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Roger Lafrenière

Courts Zoom ahead with remote hearings due to pandemic, despite concerns of some lawyers, litigants

Thursday, May 14, 2020 @ 12:47 PM | By Cristin Schmitz

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Citing the importance of preserving access to justice and the rule of law during the COVID-19 pandemic, courts up to the Supreme Court of Canada are pushing ahead with remote virtual hearings — notwithstanding privacy, procedural fairness and other objections raised by counsel and litigants in some cases.

In recently ordering a defendant examined for discovery out-of-court by videoconference, over the objections of the plaintiffs who sought a postponement until an in-person examination can be conducted, Ontario Superior Court Justice Fred Myers addressed several arguments against remote hearings, including that parties need to be with their counsel to assist with documents and facts during the examination; it is more difficult to assess a witness’s demeanour remotely; the lack of physical presence in a neutral setting deprives the occasion of solemnity and a morally persuasive environment; and some parties are concerned that their opponents will engage in sleight of hand to abuse the process: Arconti v. Smith 2020 ONSC 2782.

“In my view, the simplest answer to this issue is, ‘It’s 2020.’ We no longer record evidence using quill and ink,” the judge observed in his May 4 ruling, pointing to Ontario’s Rules of Civil Procedure which have, for more than 20 years, reflected the acceptance of the use and perceived value of remote communication technology such that it can be ordered even where neither side asks for it or wants it.

“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,” the judge stressed.

“I respectfully do not find the presence of any ‘due process concerns’ inherent in the format of a video hearing. All parties have the same opportunity to participate and to be heard. All parties have the same ability to put all of the relevant evidence before the court and to challenge the evidence adduced by the other side,” he explained. “The only possible ‘unfairness’ is a lack of comfort by one counsel that he or she will be at their best in presenting evidence and making arguments using technology,” he continued. “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.”

Justice Myers concluded that 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.”

Eugene Meehan, Supreme Advocacy

Eugene Meehan of Ottawa’s Supreme Advocacy noted that lawyers are indeed rising to the challenges posed by the pandemic, pointing for example to the creation in Ontario of the E-Hearings Task Force.

On May 13 the task force published, Best Practices for Remote Hearings — an extensive guide endorsed by the Ontario Bar Association and The Advocates’ Society (among others) which features practical tools for counsel, including checklists and technology information.

“The legal profession has undergone a generational change to embrace legal tech in a month,” Meehan observed.

For its part, the judiciary’s embrace of remote virtual hearings goes right to the top, with the Supreme Court of Canada choosing Zoom, the popular web-based videoconferencing system, for its hearings in June, in part because Zoom supports simultaneous interpretation, and can be integrated into the audiovisual system of the Ottawa courtroom to enable webcasting.

Renée Thériault, Supreme Court’s executive legal officer

“The court is committed to working with parties and justice stakeholders to ensure pending cases proceed in a timely manner, so that we can continue to deliver the justice that is our duty to Canadians,” the Supreme Court’s executive legal officer Renée Thériault told The Lawyer’s Daily.

She said the court has not received any objections from counsel or litigants to proceeding virtually during the pandemic.

In addition to Zoom, the court also considered using Microsoft Teams, WebEx, Vidyo and Skype. “Security is a foremost consideration as we pursue our testing and we are satisfied with the security configuration of the Zoom platform,” Thériault said. “The deciding factor was interpretation. Our interpreters expressed a preference for Zoom, and from our analysis it currently offers the best option for supporting simultaneous interpretation,” she explained. “It allows the user to select floor [sound], English and French, and allows users to toggle between these selections. None of the other platforms offer that.”

The court has scheduled four remote hearings from June 9-12, beginning with Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corporation.

Thériault said the court is still working out what the hearing will actually look like (e.g. whether counsel will be able to see all the judges’ faces at once or only when a judge is speaking). “This is all part of our ongoing testing, and we don’t have the answers yet.”

The top court has also advised parties that, in an effort to ensure stable audio communication from all participants during argument, it is considering the feasibility of sending to all counsel presenting oral arguments, headsets with microphones that meet the technical requirements suitable for simultaneous interpretation.

