Since the legal world entered lockdown with the rest of humanity, many questions have abounded with respect to how the justice system will continue chugging along without boardrooms, courthouses and reporting offices. The main concern – namely, the absence of in-person gatherings has been addressed by telephone and video conferences. Both courts and reporting offices should be commended for agreeing to (and encouraging) the use of technology to allow hearings and examinations to continue.
However, the replacement of in-person affairs with technology has inevitably created another problem. While the technology is available, many litigants have refused to use it and instead are insisting that their hearings and examinations should be postponed until the lockdown ends and physical spaces open up for business again. In those instances, the question becomes whether a party should be forced to conduct litigation electronically when the other side insists on it.
Thankfully, the courts have already addressed this issue on a number of occasions and the answer has often been in the affirmative. Ontario courts at nearly all levels have acknowledged that electronic hearings and examinations and written advocacy may create their own issues and may not be suited to everyone's tastes. Despite this, it has been ordered on many occasions that the system must persevere in the wake of this pandemic and that means parties have been forced to continue with their lawsuits by alternate means even when they actively resist.
In Association of Professional Engineers v. Rew, 2020 ONSC 2589, Justice Corbett of the Ontario Divisional Court was tasked with dealing with an application for judicial review over video conference. The matter dealt with professional discipline, and therefore the issues were important and the stakes were high.
During a case management conference before the hearing, counsel for the Respondent vehemently opposed a virtual hearing and requested that the hearing be adjourned until it could be conducted in-person. Justice Corbett rejected this argument for three principal reasons.
First, his honour noted the courts are "faced with an unprecedented challenge maintaining the institutions essential for the continuation of the Rule of Law in the face of the COVID-19 crisis, and recourse to electronic hearings is a key aspect of the court's response". As such, courts should be making use of this technology where appropriate and consent of both parties is not needed for a hearing to be conducted virtually.
Second, there was nothing about that particular case which rendered it unsuitable for a hearing by video conference. The Respondent's counsel argued that the stakes for his client were very high; being that is was a determination dealing with professional discipline and an in-person hearing would therefore be more appropriate. Justice Corbett agreed that the issues were important and the stakes were indeed high. However, in response to these concerns, his honour stated that "this court has already heard three panel hearings by video conference during the COVID-19 crisis all three of which were of substantial importance to the parties. The relative importance of the case has nothing to do with whether the case can be heard fairly and efficiently by video conference".
Lastly, the Respondent's counsel argued that there are certain dynamics involved in a live hearing which may be lost during a video conference. In support of this, he cited a 2007 article about appellate advocacy, which counseled lawyers to watch judges' movements carefully during an appeal hearing. Justice Corbett addressed this argument by stating that, during the current COVID-19 crisis, courts should not be opining on the policy arguments for and against hearings over videoconference. Rather, such issues should be "be taken up with the Office of the Chief Justice, not individual judges across the Province".
Justice Corbett acknowledged that judges do retain the inherent jurisdiction to ensure that each case proceeds fairly; but in that particular case, there was nothing to suggest that anything of substance would be lost in a video hearing. Conversely, his honour noted that "[s]omething will be lost if court business does not continue, as best as can be managed, during the COVID-19 crisis".
On a different note, in Arconti v. Smith, 2020 ONSC 2782, Justice Myers of the Ontario Superior Court of Justice was tasked with determining the issue of whether the Plaintiffs in an ongoing proceeding ought to be required to conduct examinations for discovery by videoconference.
The Plaintiffs objected to an examination by videoconference because:
- They needed to be with their counsel to assist with documents and facts during the examination;
- It is more difficult to assess a witness's demeanour remotely;
- The lack of physical presence in a neutral setting deprives the occasion of solemnity and a morally persuasive environment; and
- The Plaintiffs did not trust the Defendants not to engage in sleight of hand to abuse the process".
In initially addressing these concerns, Justice Myers stated that:
"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."
However, the analysis did not end there and his honour did acknowledge that technology such as videoconferencing is a tool (not an answer) and there is a fair determination to be made as to whether parties ought to be required to use it.
