The Law Must Go On

Legal Updates on Remote Legal Proceedings: A Virtual Reality


As COVID-19 continues to impact everyday life, delays and cancellations are commonplace. Yet amidst the disruptions, we are also seeing an uptick in innovation and adaptation. The is certainly true with respect to legal proceedings and the court systems.

COVID-19 has resulted in unprecedented, Canada-wide closures of courts. In Ontario, the Superior Courts of Justice stopped in-person hearings for non-urgent matters on March 17, 2020. Currently, they are not slated to resume until at least July 6, 2020.

Despite these closures, legal proceedings have been continuing. One way the Courts and alternative dispute resolution providers (for example, mediators and arbitrators) have adjusted to the COVID-19 shutdowns has been to conduct proceedings virtually.

The use of video or teleconferencing for legal proceedings is not new. In fact, the Ontario Rules of Civil Procedure have provided for videoconferencing since 1999. Yet until very recently, the use of such tools were the exception rather than the norm.

The onset of COVID-19 has resulted in a drastic increase in the use of such technology in legal disputes. However, this rapid shift to remote proceedings has not been without protest. In two recent Ontario cases, litigants objected to the use of videoconferencing in lieu of face-to-face proceedings. In both cases, the Court ordered the parties to proceed by videoconference despite the objections.

Association of Professional Engineers v. Rew. 2020 ONSC 2589 ("Association of Professional Engineers"):

On April 24, 2020, the Ontario Divisional Court published its decision in Association of Professional Engineers. In this case, the Respondent objected to the application for judicial review being heard via Zoom. The Respondent argued that the "dynamic of a live hearing may be lost in video conference".

The Court rejected this argument.

In reaching its decision, the Court emphasized that the consent of the parties is not required for the Court to order a hearing by conference. It noted that "something will be lost if court business does not continue". Additionally, nothing about the case made it particularly unsuited for a remote hearing, and there had already been lengthy delay in bringing the matter before the court.

Arconti v. Smith, 2020 ONSC 2782 ("Arconti"):

On May 4, 2020, the Ontario Superior Court of Justice released its decision in Arconti. This decision dealt with whether a plaintiff was required to conduct an out-of-court examination by videoconference. The Plaintiffs argued that examining the Defendant via videoconference would be prejudicial.

The Court’s reply? "It’s 2020".

In rejecting the Plaintiffs’ objections, the Court emphasized that the pandemic has "brought to the fore the availability of alternative processes". While noting that technology is not a perfect solution, the benefit of litigation not being "stopped in its tracks" outweighs the risks associated with not being physically present.

Interestingly, the Court considered the April 14, 2020 judgement in Miller v. FSD Pharma Inc, 2020 ONSC 2253 ("Miller"). In Miller a class action hearing was adjourned due to COVID-19, rather than held virtually, due to concerns over due process and the lack of "discomfort" in virtual hearings. In Arconti, both of those concerns were rejected. It was held there was no inherent due process issues associated with videoconferencing. The lack of physical discomfort was not sufficient to justify an adjournment.

The Reality of Remote Hearings:

These recent decisions make one thing clear: the law must go on. For the duration of the pandemic, at least, litigants should be ready to proceed with their disputes virtually.

Like most proceedings, preparation is key. In advance of the remote hearing, litigants should take the following steps:

  • Find a quiet place with a neutral background, where interruptions will be minimal.
  • Ensure there is a strong and secure internet connection.
  • Download and install software, and test for any issues.
  • Have back up means of communication (e.g. phone, tablet, or second computer) ready in case any technical issues arise during the hearing.
  • Plan how to communicate with legal counsel privately during the hearing. This may be done through the videoconference software itself, or through the use of email, text message, etc.
  • Ensure that all relevant documents are easily accessible while participating in the videoconference. This may require printing the material in advance or using a separate screen to view documents.

Other preparatory steps may be important depending on the unique nature of the proceeding. Helpfully, the Ontario Bar Association has released detailed guidance outlining what to expect at remote hearings and how to make the most of them. For further information, please see: Ontario Bar Association – Best Practices for Remote Hearings.

Takeaways:

For as long as social distancing measures remain in place, virtual legal proceedings are going to be the new norm. Litigants are thus encouraged to canvass their options for proceeding with their disputes remotely. Once a virtual proceeding is confirmed, litigants should treat it as seriously as a face-to-face proceeding. Detailed and thorough preparation will be crucial to success.

If you have any further questions or concerns, Lee Workplace Law would be happy to assist you.


*Written by Hannah Goranson