In the early days of the COVID-19 pandemic, I blogged about Justice Myers’ decision in Arconti v. Smith where his Honour decided that an examination should proceed virtually. 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.
If there was a doubt as to whether Arconti was only applicable during the pandemic, Justice Myers has recently released his decision in WORSOFF v. MTCC 1168, 2021 ONSC 6493 which confirms that in person discoveries should no longer be the default.
In that case, the plaintiff wanted to examine the defendant’s representative in person; the defendant, however, wished for the examination to be virtual. Justice Myers decided the issue under subrule 1.08(2) of the Rules of Civil Procedure at a case conference. His Honour noted that decisions under this provision “should be available quickly and with little expense” to move matters forward. This case was certainly an example of an expeditious resolution: the case conference was requested on a Monday, heard on the Tuesday and His Honour’s decision was released on the Friday. His Honour found that the defendant’s representative would be examined remotely.
Certainly, the COVID-19 pandemic played a role in this decision; Justice Myers noted that “a preference for remoteness while the pandemic remains with us is reasonable all else being equal.” However, Justice Myers raised many other benefits of remote discoveries. Access to justice is promoted because litigants do not need to take a full day off work and spend time and money commuting. Similarly, there is a substantial cost saving for lawyers not needing to travel to an examination.
While there are issues with virtual examinations, there should be no presumption in favour of in person discoveries due to the significant access to justice improvement and cost savings of hearing these matters remotely – the decision should be made on what works in the particular circumstances of the case. While many of the same considerations would apply to trials and cross-examinations, Justice Myers noted that as discoveries are generally routine fair, he was not necessarily opining on whether other steps should be taken remotely.
Justice Myers acknowledged that parties and counsel may not be comfortable with new technology. But technology changes and the world must change with it. We are all naturally more comfortable with what we are used to. But comfort cannot trump efficiency, affordability and access to justice.