In addressing these concerns, Justice Myers stated that the risk of fraud and abuse does exist, but it should not be presumed. This is especially true for a regulated profession like this one, where licenses are at risk. As such, it was held that the risk of abuse is a not a valid basis to decline to use available technology.
Justice Myers also acknowledged that the "physical presence of lawyers, parties, and officials in a neutral location creates a solemnity and discomfort for the witness that is important to the examination process." and that "[a] witness sitting in his or her favourite chair at home on video may not feel the same pressure of the occasion as a witness who is face-to-face with an adversarial lawyer in court or in a crowded examiner's chambers."
His honour also cited an argument that examinations over videoconference could raise "due process concerns" for the unsuccessful party.
In rejecting these arguments, Justice Myers held that there were not due process concerns inherent in video-based examinations. All parties still have the same opportunity to participate in the process, put relevant evidence before the court and to be heard.
Regarding the possible unfairness and discomfort that an examination over video may create, Justice Myers held that it was outweighed by the importance of matters to continue to proceed during the current lockdown. In particular, his honour stated that the technology being used is not new and in his view, "in 2020, use of readily available technology is part of the basic skillset required of civil litigators and courts".
In the end, it was held that, while the Plaintiffs' concerns were legitimate, they did "not outweigh the desirability of proceeding with this matter and do not justify further delay". The Defendants were still entitled to their day in court, and they should not be deprived on that based on the Plaintiffs' objections to proceeding via videoconference.
Appeals Entirely in Writing
The Court of Appeal has also weighed in on this debate. In 4352238 Canada Inc. v. SNC-Lavalin Group Inc., 2020 ONCA 303, Justice Roberts dealt with the issue of whether appeals should be heard in writing during this time, even where one or more parties objects to it.
In that particular case, the Respondents asked that the Appeal be determined entirely on a written record. The Appellant objected and argued that the court would not have jurisdiction to hear an appeal in writing over a party's objection. In particular, the Appellant argued that the Courts of Justice Act, R.S.O. 1990, c. C.43, and the Rules of Civil Procedure both mandate that appellate hearings are to be conducted orally unless the parties consent to an appeal in writing.
Before turning to the Appellant's argument, her honour noted that it was "beyond controversy that the COVID-19 pandemic has created extraordinary circumstances to which we must all adapt as best we can". In particular, over the past three months, no appeals have been conducted in person at the Ontario Court of Appeal and over 100 have been adjourned as a result. To address this issue, the Court of Appeal has been hearing appeals remotely and in writing and remote case conferences have been convened in order to manage and schedule appellate hearings.
In addressing the Appellant's argument, Justice Roberts held that neither the Courts of Justice Act, R.S.O. 1990, c. C.43, nor the Rules of Civil Procedure "mandate the absolute right to an oral hearing of an appeal". Rather, her honour held that, under the circumstances, "it is well within this Court's jurisdiction to order that a civil appeal be heard in writing when the due administration of justice requires it. During these extraordinary times, judicial resources are strained. The ability to hear appeals remotely is not unlimited. Where appropriate, some appeals must be heard in writing in order to ensure that appeals continue to be heard in a timely and an orderly fashion."
In the end, it was ordered that the appeal would proceed entirely in writing, despite the objections of the Appellant. In making this determination, Justice Roberts also noted that the appeal dealt with a fairly straightforward contractual interpretation issue and could easily be determined solely on a paper record.
As these decisions demonstrate, the courts have not taken a hard and fast stance that written records and arguments via videoconference are destined to replace oral advocacy. However, it is clear that the courts understand that during these unprecedented times, parties are still entitled to their day in court, whether by videoconference or on a written record.
The fact that a party to a proceeding may not want to proceed that way, is not a valid reason to push cases off until the world opens up again. The limited means we have of keeping the justice system moving do not come anywhere close to moving us back to normal; but under the circumstances, we may be forced to use them when the interests of justice mandate it.
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