I previously blogged about Chief Justice Morawetz’s new Notice to the Profession (effective December 29, 2020) that that all non-jury matters shall proceed virtually unless it is absolutely necessary for the matter to be conducted in person. This Notice to the Profession has now been applied in Flying E. Ranche Ltd. v. Attorney General of Canada, 2020 ONSC 8072 where the court refused to adjourn a complex trial, instead directing it proceed via Zoom.
The case at issue is a complex billion dollar class action against the government regarding mad cow disease. The trial was to begin next week. The defendants sought to adjourn the trial to September because, among other reasons, COVID-19 made it “impossible” for them to be ready. Justice Schabas disagreed. Aside from noting the problems with last-minute adjournments generally, his Honour specifically addressed the concerns that COVID-19 might necessitate an adjournment.
Citing Chief Justice Morawetz’s notice to the profession strongly encouraging the use of virtual proceedings wherever possible, Justice Schabas noted how the legal profession had adapted to preparing for and conducting virtual proceedings – even serious criminal trials. The defendants stated that some witnesses wanted to have counsel present when they testified, which could pose a safety risk. However, his Honour noted that virtual breakout rooms or other communication means (e.g. email, text and other chat functions) allowed for very effective communication. His Honour noted that while counsel for the defendants were in the same room (masked), the plaintiffs’ counsel all joined the hearing separately.
Justice Schabas noted that the pandemic has been with us since March 2020, and that the well-resourced parties would be in a good position to conduct a virtual trial (logistical issues could be streamlined with electronic filings). As such, while his Honour did grant a brief postponement of the start of the trial (to February 1 via Zoom), he did not agree to a lengthy adjournment.
In order to facilitate the trial, his Honour asked for an electronic copies of witness schedules (with anticipated timing, a “cast of characters”, a neutral non-binding chronology, and any authorities and statements of law.
As I blogged about in May, Justice Myers held that the pandemic and fear of conducting matters via Zoom could not be allowed to delay matters. Justice Schabas is acting in a similar manner by refusing to adjourn the trial and by providing directions to ensure the efficiency of the virtual trial. The courts are ensuring that the business of litigation continues in these unconventional times.