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No going back: Technology and court process | Gary Joseph

Wednesday, June 03, 2020 @ 8:52 AM | By Gary Joseph

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Gary Joseph
The COVID-19 shutdown of the court system was initially viewed as a temporary measure to address legitimate health concerns. Most lawyers expected a quick return to “normal” once the pandemic passed. Two things have now become quite apparent: the pandemic is not passing as quickly as we had hoped and, as importantly, there will be a new “normal.” Lawyers need to accept this and get onboard the technology train or they will be left behind.

Many judges have been eager to embrace technology, recognizing it as a way to keep cases moving forward and likely as a means to increase litigation efficiency and thus reduce the overall costs to the litigants. Justice Frederick Myers of the Ontario Superior Court of Justice was recently asked to consider a request to compel discovery through videoconference given the COVID-19 shutdown. Justice Myers recognized that there are issues and concerns with technology but stated “It’s 2020. We no longer record evidence using pen and quill. ... 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.” See his reasons in Arconti v. Smith 2020 ONSC 2782.

Justice Roger Lafreniere of the Federal Court of Canada has taken the technology and litigation efficiency theory a large step further. Having started a trial in pre-COVID days in the matter of Rovi Guides Inc. v. Videotron Ltd. 2020 FC 637, the court was forced by the pandemic crisis to close before the trial was completed. The court overruled objections by the defendant to the continuation of the trial remotely. The defendant’s objections related to the fact that the plaintiff’s witnesses had been heard in person. They argued procedural prejudice existed in hearing the defendant’s witnesses remotely. The defendant had also expressed security concerns with respect to Zoom. The court’s ruling on these issues can be found at Rovi Guides Inc. v. Videotron Ltd. 2020 FC 596. Justice Lafreniere stressed the court’s need to balance safety concerns with the need to maintain judicial operations.

Justice Lafreniere convened a trial management conference remotely to determine the protocol to govern the conduct of a remote hearing. The court’s decision flowing from the “protocol trial management conference” is both instructive and a must read for litigators. It is a “how to” guide to what I expect will become more commonplace if not the norm for trial process. No one knows how long the COVID-19 crisis will continue. Cases must move forward and trials are the inevitable result of unresolved matters. The court offers a 10-step process plus a witness guide. Topics discussed by the court include technology, document management, counsel preparation, witness preparation and testimony, documents to be put to witnesses, loss of connection, objections, open court principles and confidentiality, testing prior to trial and some general comments.

I suspect that other courts will quickly adopt many if not all of the very helpful suggestions offered. If we have lost the ability to have in-person trials (which may be the ultimate result of the pandemic), the protocol offered in the Rovi case may quickly become part of the court process, perhaps codified in practice directions or the rules of the court.

I personally welcome the innovative and forward-looking decisions of both Justices Myers and Lafreniere. I expect much more to come. Perhaps this terrible pandemic will usher in a more efficient forward-looking court system. For lawyers the opportunity exists to offer clients more practical cost saving approaches to litigation. This is a positive for the consuming public and the serving bar.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP, family law practitioners.

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