Before the COVID-19 pandemic and societal shutdown, it was quite rare for a court to hear a matter by video conference, and even rarer for a judge to order that a matter be heard that way. This is in spite of the fact that the Rules of Civil Procedure have explicitly permitted proceedings to be conducted this way for over two decades.

But as with so many other things, this has now changed, and the courts have suggested that the change may well be a permanent one. In Arconti v. Smith, J2020 ONSC 2782, Justice Myers had the following to say at paragraph 19 regarding a plaintiff that did not wish to have to examine a defendant over video conference:

“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.”

This position was upheld in Miller v. FSD Pharma, Inc., 2020 ONSC 3291, which required a high-stakes motion to proceed via video conference during the shutdown. Plaintiff’s counsel argued that it would be preferable to wait until the entire legal team could be assembled as lead counsel is often assisted by other lawyers who sit nearby. The court found, however, that the legal community has had sufficient time to adapt to the new circumstances, and that as the future of in-person gatherings remains unpredictable, the motion cannot be put off indefinitely.

The Federal Court of Australia has also weighed in on this issue. In Capic v Ford Motor Company of Australia Limited, [2020] FCA 486, the judge explicitly suggested a way to address the problem of the legal team not being physically present in the same room, noting that “in the hearing last month to which I have already referred senior and junior counsel who were isolated from each other communicated with one another and independently of me using WhatsApp”.

It is in any case fairly clear that, lawyers will be expected to examine witnesses and conduct court proceedings by video conference for the time being, and may well have to permanently accept this new way of doing things.

 

Email: jbrodski@pacelawfirm.com

Direct: (416) 342-5531

 

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