At the Federal Court, the E-trial Plan for Southwind v. Canada (2017 FC 906) is filed with the court registry. When I spoke to Justice Zinn, he told me that he made sure that happened because he realized that there were no precedents for e-trials and he wanted a written record to rely on later. In his next Aboriginal case, he did just that – he relied on the Southwind E-Trial Plan and improved on it.
Southwind was heard in Ottawa for 55 days from September 2016 to June 2017. The parties called 24 witnesses (all but two being experts) and entered 8,347 exhibits. It considered allegations that the Crown breached treaty rights and its fiduciary duty, and was subject to damages for losses incurred by a First Nation as a result of flooding on their reserve.
The parties and the court worked together to make the e-trial happen. The E-trial Plan describes which party is supplying the e-trial hardware, the general shape of the Joint Book of Documents (JBD), and trial procedures. Compare this to the E-trial Plan filed when Justice Brown ordered an e-trial: in that case, the E-Trial Plan was focussed on setting dates for parties to provide lists of documents and for a further case management conference.
Why it matters: This Federal Court E-Trial Plan is one of very few publically available e-trial plans, so it is a useful resource for a lawyer contemplating an e-trial. It suggests that e-trial plans should pay particular attention to the court’s concerns, such as who is responsible for the equipment and whether the clerk will be involved in e-trial procedures.
In Southwind, the parties used a third party provider to host the JBD. The Federal Court of Canada has been using a similar program from the same provider, REDI, since 2012 in the Competition Bureau.