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History made in Ontario courts: More thoughts on virtual proceedings

Monday, May 04, 2020 @ 2:00 PM | By Barry Leon


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Barry Leon
In my first two articles in this series on Ontario’s virtual proceedings for the Nation Rise v. Minister of the Environment judicial review, I talked of observations and lessons learned from this latest use of technology. Here are some final thoughts.

“When the pandemic necessitated an immediate solution to hearing urgent matters virtually, the courts found a way to make it work and so did counsel,” concluded Ewa Krajewska, a BLG partner who was counsel on the virtual proceedings in Sprague (Litigation guardian of) v. Ontario (Minister of Health) 2020 ONSC 2335. “Everyone worked co-operatively in the interest of having the matters heard even though the method is new and requires us to adapt and learn new skills.”

Eric Gillespie of Eric K. Gillespie Professional Corporation in Toronto added that “comparing virtual hearings to in-person hearings is perhaps a bit of an apples and oranges comparison. One is not necessarily better, or worse than the other, simply different.”

Helping ‘old dogs’ with the transition

Lauren Wihak, of Saskatchewan’s McDougall Gauley, made an important point on Twitter about the need for lawyers who are comfortable with technology to help those who are not comfortable to transition, saying that “a lot of the push back here in Saskatchewan to more electronic legal work has come from self-described ‘old dogs.’ I don’t think we’re going back, so they’ll have to come along. But those of us more embracing of tech need to help them transition.”

Remember you are in court

With some counsel in virtual proceedings, there may be a bit too much informality and insufficient court decorum.

To be clear, I did not notice that at all in Nation Rise.

Counsel doing a virtual proceeding should remember that virtual court proceedings are court proceedings, despite the absence of gowns (at least for now in Ontario courts), standing and bowing. The safe course for counsel is to err on the side of ordinary court formality and decorum, and counsel should dress in appropriate business attire. Likewise, in virtual arbitration proceedings, counsel should err on the side of ordinary arbitration formality and decorum, even though ordinarily arbitration has less formality than court.

It is particularly important with virtual court proceedings with a large public gallery, extending into the hundreds (when they are available on YouTube), that the proceedings have the formality and decorum that exists a physical courtroom.

Remember the parties

For your client, and for all the parties, their virtual hearing (whether in court proceedings or in arbitration) is their “day in court.” Whether they are in virtual or physical facilities, their rights are being heard and determined.

As we move rapidly beyond the “teething phase” of virtual proceedings, it is incumbent on judges and counsel to learn how to do virtual proceedings effectively and be property equipped to do so.

It is increasingly important that the technology service and support free up judges, arbitrators and counsel from pivoting back and forth between the case and the technology — they need to be able to focus on doing their respective jobs and not on the technology. That is the magic of engaging strong, experienced, independent and professional virtual proceedings support and services.

As the registrar of a court outside Canada said to me, “Can you imagine how a party would feel if his/her lawyer or the judge/arbitrator is fussing with the technology and is not focused on the case?”

Judges’ and counsels’ technology hardware

If virtual proceedings will become a longer term part of the judicial process — which I believe may well be a lasting effect of the COVID-19 pandemic — judges and counsel will need to be equipped with appropriate hardware, including large screens and second screens.

Arbitration and courts working together

Another point worth noting is that the COVID-19 pandemic provided an opportunity for everyone involved in dispute resolution to learn from and assist each other.

Divisional Court hearings are happening, as are arbitration hearings in Canada and internationally, and soon likely court proceedings in other jurisdictions. Kimberley Stewart, founder & CEO of Arbitration Place, who conceived of Arbitration Place Virtual, said “We are honoured and proud to be able to assist the courts to carry on the public justice system in this most difficult period in Canadian and world history.”

Sarah Mohamed, the virtual proceeding specialist who has been the focal point for the Divisional Court hearings referenced in this article and several others following Nation Rise added, “the judiciary and counsel should be applauded for their quick and tireless efforts to move to a virtual model, and to ensure that access to justice can continue during this challenging time. Fortunately, the legal community does not need to manage this transition alone, as technology-based service providers provide the expertise required to facilitate all kinds of legal proceedings in a virtual format. Counsel should investigate these services to understand how their matters can continue to be heard during the COVID-19 disruption, and to allow counsel and adjudicators, whether judges or arbitrators, to focus their valuable time on offering their legal expertise, rather than setting up and managing technology.”

Conclusion

I have been less optimistic than many that the world will return to “normal” as soon as many were predicting. Early spring conferences were being rescheduled to late spring, early summer or early fall. Then some were being rescheduled to later in the year or to early 2021. Gradually some were being cancelled and others moved to a virtual format.

Thinking my perspectives are realistic — or conservative — as I was about to write this conclusion, I saw a statement issued by a leading Canadian medical services provider that hit me between the eyes. It is a stark reality check, and a powerful reason why we mean to expand and master virtual proceedings for courts, arbitrations and mediations, as well as start to think even further “out of our traditional dispute resolution box.”

Unfortunately, our lives will not be returning to normal any time soon. I remain optimistic that our government will be in a position to start relaxing some of the containment measures by summer (reopening some non-essential services,) but it maybe years before society relaxes and returns to the same degree of interconnectedness that we’ve all enjoyed.

I end where I began, with the message, to paraphrase Charles Darwin: those that will survive this global pandemic will be those who best adapt to change.

This is the third of a three-part series. Read part one: History made in Ontario courts: Virtual proceedings on YouTube. Part two: History made in Ontario courts: Counsel’s 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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