Considering a vaccination policy at the Federal Court

In a letter to Chief Justice Paul Crampton, the Federal Courts Bench and Bar Liaison Committee of the Canadian Bar Association outlines factors the Federal Court should take into account in considering a vaccination policy for in-person hearings.

This recommendation comes after the Committee canvassed Section executives, asking two questions:

The Federal Court is contemplating a protocol requiring proof of vaccination for anyone attending an in-person hearing. Should they do so? What factors should the Federal Court consider in deciding whether to establish a protocol requiring participants in in-person hearings to show proof of vaccination? What are the advantages and disadvantages of such a protocol?

Are there specific types of hearing that should be in-person, or do remote hearings generally comply with court requirements? Why?

The discussions considered the interaction of access to justice and public safety, the importance of the open courts principle, public confidence in the justice system, Court scheduling, and administrative burden on the Court.

“In general,” the letter reads, “CBA members who participated in the discussions do not oppose any specific type of restriction imposed on in-person hearings.” However, the consensus is that all the parties should appear in the same format. This means that if one party is unvaccinated, then the hearing should be held virtually for all parties.

Possible alternatives include obtaining consent from all parties that only one would attend in person while the others attend virtually or require that in-person hearings be conducted with masks, physical distancing and negative rapid antigen tests.

Recognizing that a positive result on a rapid test would mean the postponing or adjourning of a hearing, the Committee concludes that a vaccination policy is favoured for in-person hearings.

Consistency and access to justice

The letter states that “some CBA members suggest that the Federal Court adopt the procedures applied in the provincial or territorial superior court of the jurisdiction where it sits.” This would make it simpler and more consistent for residents of that jurisdictions, but it would lead to asymmetrical Federal Court restrictions across Canada. Another possibility is for the Federal Court to adopt whatever provincial or territorial measures are deemed the most restrictive and apply those across the country. Either way, the Committee recognizes those restrictions would likely change over time.

Another concern has to do with access to justice for people who are not vaccinated. “A vaccination requirement imposed by the Federal Court would particularly affect hearings that proceed on an expedited or urgent basis if the unvaccinated person cannot comply in time for the hearing,” the Committee explains.

“In those cases, individuals who are unvaccinated due to medical, religious or other reasons should not be deprived of an in-person hearing. In those circumstances, accommodation can be offered with proof of a negative COVID-19 test.” Or the Court could offer the option of having the hearing be virtual to unvaccinated persons.

Generally speaking, the CBA members who took part in this consultation “do not believe that a vaccination requirement would breach the open courts principle, even if most members prefer in-person hearings in litigation matters where credibility issues are before the Court.”