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Litigating like it’s 2021: Courts get into swing of virtual proceedings, part one

Tuesday, November 30, 2021 @ 10:00 AM | By Alexander Evangelista and Bree Pierce


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Alexander Evangelista
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Bree Pierce
With the COVID-19 pandemic ongoing and with no clear end in sight, Ontario courts are continuing to provide guidance on their expectations around litigating virtually. Specifically, since the pandemic began, courts have increasingly emphasized how they will expect litigants and their counsel to adapt to virtual proceedings in order to safely move matters forward. By extension, they are less sympathetic to parties who insist on proceeding in person. Here are some recent highlights on this topic.

Expectations

In Worsoff v. MTCC 1168, 2021 ONSC 6493, Justice Frederick Myers directed the parties to proceed to examinations for discovery virtually, despite the plaintiff's wishes to the contrary. The dispute arose when counsel for the plaintiff served a notice of examination, requiring the defendants to be examined for discovery in person. In contrast, counsel for the defendants served a notice of examination requiring the plaintiff to be examined for discovery virtually. The defendants objected to the plaintiff's request for an in-person attendance and the parties sought direction from the court at a case conference.

At the case conference, Justice Myers directed that the parties proceed to virtual examinations and noted that the preference for remoteness while the COVID-19 pandemic remains ongoing is reasonable. Although he acknowledged that there are shortcomings associated with virtual litigation, some changes can likely assist with access to justice. He also emphasized his expectation for litigators to keep up to speed on technological developments:

… Efficiency, affordability, and enhanced access to justice trump counsels’ comfort and presumptions every time. With the current pace of change, everyone has to keep learning technology. Counsel and the court alike have a duty of technological competency in my respectful view. Older judges and counsel may be behind younger counsel and the rest of society who use computers with greater regularity and sophistication than we do. But everyone in the civil litigation system in Ontario has had to learn to use the Civil Submissions Online portal and Caselines for example. Technological change affects everyone. Once upon a time, I had to learn how to use a Gestetner (Google it) and then a fax machine. I do not accept that in person is just “better”. It can be in some cases. But if counsel just prefers it because he or she is more comfortable with it, ought we to reject the printer because I liked my Gestetner (and Word Perfect for that matter)? The balance of convenience favours easier and more convenient processes with accompanying cost savings.

This is not the first time that Justice Myers has strongly endorsed virtual examinations. Last year in Arconti v. Smith, 2020 ONSC 2782, he similarly dealt with the question of whether a plaintiff could be required to conduct an examination for discovery virtually despite their request to delay the proceeding until it could be held in person. The question arose in a claim for negligence by two plaintiffs against their lawyers who had represented them in a hearing before the Ontario Securities Commission. The defendants moved for summary judgment against the plaintiffs to dismiss their claim that the defendants had failed to emphasize the substantial risk of being found liable for securities fraud. In advance of a mini trial scheduled for May 27, 2020, the plaintiffs indicated their intention to examine one of the defendants.

During a case conference, Justice Myers noted that the mini trial would not be proceeding on May 27, 2020, but shortly thereafter. The plaintiff's counsel objected to proceeding with virtual examinations and requested a further delay until in-person examinations were possible. They asserted that an in-person attendance was necessary as: (a) the plaintiffs needed to be with their counsel to assist with documents and facts; (b) it is more difficult to assess a witness' demeanour remotely; (c) the lack of physical presence “deprives the occasion of solemnity and a morally persuasive environment”; and (d) the plaintiffs were concerned that the defendants would engage in “sleight of hand to abuse the process.”

Justice Myers rejected those arguments and directed that, if the plaintiffs wished to examine the defendants, they would have to do so virtually:

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.

Justice Myers recognized a potential concern with abuse of technology (such as situations where someone off-camera in the room can coach a witness). However, he noted that, while one must be vigilant against the risk of fraud and abuse, the circumstances here had not yet reached a point where either could be assumed. He also recognized that physical presence can be important for creating a sense of solemnity and discomfort for the witness, but there were no due process concerns inherent in a videoconference format. He also saw no issue with the witness’ demeanour since as the examination transcripts were to be used for admissions, and not for an evaluation of demeanour. The only possible “unfairness” was counsel’s discomfort with using technology for presenting evidence or making arguments, but, according to Justice Myers, the use of readily available technology should now be part of civil litigators’ and the courts’ basic skillset.

This is the first of a two-part series. Read the second article: Litigating like it’s 2021: Courts get into swing of virtual proceedings, part two.

Alexander Evangelista is an associate in the litigation and dispute resolution group of Fogler, Rubinoff LLP. He maintains a broad commercial litigation practice, including experience with shareholder and partnership disputes and construction, bankruptcy and insolvency, real property, debtor-creditor and judicial review proceedings. He regularly appears before the Superior Court of Justice and the Commercial List in Toronto. Bree Pierce is a recent dual J.D. graduate from the University of Windsor and the University of Detroit Mercy. She is currently completing her articles with Fogler, Rubinoff LLP.

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