The Litigator
The Litigator
AGM :: Affleck Greene McMurtry LLP
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Ontario Court of Appeal can order an appeal to be heard entirely in writing – even where a party objects

In a brief scheduling decision in 4352238 Canada Inc. v. SNC Lavalin Inc., Madame Justice Lois Roberts set a new precedent for the Court of Appeal for Ontario that the Court may order an appeal to be heard entirely in writing, even where one or more parties objects. In her words:

 “It is also beyond controversy that the COVID-19 pandemic has created extraordinary circumstances to which we must all adapt as best we can. Since March 17, 2020, there have been no in person appeals heard at the Court of Appeal. More than 100 scheduled appeals had to be adjourned. Through a series of Practice Directions, this court has endeavoured to address the tremendous disruption caused by the pandemic. As a result, appeals are being heard in writing or remotely until in person appeals can resume. Case management conferences are being held to manage and schedule them.

Accordingly, it is well within this Court’s jurisdiction to order that a civil appeal be heard in writing when the due administration of justice requires it. During these extraordinary times, judicial resources are strained. The ability to hear appeals remotely is not unlimited. Where appropriate, some appeals must be heard in writing in order to ensure that appeals continue to be heard in a timely and an orderly fashion.”

Many, of not most, litigators will candidly admit that most appeals are won or lost on the written record (i.e. the factums) and that the oral hearing itself rarely has a significant impact on the result. This decision implicitly recognizes that fact. More significantly, it is just one of many court decisions in Ontario and across Canada that respond to the current extraordinary circumstances by making changes that are likely to extend far beyond the end of of the COVID-19 pandemic – changes that, in many instances, will improve the efficiency of the litigation process and foster better access to justice for litigants.

Kenneth A. Dekker
Affleck Greene McMurtry LLP

Kenneth A. Dekker

Kenneth Dekker, a partner of the firm, is a successful trial and appellate lawyer who is valued by his clients as a resourceful and practical litigation counsel.

Over more than two decades, Ken has litigated noteworthy cases in a range of fields that include class action defence, securities and broker-dealer litigation and regulatory defence, corporate and shareholder disputes (including oppression and winding up cases), defamation, civil fraud litigation, disputes over contracts, injunctions, professional liability litigation, employment litigation and cross-border litigation issues.

Ken has appeared before all levels of courts in Ontario, including the Ontario Court of Justice, the Superior Court of Justice, the Divisional Court and the Court of Appeal for Ontario, as well as before the Supreme Court of Canada. Ken also represents and advises clients in regulatory matters before the Investment Industry Organization of Canada (IIROC), the Mutual Fund Dealers Association of Canada (MFDA) and the Ontario Securities Commission (OSC).

Ken has been ranked as Repeatedly Recommended for Securities Litigation by Lexpert, for Corporate and Commercial Litigation by Best Lawyers of Canada, and he has been given the highest available rating of AV, or pre-eminent, by his peers on Martindale-Hubbell.

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