Over a year and a half into the COVID-19 pandemic, Ontario Courts are continuing to comment 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 contrast, they are less sympathetic to parties who insist on proceeding in-person. Here are some recent highlights on this topic.
In Worsoff v MTCC 1168,1 Justice Myers directed the parties to proceed to examinations for discovery virtually. 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 requested manner of 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.2 Although His Honour acknowledged that there are shortcomings associated with virtual litigation, some changes can likely assist with access to justice3 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.4
This is not the first time that Justice Myers has commented on the need for virtual examinations. Last year, in Arconti v. Smith,5 His Honour also dealt with the question of whether a plaintiff could be required to conduct an examination for discovery virtually. 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 as originally scheduled but would proceed shortly. Counsel for the plaintiffs then indicated that they did not wish to proceed with virtual examinations. Since in-person examinations were not possible at the time, the plaintiffs requested a further delay of the proceedings. The plaintiffs' counsel 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".6
Ultimately, 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.7
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. His Honour 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. 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.8
In addition to virtual examinations for discovery, virtual trials are also becoming part of the "new normal" in litigation. In Real One Realty Inc. v. Jing Liu,9 Justice Steele ordered that a 10-day trial proceed virtually, contrary to the plaintiff's wishes. Citing health concerns and rising 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.10
Citing reasoning from Justice Perram of the Federal Court of Australia in Capic v Ford Motor Company of Australia Limited,11 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".12
Despite this movement in favour of virtual proceedings, the Courts have not ignored the risks associated with this format. For example, in Kaushal v Vasudeva et al,13 concerns with off-camera influence of a witness was 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 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 and son and the interpreter. The respondent denied the accusation, but on examination, the interpreter confirmed that the respondent's wife and son had been present and had prompted the respondent with hand and facial gestures.
Justice Gilmore recalled some of the concerns that Justice Myers expressed in Arconti:
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.14
Her Honour ultimately found that the respondent's misconduct amounted to an abuse of process and, as such, his affidavit should be struck.15 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.16
With the COVID-19 pandemic ongoing (and its conclusion unfortunately uncertain), litigants and their counsel will need to incorporate remote technology into their litigation toolboxes. Courts are increasingly unsympathetic to parties delaying litigation by attempting to fall back on technology concerns. Although there is the possibility for abuse of these technologies, the Courts 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 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.
* Alexander Evangelista is an associate in the Litigation and Dispute Resolution Group of Fogler, Rubinoff LLP. Bree Pearce is an articling student with Fogler, Rubinoff LLP.
1 Worsoff v. MTCC 1168, 2021 ONSC 6493.
2 Ibid at para. 22.
3 Ibid at para. 31.
4 Ibid at para. 32(g).
5 Arconti v. Smith 2020 ONSC 2782.
6 Ibid at para. 18.
7 Ibid at para. 19.
8 Ibid at paras. 25-27, 32-33.
9 Real One Realty Inc. v. Jing Liu 2020 ONSC 8190 ["Real One"].
10 Ibid at para 6.
11 Ibid at para 14, citing Capic v Ford Motor Company of Australia Limited,  FCA 1117 at paras 23-25.
12 Real One, supra note 9 at para 15.
13 Kaushal v. Vasudeva et al., 2021 ONSC 440.
14 Ibid at paras 55-56.
15 Ibid at paras 65-66.
16 Ibid at para 71.
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