Due to the COVID-19 pandemic there is a risk that some litigation may stall. There are many skeptics to technological workarounds to conduct matters remotely. However, the perfect cannot be the enemy of the good and we cannot simply pause litigation until the pandemic is over.
In Arconti v. Smith, 2020 ONSC 2782, Justice Myers ordered that an upcoming examination in a proceeding must be conducted by videconference (if the plaintiffs still wished to examine). His Honour was very cognizant of the perceived and, possibly, real limitations of remote attendances. However, his Honour ultimately held that new technology should be utilized so as not to delay this matter. After all, as his Honour pithily noted, we no longer record evidence with a quill and ink; technology changes and our legal practices must change with it.
In this case, the defendants to a solicitors’ negligence claim brought a motion for summary judgment. A mini-trial where the parties’ experts could be cross-examined was scheduled for May 27. In advance of the mini-trial, the plaintiffs had the right to examine one of the defendants’ for discovery.
Due to the COVID-19 pandemic the mini-trial was adjourned to be rescheduled in the near term. However, the plaintiffs requested that the matter be delayed until the current physical distancing regime is lifted so that the examination for discovery could be conducted in person.
Justice Myers did not agree. First, his Honour determined that he he had the authority to order that any step in a proceeding take place via videoconference pursuant to subrule 1.08(3) of the Rules. Once Justice Myers determined that he could order the examination proceed via videoconference, he moved on to determine whether he should by addressing the concerns of four concerns of the plaintiffs:
1. the plaintiffs need to be with their counsel to assist with documents and facts during the examination
Justice Myers noted that Zoom allowed for “breakout rooms” in which counsel can meet privately with colleagues and clients. His Honour also cited an Australian case that noted the information could be conveyed via WhatsApp. While we all do not have the same comfort with these technologies as the “tried and true processes” (e.g. a client or junior counsel passing a note during an examination), we need to adapt.
2. it is more difficult to assess a witness’s demeanour remotely
Justice Myers made short work of this objection, noting that “discovery transcripts are used for admissions not for demeanour.” Interestingly enough, in the Australian case Justice Myers relied upon, the judge found that his ability to perceive the witness’ facial expressions was actually “much greater” via Zoom than it was in Court.
3. the lack of physical presence in a neutral setting deprives the occasion of solemnity and a morally persuasive environment
Justice Myers agreed with this criticism, noting that it appeared that there was some loss of solemnity (one is reminded of the Florida lawyer who was shirtless in his remote court appearance!). However, as we all grow more comfortable with new technology, it may be that we can find workarounds to this problem. In any event, this concern is not sufficient to further delay the mini-trial.
4. the plaintiffs do not trust the defendants not to engage in sleight of hand to abuse the process.
Justice Myers also agreed that there is the very real possibility of abuse of technology. For example, a person outside of the camera’s view could improperly prompt the witness. But there is also the possibility of fraud in an in-person examination (e.g. through a Bluetooth headset or hand signals). An “amorphous risk of abuse” cannot be a basis to decline to use relevant technology (especially here, where the witness is an officer of the court).
At the end of the day, technology is a tool. It is not perfect. But, Justice Myers ultimately concluded, the issue with technology is that it is uncomfortable. And discomfort is no reason for further delay. We are in a pandemic and must all move out of our comfort zones. That means embracing new technology and working together with opposing counsel to move matters forward. Aas Justice Myers noted in Wang v. 2426483 Ontario Limited, 2020 ONSC 2040, back and forth between counsel as to whether a matter is urgent pursuant to the notice to the profession is unhelpful to the court and clogs the court staff’s inboxes. Scheduling is an administrative matter and submissions as to whether a matter is urgent should only be made if the court asks.
The reality is that things will not be getting back to normal in the short term. We do not live in Manitoba which intends to reopen its courthouses for trials by the end of May (one can question the wisdom of whether or not this will be helpful in the fight against COVID-19). Normal operations of the Ontario Superior Court of Justice will remain suspended until July 6, 2020. The Ontario courts are working to further expand the scope of matters that will be heard virtually. Given that we are still months away from the earliest date when the Court will be operating normally, we all must take heed of Justice Myers’ decisions and work to try new technologies and work constructively with opposing counsel and the court system.