Virtual Examinations and the Consolidated Notice to the Profession Regarding the COVID-19 Pandemic

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Written By: Patrick Brown and Ryan Marinacci, Law Student

In light of the ongoing COVID-19 pandemic, the Ontario Superior Court of Justice temporarily suspended its regular operations effective March 17, 2020.  Several Notices to the Profession issued since then were consolidated into the single Notice to the Profession dated May 13, 2020.  This most recent Notice reaffirmed the Court’s call for cooperation among counsel and parties to engage in every effort to resolve matters.

The Notice provided examples of proceedings to be conducted virtually while regular court operations remained suspended, including:

  • Engaging in discoveries
  • Attending pre-trials, case conferences and hearings
  • Complying with procedural timelines
  • Producing documents
  • Responding to undertakings

In addition, the Notice further specified that where COVID-19 prevented lawyers and parties from fulfilling their obligations, they should be prepared to explain to the Court why COVID-19 rendered compliance not feasible.

This was tested in Arconti v Smith, 2020 ONSC 2782, where Justice Myers recently ordered examinations for discovery to proceed virtually over the plaintiffs’ objections.  The plaintiffs sought to delay the proceedings until social distancing ended in order to conduct in-person examinations, and objected to video examinations based on:

  • The need to assist counsel with documents during discovery
  • The difficulty assessing a witness’s demeanour remotely
  • The lack of solemnity and a morally persuasive environment
  • The concern for sleight of hand to abuse the process.

Justice Myers disagreed.  Putting it bluntly,

[19]        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.

According to Justice Myers, a minimum-level of technological proficiency was necessary for litigators and courts alike,

[33]        In my view, in 2020, use of readily available technology is part of the basic skill set 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.

As such, the possible shortcomings associated with conducting video examinations were outweighed by the cost of halting the proceedings,

[37]        In other words, just as all litigators have had to learn how to deal with juniors conveying information during an examination or argument in court, there are ways to do the same thing with technology. I note that the Zoom technology, that is currently among the brands being utilized in this court, includes “breakout rooms” in which counsel can meet privately with colleagues and clients. We are learning new ways to do things and they feel less “good” because we do not yet have the same comfort with the technology that we have with our tried and true processes.

Justice Myers did recognize the concern for abuse of technology during discoveries, including by using another person or computer monitor outside the field of view of the camera, or a Bluetooth earpiece.  However, these concerns did not warrant a blanket presumption that individuals would engage in such tactics given the first opportunity to do so.

Counsel’s discomfort due to a lack of familiarity with technology was not sufficient to justify suspending the proceedings until in-person discovery could be conducted,

[43]        … In my view, much of the hesitancy and concern that led to the conclusions that the process is “unsatisfactory” or raises “due process concerns” stems from our own unfamiliarity with the technology. As noted above, it is just a tool. It does not produce perfection. But neither is its use as horrible as it is uncomfortable.

In the result, the plaintiffs failed to convince Justice Myers that their concerns outweighed the cost of halting the litigation,

[44]        … The plaintiffs’ concerns, in the main, are soluble either by creative alternatives or by increased familiarity with the technology. I do not accept that anything will be lost that is not more than offset by the proportionality of proceeding efficiently and affordably.

WHY THIS MATTERS

In disputes that can span several years, it is imperative to keep matters moving forward as efficiently as possible.  This is evident in the Court’s willingness to encourage the use of virtual proceedings.  Delays are costly and can hinder of favourable outcomes.  Lack of familiarity or discomfort with technology, therefore, does not justify incurring additional delays when video technology is readily available to all parties.  McLeish Orlando continues to hold virtual mediations, pre-trials, and examinations for discovery and remains committed to providing exceptional legal service to our clients through these unprecedented times.

Image Credits: Yuriko Nakao / Getty Images

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COVID-19 UPDATE: McLeish Orlando remains fully operational during this unprecedented time. We can access all of our client files remotely and are able to provide opposing counsel and judicial officers with documents as needed.More Information Here
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