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History made in Ontario courts: Virtual proceedings on YouTube

Thursday, April 30, 2020 @ 9:55 AM | By Barry Leon

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Barry Leon
“It is not the strongest that survives, nor the most intelligent,” said Charles Darwin, “but the one that best adapts to change.”

“Judicial review is not a contact sport,” said Ewa Krajewska, a BLG partner who was a counsel on Ontario’s first two virtual judicial review applications. She added: “Proceedings can be conducted virtually with the right adjustments and platform and a good moderator. We can adapt. We can litigate and arbitrate in these new circumstances.”

In the weeks since the COVID-19 global pandemic closed Ontario’s physical court facilities, under the leadership of Ontario Superior Court Chief Justice Geoffrey Morawetz, history was made as virtual proceedings began to come to the fore.

On April 9, a Divisional Court panel heard the court’s first virtual judicial review application, Sprague (Litigation guardian of) v. Ontario (Minister of Health) 2020 ONSC 2335.

The following week, at 10 a.m. on April 17, Justices Katherine Swinton, Harriet Sachs and Lise Favreau began the full-day, four-party Nation Rise v. Minister of the Environment judicial review, in a truly open court with a “public gallery,” hosted on a private YouTube channel. While people came and went from the “public gallery,” at various times over 200 members of the public watched.

Nation Rise provides an excellent illustration of how virtual proceedings can work and an opportunity to learn how they can be done effectively. It also generated insights and tips from counsel involved for others participating in virtual proceedings, whether as counsel or as judge or arbitrator.

The Nation Rise hearing proceeded almost flawlessly, demonstrating marvellously how virtual proceedings can be conducted effectively with planning, preparation and some innovation by the judges and counsel and strong independent professional hearing technical support and services, which Arbitration Place Virtual provided for the court, including its private YouTube channel.

What was different?

At one level, not much was different from a Divisional Court hearing in a physical courtroom. However, as I watched the proceeding from the YouTube public gallery, I noted some differences:

  • Virtual proceeding specialist. Court sessions were opened and closed by Sarah Mohamed, a virtual proceeding specialist with Arbitration Place Virtual (who is both a legal technologist and a lawyer). She also ushered the judges and counsel to their separate private meeting rooms during breaks, recalled them when needed and assisted the judges if a technical adjustment was needed.
  • Clear view from the public gallery. As a member of the public, I constantly had a clear view of each of the three judges and the counsel making submissions.
  • Largely an ordinary hearing. The hearing ran in the ordinary way, apart from a few initial explanatory words by Justice Swinton outlining how the virtual hearing would work (particularly what viewers in the public gallery should expect; that it was “not a TV production” so judges would be working and taking notes, not looking into the camera; and that counsel should give clear page references because the judges generally would not be turning up documents themselves). Also, she cautioned that there is a statutory prohibition on recording or photographing court proceedings. That caution also appeared on the YouTube page.
  • Judges and counsel focused on their roles, not the tech. It was evident throughout that the judges and counsel were focused on hearing and presenting the case, not on the technology. The technology was handled behind the scenes by the virtual proceeding specialist.
  • Paperless hearing. One noticeable difference was not because the hearing was virtual but because it was paperless. The court and counsel worked with electronic copies of the documents. Hence the request noted above from Justice Swinton for counsel to give clear page references seems particularly important. Each counsel team had a slightly different approach to presenting documents to the court on a “shared screen.” But in all cases, the judges would have had a clear view of documents on the screen, as did those in the public gallery. More on this below.
  • Judges’ questions. Interjections by the judges with questions worked as well, perhaps better than in a physical courtroom. Judges and counsel did not appear to have any trouble hearing each other (which is not always the case in a physical courtroom).
  • Perspectives of judges and counsel. At different points, I tried to put myself in the position of counsel (which I was for many years), and then in the position of a judge hearing the matter (I was the Commercial Court judge in British Virgin Islands for three years, and both before and since I sit as an arbitrator). In doing that, I felt that I could see faces more clearly than in a physical courtroom, and depending on the courtroom, sometimes a lot more clearly. Also, I could hear more clearly. One counsel early on was not being heard clearly — he made a quick adjustment to using ear buds, and presto, problem solved. Another counsel wore a headset throughout. Most participants (including the judges) appeared to be using their computer’s microphone and speakers.
  • Seeing everything was easy. It was easy to move one’s eyes a bit to watch the judges, the counsel making submissions and documents on the shared screen — it was easier than in a physical courtroom where the documents are not seen adjacent to the judges and counsel, and where counsel not making submissions cannot really see counsel who is making submissions —  certainly not “face on.”
  • No robes. Neither judges nor counsel were robed, as accessing robes that were in offices were considered inappropriate in the current public health situation. I stopped noticing the absence of robes instantly.
  • Camera positioning, lighting and backgrounds. Some participants had somewhat better setups than others, in terms of camera positioning, lighting and backgrounds. One judge and one or two counsel could have improved their lighting. One judge and some counsel could have improved their camera angles, distance and position on the screens (e.g.: one appeared too low on the screen). Some participants would have been better to have “cleaner” backgrounds. While advice on camera positioning and lighting was provided as part of the Arbitration Place Virtual rehearsals, the challenges of work-from-home environments mean counsel may want to set up a proper home layout for future virtual hearings. (I have been inching in that direction, as have some other arbitrators who are doing work virtually.) Again, I found that I ceased to notice those things fairly quickly, and none of them was a distraction from my perspective.
  • Eye contact. To make eye contact with others, one needs to look at the camera, whether on a computer or free-standing. Not all counsel did that.
  • Sitting or standing. One counsel made submissions standing, although that was not obvious, and everything had been adjusted accordingly.

This is the first of a three-part series. Read Part two: History made in Ontario courts: Counsel’s thoughts on virtual proceedings; part three: History made in Ontario courts: More thoughts on virtual proceedings

The Honourable Barry Leon is an independent arbitrator and mediator with Arbitration Place, Arbitrators@33BedfordRow (London) and Caribbean Arbitrators. He was presiding judge of BVI’s Commercial Court (2015-2018) and chair of ICC Canada’s Arbitration Committee.

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