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

Wednesday, December 01, 2021 @ 8:33 AM | By Alexander Evangelista and Bree Pierce


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Alexander Evangelista
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Bree Pierce
As we discussed in the first article of this two-part series, courts have increasingly emphasized how they will expect litigants and their counsel to adapt to virtual proceedings in order to safely move matters forward.

In addition to examinations for discovery, virtual trials are also becoming part of the “new normal” in litigation. In Real One Realty Inc. v. Jing Liu, 2020 ONSC 8190, Justice Jana Steele ordered that a 10-day trial proceed virtually, contrary to the plaintiff's wishes. Citing health concerns and the rising number of COVID-19 cases, the defendants requested that the trial proceed virtually. The plaintiffs, in contrast, argued that the trial should proceed in person due to the nature of the trial, potential credibility issues and the importance of viva voce testimony.

Citing reasoning from Justice Nye Perram of the Federal Court of Australia in Capic v Ford Motor Company of Australia Limited, [2020] FCA 1117, Justice Steele ordered that the trial proceed virtually:

I’m not happy ordering a virtual trial on a party against their will. However, we must find a way in these times to keep matters moving. Unfortunately for all of us, we don’t know how long these unusual times may last. We have to embrace technology in the current environment. This may mean doing things through technology that are outside our comfort zone. Through this pandemic we have all had to make significant changes, and technology has played a very significant role in this regard — businesses had to move many or all of their employees to work remotely, many universities are operating their classes online, and courts have continued to hear many matters through platforms such as “zoom”.

The risks  

Despite this movement in favour of virtual proceedings, the courts have not ignored the associated risks. For example, in Kaushal v. Vasudeva et al., 2021 ONSC 440, concerns with off-camera influence of a witness were a reality. The applicant had moved to strike out the evidence of the respondent on the basis of misconduct and abuse of process, claiming that the individual respondent’s family had been in the room with him while he was being examined. The applicant made this assertion after overhearing an unmuted conversation between the respondent’s wife, son and the interpreter. The respondent denied the accusation, but on examination, the interpreter who had been present during the respondent’s examination confirmed that the respondent's wife and son had been present and had prompted the respondent with hand and facial gestures.

Justice Cory Gilmore recalled some of the concerns that Justice Frederick Myers expressed in Arconti v. Smith, 2020 ONSC 2782:

It is clear that the use of virtual examinations will continue by this Court and will become the norm for the foreseeable future. Even when the pandemic is behind us, the comfort level we have all gained with this form of technology is such that it is likely to continue to be a strong option for parties, particularly where a witness is out of country, out of province or has mobility or health issues.

Given the inevitable future of virtual examinations in the legal system, it is up to the judiciary, as its gatekeepers, to ensure that this tool is not abused nor seen to undermine our globally admired legal system.

Justice Gilmore ultimately found that the respondent’s misconduct amounted to an abuse of process and, as such, his affidavit should be struck. She also noted that, had the application involved a request for the respondent’s counsel to be removed from the record, she would have given it serious consideration.

Concluding remarks

Over a year and a half into the COVID-19 pandemic (and its conclusion unfortunately uncertain), litigants and their counsel will need to incorporate remote technology into their litigation toolboxes and develop the technological competence that Justice Myers has espoused. Courts are increasingly unsympathetic to parties delaying litigation by attempting to fall back on technology concerns, even more so the longer the pandemic continues. Although the courts are aware of the possibility for abuse of these technologies, they have also made clear that they will seriously penalize those who commit such abuses.

The courts have left open the possibility for a return to in-person examinations and hearings once available. However, their comments also suggest that virtual proceedings will now be a permanent fixture in our justice system. The benefits of virtual proceedings, both in terms of protecting the health of the participants as well as increased access to justice, continue to outweigh the risks.

The technological status quo has changed and litigants will be expected to keep up with these changes. It seems that virtual litigation, at least in part, will be here to stay.

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

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 JD 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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