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Is Litigation By Zoom Here to Stay?

The legal system largely responded to the COVID-19 pandemic by being forced to take advantage of technological advances that had long been ignored. The Rules of Civil Procedure were updated to allow for service by email and filing using online portals; the system transitioned to Zoom hearings and using CaseLines for working with documents.

Many of these changes were, according to most in the profession, long overdue and are likely to remain the norm even after the worst of the COVID-19 pandemic is behind us. But some of the changes were changes of necessity. They were not necessarily ideal, but were necessary modifications to allow the legal system to continue – to ensure the public’s access to justice – through a pandemic.

As restrictions loosen, the judicial system will be faced with difficult decisions. When will it be safe for lawyers and litigants to attend in-person hearings? Are in-person hearings even desired? What happens if one of the parties objects? Even when it is safe to do so, now that we’ve seen how effective video conferencing can be, shouldn’t the courts balance the efficiencies and reduced costs of virtual attendances against the benefits of in-person attendances?

Justice Myers was faced with precisely these issues in Worsoff v. MTCC. In that case, the plaintiff served notices of examination and insisted that his examinations of the defendants take place in person at an official examiner’s office rather than by video conference. The defendants objected and Justice Myers was left to decide how the examinations should proceed.

The first part of His Honour’s endorsement deals with the technical issue of which Rule properly governs a dispute over the method of examination and ultimately concludes that Rule 1.08 applies.

His Honour notes that Rule 1.08 is intended to be a less formal, more expeditious way to obtain a decision and “avoid creating yet a further process step to bog down civil actions”.1

Justice Myers wrote that in the vast majority of cases, the method of attendance should be a matter of agreement and “a party who insists on a particular method should have a good reason for declining to cooperate when someone else puts forward an alternative preference supported by a reason”.2

In this case, the defendants objected to in-person discoveries because of the ongoing pandemic and preferred not to get together at an examiner’s office with numerous individuals. They essentially argued that it was an unnecessary risk and one not worth taking.

The plaintiff’s lawyer argued that if it was safe for him to attend at a Blue Jays game with thousands of other fans, his client should be entitled to examine for discovery in person, which in his view was the best method to conduct an examination well and properly.

After reviewing the benefits and shortcomings of virtual proceedings and discoveries, Justice Myers held that the discoveries be held remotely, because there was no good reason to put the defendants to any increased risk of COVID-19 and the increased cost of having their lawyer attend in person from Ottawa.

Justice Myers’ comments at paragraph 31 of his decision – which are reproduced below – are also interesting:

… Some real changes are happening with the potential to actually improve access to civil justice for the public. I do not accept that the pandemic is over so we should all go back to the way it was. That assumes that the “good old days” were actually good.

The above statement implies that the adoption and acceptance of video conferencing as an alternative is not necessarily a temporary measure. It is not a second best option that is only resorted to when absolutely necessary. Rather, His Honour’s statements imply that video conferencing is here to stay and will continue to play a role in the litigation process.

  1.   Para. 15
  2.   Para. 20

The author of this blog is David Wagner. David is a partner at Wagner Sidlofsky LLP.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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