The COVID-19 pandemic has had a dramatic, and will no doubt have a lasting, impact on the conduct of litigation in Canada. Along with addressing procedural complexities, litigating in the COVID-19 era has also raised novel practice concerns for Courts and counsel, alike.
With the adoption of new technologies, and an expedited "coming of age" for the Court, the judiciary has had to consider emerging evidentiary issues that have arisen secondary to shifting litigation to online platforms.
In the first three months of 2021, the Ontario Superior Court released a trio of decisions that consider whether examinations conducted via Zoom can be recorded; the treatment of evidence on a cross-examination conducted virtually that was influenced by non-parties; and the manipulation and misuse of electronic evidence at trial.
Can Examinations conducted via Zoom be recorded?
The Honourable Justice Cullin, in the case of Shukla v. Fenton, 2021 ONSC 1340, considered a request made by counsel for an Order to permit the recording of a continued cross-examination conducted via Zoom. The initial cross-examination has been adjourned due to alleged "persistent interruptions and interference by Defence counsel".
In his decision, while it was noted that the use of the Zoom platform for conducting examinations had become ubiquitous during the pandemic, the video-recording of proceedings has not. Justice Cullin found it clear, based on the wording of Rule 34.19 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that the video-recording of examinations is the exception, and not the rule. While the Rules may eventually be amended to reflect the changing use of technology in litigation, any such amendment would first be the subject of debate; and in Justice Cullin's opinion, appropriately so. "Just because technology can be used, does not always mean that it should".
Justice Cullin writes that "disagreements between counsel during examinations are neither unusual nor exceptional", and there was nothing on the face of the record that necessitated the recording of a continued cross-examination. Further, it would be rare that the Court would require a video to assess the conduct of counsel. In the words of Justice Cullin, "indeed, the prospect of inundating the Court with "Lawyers Gone Wild" videos makes opening this evidentiary door undesirable".
How should evidence on a virtual examination be treated when it is influenced by an off-camera party?
In the case of Kaushal v. Vasudeva et al., 2021 ONSC 440, Justice Gilmore considered a request by the applicant, Kaushal, for an Order striking out the evidence of the Respondent, Vasudeva, on the basis of misconduct during cross-examination conducted via Zoom.
The Respondent, along with an interpreter, attended at his counsel's office for the cross-examination to be conducted. Both the respondent and his interpreter were logged into one computer in his counsel's boardroom, while his counsel logged in through a separate device. Logged into additional separate devices at various locations were counsel for the Applicant, the Applicant, and a Court reporter. The Respondent's wife and son attended the examination with him but allegedly remained in the reception area of his counsel's office during the examination.
At the outset of the examination, counsel for the Applicant confirmed with the Respondent that the only people present in the boardroom during the examination were himself, the interpreter, and his counsel. This was confirmed on the record. Post-examination, and as a result of a microphone and video camera on one or more of the devices present in the boardroom remaining on, the Applicant was able to hear discussions between the Respondent, the Interpreter, and the Respondent's wife and son, which suggested that both had listened to the entirety of the examination. While their presence was again denied, an affidavit subsequently sworn by the Interpreter confirmed that the Respondent's wife and son were in the boardroom during the entirety of the examination and that they were both prompting the Respondent with answers by hand, and facial gestures.
Whether the hand or facial gestures changed the Respondent's answers, was of little consequence to the Court's analysis. Justice Gilmore stated that the "mere fact that they occurred during the course of a three-hour examination leads to no other conclusion than all of the evidence being tainted".
Citing Rule 34.15 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Justice Gilmore noted that sanctions for "misconduct" during an examination include striking out all, or a portion, of a person's evidence, including any affidavit made by that person. While this was a "strong remedy" reserved for only the "most egregious situations", Justice Gilmore weighed the seriousness of the remedy against the responsibility of the Court to ensure that the "integrity of the fact-finding process must be maintained, (which) includes the fact-finding process on virtual cross-examination". The Respondent's misconduct amounted to an abuse of process, and the evidence on his cross-examination, and affidavit, were struck.
Given the shift to virtual examinations in the legal system, Justice Gilmore stated that "it was up to the judiciary, as its gatekeepers, to ensure that the tool is not abused, nor seen to undermine" the legal system. "Litigants and the public must be reassured that the process remains fair, even if it is different or new".
How will the Court treat fabricated electronic evidence in the era of "fake news"?
The Court, in the contentious family law action Lenihan v. Shankar, 2021 ONSC 330 (CanLII), had an opportunity to consider the manipulation and misuse of electronic evidence in the era of "fake news".
Set against the backdrop of a child custody dispute, the court was faced with the attempt to introduce fabricated electronic evidence by the Respondent. Due to the pandemic, the trial proceeded via a hybrid of in-person attendance and via virtual attendance facilitated by Zoom. Amongst the issues considered by the Court were the authenticity of text messages, emails, a fabricated paternity test and 'sperm donor' agreement, and logs for a co-parenting website designed to document exchanges between the Applicant and Respondent.
The Court undertook a consideration of the authenticity of the alleged documents, by considering both the Evidence Act, R.S.O. 1990, c.E-23, and the principles that were set out by the Ontario Court of Appeal in R. v. C. B., 2019 ONCA 380. Ultimately, in the face of a lack of evidence that the items were what they purported to be, the authenticity of the documents was denied.
In the course of the trial, the Respondent also attempted to mislead the Court by calling her "previous husband" as a witness. The examination was conducted via Zoom. The individual, in the observation of the Court, appeared to be a student, read answers to prepared questions, and during his cross-examination, was noted to look at his phone. At the same time, the Respondent was noted to be on her phone, or outside of the view of the camera. Justice McGee ultimately disqualified the evidence provided when it became clear to her that the witness was not "who he was presented to be". Moreover, it was suggested that his evidence was being influenced by the Respondent.
The Court closed with a stern warning and reminder that, as the courts transition to a fully digital platform, we must be aware of the potential for manipulation and misuse of electronic evidence. These tactics can be used to damage a litigant's credibility, and to gain litigation advantage. Fake electronic evidence has, in the perspective of the Court, "the potential to open up a whole new battleground in high conflict.litigation, and it poses specific challenges for Courts".
While these decisions originate in Ontario, judicial systems throughout Canada are grappling with similar issues as Courts rapidly adapt to the need for remote options in an effort to keep the proverbial "wheels of justice" turning. These insights from the Ontario bench provide guidance that is likely to be considered by other Courts country-wide when addressing misconduct. While the Court continues to adapt to pandemic realities, counsel must also remain on guard to protect the interests of their clients and to actively and consciously be aware of the potential for misuse and manipulation of electronic forums and evidence. It is incumbent upon all of us, collectively, to ensure that the tools available to us are not abused, or seen to undermine the integrity of the legal system.
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