Page - 159 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

159Ensuring Executive and Legislative Accountability in a Pandemic The Federal Court of Canada initially agreed to hear “urgent” or “exceptional” matters, as well as other cases “by request of a party.” It has since added any case that can be decided in writing, as well as matters “at the Court’s initiative,” noting that, “[t]he Court has identi- fied a substantial number of matters that are ready to proceed, or are close to being ready to proceed.”90 The scope of the former category is potentially vast, given that the Court’s most recent Practice Direction “encourages parties to consent to proceed in writing with respect to any matter that would have normally been determined in person, by teleconference or videoconference.” In many respects, courts at all levels have done a remarkable job of adapting to the new environment. A largely paper-based justice system has been moved online in a matter of weeks in the midst of a pandemic.91 This has been easier for appeal courts than for trial courts, which still face significant challenges in figuring out how to hear mat- ters involving live witnesses whose credibility must be assessed. But the Superior Court is no doubt also correct in suggesting that it is a matter of considerable urgency that the courts continue to increase their capacity to hear matters, whether online or in person. This is particularly true as it relates to challenges to executive overreach, unconstitutional legislation, and government inaction. This includes cases that challenge the lawfulness of the executive and the legisla- ture’s response to COVID-19 and cases that challenge overreach or inaction unrelated to the pandemic.92 While the former cases argu- ably fall within the scope of the Superior Court’s current Practice Direction, the latter may not unless the court exercises its discretion to allow such matters to proceed. The Federal Court’s Practice Direction 90. “Updated Practice Direction and Order (COVID-19)” (4 April 2020), online (pdf): Federal Court of Canada <www.fct-cf.gc.ca/content/assets/pdf/base/FINAL%20 -%20EN%20Covid-19%20Amended%20Practice%20Direction%20Order. pdf>; “Practice Direction and Order (COVID-19): Update #2 (29 April 2020)” (29 April 2020), online (pdf): Federal Court of Canada <www.fct-cf.gc.ca/Content/ assets/pdf/base/Covid-19-Updated-Practice-Direction-Order-2-April-29-2020- FINAL-E.pdf>. 91. Aedan Helmer, “‘There is no Going Back’: How COVID-19 Forced Courts into the Digital Age”, Ottawa  Citizen (16 May 2020), online: <ottawacitizen.com/news/ local-news/there-is-no-going-back-how-covid-19-forced-courts-into-the-digital- age>; Paola Loriggio & Liam Casey, “COVID-19 Pandemic Forces Ontario Justice System ‘Stuck in the 1970s’ to Modernize”, CP24 (29 April 2020), online: <www. cp24.com/news/covid-19-pandemic-forces-ontario-justice-system-stuck-in-the- 1970s-to-modernize-1.4917915>. 92. See Daly, this volume, Chapter B-6.