June 19, 2017

Q&A with The Hon. Frank J.C. Newbould, K.C.

With The Hon. Frank J.C. Newbould K.C. joining TGF as Counsel, we posed five questions to him that we thought might be of interest to readers of our Top Line Newsletter.  Here’s the result of that Q&A:

What are some of the biggest changes you’ve witnessed in your ten years on the bench?

Throughout my time on the bench, the greatest change I found is the use of technology by lawyers and some judges in the courtroom.  We’ve come pretty far in ten years, but there are still many more ways in which it can be used that will reduce the amount of paper and streamline the way in which applications, motions and trials proceed.  There are also examples that we see in other jurisdictions that we can learn from, such as full electronic filing of all court documents in U.S. bankruptcy proceedings (rather than the manual or paper filing of court materials), and the widespread use of Court Call in the U.S.  The Commercial Court has recently introduced Court Call in Canada, and I’m a big supporter of that.

How has technology changed the way in which counsel, judges and the Courts operate?  Where do you see it going?

Technology reduces the use of paper which would otherwise require counsel and the Court to have to handle large heavy briefs in order to find documents or references during the course of a proceeding.  It certainly helps in the drafting of judgments and Reasons, since the judge can copy portions of a party’s factum or evidence from an affidavit electronically when a USB key is filed, or portions of cases through hyperlinks to those cases.  It’s partly a generational thing with lawyers, changing the way we do things, and I see it continuing and likely being the predominant way court hearings take place in the future.  Production of documents by parties is now done electronically and there is no reason why the use of electronic documents in court is not the norm in other respects.

What do you see as the greatest strengths of the Canadian restructuring regime, compared to other jurisdictions?

I think that the greatest strength of our restructuring regime is that our insolvency legislation is less technical and codified than (for example) the US Bankruptcy Code, and permits more judicial discretion and flexibility in reaching a result that suits the facts of each case. The sale of assets is a good example of this strength.  Also the role of the Monitor in a CCAA proceeding is novel to Canada and is very assistive to the Canadian insolvency regime.  I know from speaking to US bankruptcy judges that they would like these aspects to be part of their regime.

What’s your favourite golf course that you’ve ever played?

Royal Portrush in Northern Ireland, where I am this morning (June 23) and where I have played the last three days.

What book did you read on your time off?

“Just Mercy” by Bryan Stevenson.