“It’s 2020” – and the Litigation Process May Be Conference Calling Into the Future

Authors: Gregory Fleetwood, Mira Bokhaut

As the COVID-19 pandemic continues to unfold, Canadians remain subject to restrictions on gatherings and physical distancing rules. While these restrictions have presented challenges in the litigation process, counsel, litigants and the Courts have adapted to increase the use of remote communication technology in an effort to reduce the spread of the virus and allow litigation matters to move forward. In this way, the pandemic has served as a catalyst for change in the litigation process that parties may expect to see continue in the future.

In a recent case conference endorsement, the Ontario Superior Court of Justice ordered that the examination of the defendant proceed by way of videoconference, or not at all (Arconti v. Smith, 2020 ONSC 2782). In its reasons, the Court indicated that the continued used of technology in the litigation process may be beneficial, and therefore technological competency is necessary.

In that case, the plaintiffs’ examination of the defendant could not proceed in person due to the physical distancing rules implemented in response to the pandemic. The plaintiffs objected to conducting the examination by way of videoconference and requested that the proceedings be delayed until the requirement for physical distancing ended, maintaining that:

  • They need 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;
  • They did not trust the defendants not to engage in sleight of hand to abuse the process.

The Court decided the issue by noting that “It’s 2020”, and endorsed the use of videoconference, specifically highlighting the benefits of remote communication technology. In this regard, the decision can be seen to have endorsed the future use of that technology in the litigation context:

“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.”

The Court recognized that there are legitimate concerns about the use of technology. It would not be difficult, for example, to put a person or another computer screen outside of the field of view of the camera that could enable improper prompting of a witness. With current Bluetooth technology, even where parties are in the same room, a witness could wear a hearing device and readily receive improper prompting.

Despite these legitimate concerns, the Court maintained that an amorphous risk of abuse was not an adequate basis to decline the use of technology, and reminded the parties that counsel have professional obligations that preclude parties from using ‘sleight of hand.’ The Court  also rejected the suggestion that the use of videoconference created “due process” concerns, finding that all parties would have the same opportunity to participate and be heard regardless of the format. Ultimately, the Court concluded that the benefits of continuing the litigation efficiently and affordably, and avoiding further delay, outweighed the potential risks.

The Court concluded that in the current era, the use of readily available technology is part of the basic skillset required of civil litigators and courts. This technology is not new, and unlike the pandemic, did not arise suddenly. However, the need for the litigation process to function during the pandemic brought to the fore the availability of alternative processes and the imperative of technological competency. The Court also recognized that efforts can and should be made to help people obtain any necessary training and education.

The pandemic caused a re-assessment of resources and procedures by all parties to the litigation process, as traditional in-person litigation proceedings could not be conducted safely. Those in-person proceedings have historically required lawyers, clients and witnesses to travel and commute despite mobility, financial and other logistical challenges. They have also been seen to have contributed to some delay and backlog in the system. With various options for remote communication technology, counsel have the ability to “log-in” from a remote location and engage with other counsel or the Courts in a timely and cost-efficient manner. At least at present, these alternative measures seem to be working reasonably well. Arconti v. Smith may be seen as an exciting and positive indication of the benefits that technology can continue to afford in the litigation context as we move forward. While we may not see multiple-week trials occur by videoconference anytime soon, we may expect to see certain steps – perhaps case management conferences, examinations for discovery and motions – to continue to be conducted remotely into the post-pandemic future.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.