to make the connection between the alleged discriminatory treatment and termination and his Code-enumerated grounds”.

In his request for reconsideration of the decision, the applicant stated that he been prevented by the member from making submissions about the evidence that might reasonably be available to him at a hearing on the merits and had been told that witness testimony would only be canvassed during a merits hearing. He submitted that, had he been permitted to make submissions on the availability of firsthand knowledge of material witnesses, the outcome would have been different.

The applicant’s request for reconsideration was dismissed.

The court found that the summary hearing process and the reconsideration were procedurally unfair:

[54] At para. 25 of the Decision, the Tribunal referenced the Tribunal’s Practice Direction on Summary Hearing Requests, which was discussed in Dabic v. Windsor Police Service, 2010 HRTO 1994. Applying those principles, on a summary hearing, in some cases, the issue to be determined was whether “assuming all the allegations in the application to be true, it has a reasonable prospect of success” (at para. 8). In other cases, the focus of the Tribunal is whether “there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated” (at para. 9).

[55] Applying Dabic, if the Applicant’s versions of events were assumed to be true, the Decision does not explain how it concluded that the Application had no reasonable prospect of success. Alternatively, if the focus had been on what the Applicant might have been able to prove based on the evidence he had, or would be reasonably have been available to him, denying Mr. Erazo the opportunity to make submissions about that evidence was not procedurally fair.

[56] The Decision also fails to address the substance of the evidence that Mr. Erazo did identify would be available to him at a merits hearing, concluding, simply, that “the applicant could not point to any evidence to make the connection between the alleged discriminatory treatment and termination and his Code-enumerated grounds” (at para. 39).

[57] Similarly, in the Reconsideration Decision, the Tribunal appeared to ignore the evidence set out in the Application concluding, at para. 19, that, although Mr. Erazo was provided with an opportunity to submit documents and witnesses, he failed to do so.

[58] The Reconsideration Decision also failed to address Mr. Erazo’s assertion that the hearing had been procedurally unfair.

The Application was returned to the Tribunal to be decided by a different member.

Links of interest

How Multitasking Drains Your Brain

Keeping ourselves alert and conscious, along with shifting, focusing, and sustaining attention, are the most energy-intensive things our brain can do. The high energy cost of cortical activity is why selective attention — focusing on one thing at a time — exists in the first place and why multitasking is an unaffordable fool’s errand.

Is Modern Life Ruining Our Powers of Concentration?

At the societal level, Mark supports “right to disconnect” laws to combat email overload, but says the cultural shift may have to come first. She suggests cultivating “meta-awareness” of our own attention – whether we have resources to burn, or need to refuel – and engagement with tech. “If you end up going to social media, keep yourself in the present by asking: ‘Am I still getting value out of being here?’” If not, and you’re feeling increasingly drained or, conversely, refreshed, “then leave,” Mark says. It is a more pragmatic – and even, dare I say, empowering – outlook on our technological future than many. “I am very optimistic that we can take control, and change the way things are,” agrees Mark. But the first step is accepting that our attention, like our time, is finite – and that we can choose how we spend it.

Static, non-blur backgrounds best to combat Zoom fatigue

Another factor that may help mitigate the negative consequences of video calls is the Zoom background chosen. When Dr Heng Zhang at Nanyang Technological University in Singapore and colleagues assessed the level of fatigue that people felt after videoconferencing, they found a virtual video background – such as a moving image of palm trees swaying and waves crashing on a beach – was linked to the highest levels of fatigue, followed by blurred backgrounds. Possibly this is because constantly reacting to new visual information – including when non-blurred items occasionally break through – forces the brain to work harder, Zhang says.

Those seeing a static virtual background experienced the least fatigue, especially if it was a nature-based image, which separate research suggests can have a calming effect.