Meanwhile the Federal Court has rescheduled about 40 hearings to proceed via Zoom, with more virtual hearings to come. As a result, the national trial court plans to issue guidelines soon for lawyers, litigants and the public that offer policy guidance, as well as set out the procedure the court wants to be followed, for remote hearings.

Justice Roger Lafrenière

A number of litigants and counsel are resisting the Canadian courts’ embrace of Zoom, even though the video-chat platform recently upgraded its encryption to prevent security breaches (including uninvited interruptions of meetings by “Zoombombers” conveying pornographic or hate-filled messages).

But with mounting backlogs and concerns about preserving the public’s access to justice, courts seem to have adopted the credo, “the show must go on” in most cases.

Taking a leaf from a recent Australian court decision, Federal Court Justice Roger Lafrenière recently rejected privacy and procedural fairness objections to a Zoom hearing that were raised by a defendant in a high-stakes patent infringement case: Rovi Guides Inc. v. Videotron Ltd. 2020 FC 596.

Not only was the defendant worried about the security of its confidential information, it argued it was disadvantaged because the plaintiff was able to present its fact witnesses in person before the lengthy trial was interrupted by the COVID-19 pandemic, while the defendant would have to present its fact witnesses remotely if the trial resumes virtually.

“I can do no better than repeat the words of Mr. Justice Nye Perram of the Federal Court of Australia in Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 at paragraph 25,” concluded Justice Lafrenière in his May 6 order and reasons for scheduling a date resuming the trial remotely. “ ‘We have entered a period in which much that is around us is and is going to continue to be unsatisfactory,’ ” he quoted. “ ‘I think we must try our best to make this trial work. If it becomes unworkable then it can be adjourned, but we must at least try.’ ”

Justice Lafrenière acknowledged the defendant’s concern about the choice of Zoom for the remote hearing. “In the past few months, a myriad of issues have been identified with the use of Zoom, especially from a privacy and security perspective,” he said. “While Zoom is anything but a perfect platform, the vast majority of the issues have been fixed or patched by Zoom.”

Justice Lafrenière noted the Federal Court’s technology committee continues to monitor the security of Zoom and other virtual conferencing platforms to ensure that the best technology will be used for remote hearings in the future.

He observed that “until a vaccine to prevent COVID-19 is widely available in Canada, or until public health officials lift stay-at-home orders and relax restrictions so as to allow people to travel safely, assemble and return to work, hearings of the Federal Court will have to be conducted remotely using the appropriate, available technology. Given that Court facilities will remain closed for the foreseeable future, Videotron’s objection must be rejected since it would result in delaying the trial indefinitely.”

A similar sentiment that remote hearings during the pandemic are necessary to maintain the rule of law was expressed April 29 by Ontario Superior Court Justice Darla Wilson, who is case managing five actions arising from a motor vehicle accident that involves insurance issues and claims for personal injuries: Sivarajah v. Andrikopoulos 2020 ONSC 2667.

In declining the request of the defendant to postpone a long-scheduled mediation — one that the court ordered to proceed via Zoom — until the defendant was able to get an in-person vocational assessment rather than a virtual vocational assessment, Justice Wilson observed “It strikes me as preferable to have some opinion on the vocational issue for use at the mediation. Of course, if the defendant Enterprise chooses not to have such a report, that is their decision, but it is not a reason to cancel a mediation that has been scheduled for many months.”

The judge also called it “understandable” that the defendant wanted to attend the mediation in person instead of by Zoom.

“However, it is unclear at the present time when mediations and other conferences associated with litigation will resume in person,” she observed. “As my colleague Justice Corbett observed in Association of Professional Engineers v. Rew 2020 ONSC 2589, ‘The court is faced with an unprecedented challenge maintaining the institutions essential for the continuation of the Rule of Law in the face of the COVID-19 crisis, and recourse to electronic hearings is a key aspect of the court’s response.’ ”

Justice Wilson held “for the same reasons, proceeding with examinations for discovery and mediations virtually is necessary at this moment in time.”

Photo of Justice Roger Lafrenière by Balfour

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