On March 17, 2020, Ontario declared a State of Emergency due to the COVID-19 pandemic and ushered in a new era of physical and social distancing rules. Individuals are required to maintain a minimum distance of two metres from any other person who is not a member of the same household. Gatherings of more than five people are banned unless they are members of a single household.
Since March 17, 2020, the Ontario Superior Court of Justice has suspended all regular operations, including hearings for civil matters except urgent and time-sensitive motions and applications and other limited matters such as consent motions in writing. Most of these hearings are conducted in writing, or remotely by telephone or video conference, due to physical and social distancing rules. In-person hearings would only be granted in very limited circumstances.
Although the Court may be closed for the time being, civil litigants and their counsel may still proceed with certain steps in the litigation while respecting physical and social distancing rules. These steps may include examinations for discovery, cross-examinations and mediation by way of telephone or video conference. Video conferencing platforms such as Zoom and Microsoft Teams have been popular in the civil litigation bar.
However, when the inevitable objection to video conferencing occurs, what is reasonable counsel supposed to do? Is this an urgent motion? Unlikely. In Toronto, the civil list is hearing chambers appointments and case conferences. If appropriate, a solution may be to send an email request for a case conference under R. 50.13(1) to Torontochambersappointments@ontario.ca
In a recent Ontario Superior Court of Justice decision, Arconti v. Smith, 2020 ONSC 2782, Justice Fred Meyers provided some guidance and insight into the circumstances where the Court will order the parties to participate in examinations for discovery by video conference, over the objections of one or more parties.
Background
After a lengthy hearing, the Ontario Securities Commission (OSC) found that the plaintiffs had committed securities fraud. The OSC decision is found here. The plaintiffs, naturally, blamed their lawyers for the fraud conviction and sued them for ineffective representation, negligence, breaches of duty and other causes of action. The plaintiffs alleged they would have settled the case if their lawyers had properly advised them of the risks in proceeding to the hearing.
The defendants brought a summary judgment motion to dismiss the claim that the plaintiffs did not fully understand the risks in rejecting settlement offers made by the OSC. The motions judge ruled that a mini-trial was required where the experts would be cross-examined in court, and the plaintiffs were entitled to an out-of-court examination for discovery of the second defendant. The examination for discovery was scheduled for May 6, 2020. The mini-trial was scheduled for May 27, 2020 although it will have to be rescheduled in the near term.
The Request for In-Person Examination
The plaintiffs refused to conduct the examination for discovery by video conference and requested a delay in the proceedings until the physical and social distancing rules were relaxed to permit an in-person examination. The plaintiffs objected to proceeding by video conference for the following reasons:
- They needed to be with their lawyer to assist with documents and facts during the examination.
- It is more difficult to assess the witness’s demeanour by video conference.
- The lack of physical presence in a neutral setting deprives the occasion of solemnity and a morally persuasive environment.
- The plaintiffs do not trust the defendants not to engage in sleight of hand to abuse the process.
The issue to be decided by Justice Meyers was: whether examination by video conference ought to be required in order to proceed with the summary judgment motion, or whether the matter should be delayed to accommodate the plaintiffs’ desire to conduct the examination in-person.
Rule 1.08 – Steps in Proceeding May Be Heard by Video Conference
For more than twenty years, the Rules of Civil Procedure have allowed the use of video conferencing in any step in a motion, application, trial and appeal. The Court may order that examinations take place by video conference even if one or more parties do not consent.
Under R. 1.08(5), in determining whether to permit or direct a video conference, the Court shall consider the following:
(a) The general principle that evidence and argument should be presented orally in open court;
(b) The importance of the evidence to the determination of the issues in the case;
(c) The effect of the telephone or video conference on the court’s ability to make findings, including determination about the credibility of witnesses;
(d) The importance in the circumstances of the case of observing the demeanour of a witness;
(e) Whether a party, witness or lawyer for a party is unable to attend because of infirmity, illness or any other reason;
(f) The balance of convenience between the party wishing the telephone or video conference and the party or parties opposing; and
(g) Any other relevant matter.
Justice Meyers referred to the recent Federal Court of Australia decision, Capic v. Ford Motor Company of Australia Limited, [2020] FCA 486, wherein a six week trial originally scheduled to commence during the pandemic was ordered to proceed remotely. Many of the issues raised by the plaintiffs in this case were addressed in the Federal Court of Australia decision. Justice Meyers addressed the R. 1.08(5) factors and the plaintiffs’ concerns as follows:
- Lawyers and clients do not need to be in the same room for an effective examination for discovery. They can use technology such as WhatsApp to privately communicate with each other during the examination while in different locations.
- The general principle that evidence must be provided in court does not apply to examinations for discovery. Similarly, discovery transcripts are not used to convey demeanour. Furthermore, the witness’s facial expressions may be, in fact, in much greater detail using video conferencing than in-person. Zoom video conferencing typically has the witness about one metre away whereas the witness would be at least a few metres across from a conference room table during an in-person examination.
- Although the Court agreed that the witness may not feel the same pressure in a video conference than in an in-person examination, and there may be less formality, it stated that most of these perceived short-comings are speculation and may not be realized in actual fact.
- While the Court was mindful of the potential for abuse of technology, it was not overly concerned with the witness, a lawyer, engaging in fraudulent and improper tactics. There was no evidence that the lawyer being examined would engage in such behaviour.
This is the Year 2020 – The Court Must Adapt to Technology
On April 6, 2020, the Advocates’ Society held a Virtual Fireside Chat with The Honourable Chief Justice Morawetz wherein His Honour made comments suggesting that the Court’s adoption of electronic filing and remote hearings to allow the Court to hear urgent matters should have taken place long ago and the Court could not go back to the paper-based system. Justice Meyers echoed those comments and stated the following:
In my view, the simplest answer to this issue is, “It’s 2020”. We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools anymore. We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.
If anything positive has come from the COVID-19 pandemic, it is the forced acceleration of the Court’s adoption of technology and transition to electronic filing and remote hearings. Indeed, we should not, and cannot, go back to our past ways.
This is the Year 2020 – Lawyers Must Adapt to Technology
Justice Meyers held that, at least in this case, the plaintiffs’ perceived concerns about conducting the examination by video conference were not justified by the prejudice in further delaying the summary judgment motion. The plaintiffs were ordered to conduct the examination by video conference. While change is inherently uncomfortable and concerning for everyone, lawyers must adapt to new technology and embrace change. Justice Meyers stated the following:
In my view, in 2020, use of readily available technology is part of the basic skillset required of civil litigators and courts. This is not new and, unlike the pandemic, did not arise on the sudden. However, the need for the court to operate during the pandemic has brought to the fore the availability of alternative processes and the imperative of technological competency. Efforts can and should be made to help people who remain uncomfortable to obtain any necessary training and education. Parties and counsel may require some delay to let one or both sides prepare to deal with unfamiliar surroundings.
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