The Continuing Effect of COVID-19 on Litigation Matters

 In Commercial Litigation

Two recent decisions from Ontario’s Superior Court of Justice and the Ontario Court of Appeal illustrate the scope of changes in processes and procedure that Courts in Ontario are making to litigation matters. These cases also underscore an expectation for counsel and parties to cooperate and to be open to the use of different processes and technology in litigation matters, including the use of videoconferencing.

Arconti v Smith: Examinations via Video conference

Arconti v Smith, a very recent Superior Court decision, addressed the issue of whether a party should be required to conduct an examination by video conference rather than in person.

The plaintiffs in the matter did not wish for an examination in the proceeding to proceed by video conference, and given that an in-person examination was not possible at the time, they requested a delay in the proceedings until the requirement for social distancing ended, so as to be able to conduct an in-person examination.

The Court considered the issue, and while noting that there are legitimate issues with proceeding via video conference worthy of consideration, the Court ultimately held that the plaintiff’s concerns with the prospect of conducting an examination remotely do not outweigh the desirability of proceeding with the matter and do not justify further delay.

The Court denied the plaintiff’s request and ordered that the examination [to] proceed by video conference, unless the plaintiffs choose to waive their opportunity to conduct the examination. In doing so, the Court stated the following regarding videoconferencing and the use of technology in litigation:

[32]     I respectfully do not find the presence of any “due process concerns” inherent in the format of a video hearing. All parties have the same opportunity to participate and to be heard. All parties have the same ability to put all of the relevant evidence before the court and to challenge the evidence adduced by the other side. The only possible “unfairness” is a lack of comfort by one counsel that he or she will be at their best in presenting evidence and making arguments using technology. That conflates the two concerns raised by Morgan J.

[33]     In my view, in 2020, use of readily available technology is part of the basic skill set required of civil litigators and courts. This is not new and, unlike the pandemic, did not arise on the sudden. However, the need for the court to operate during the pandemic has brought to the fore the availability of alternative processes and the imperative of technological competency. Efforts can and should be made to help people who remain uncomfortable to obtain any necessary training and education. Parties and counsel may require some delay to let one or both sides prepare to deal with unfamiliar surroundings…

In addition to accepting that the use of videoconferencing in litigation matters does not raise any “due process concerns”, Myers J. went further, expressing a sentiment that the use of videoconferencing and technology in litigation should become the norm, stating:

“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.

After the COVID-19 pandemic ends, it will remain to be seen whether the Court, counsel and parties in litigation will continue to use videoconferencing and other technology for the hearing of litigation matters, or whether in-person examinations and hearings will return to being the norm.

4352238 Canada Inc. and SNC-Lavalin Group et al.: The Hearing of Appeals in Writing

Similarly, the recent Ontario Court of Appeal decision in 4352238 Canada Inc. and SNC-Lavalin Group et al. addressed the hearing of appeals in writing, specifically the question of whether the Court of Appeal can order an appeal to be heard in writing over the objection of one of the parties.

The appeal in this matter had been scheduled to be heard in April 2020, but was adjourned due to the COVID-19 pandemic. At a case management conference, the respondents suggested that the appeal proceed in writing, which the appellants objected to, instead seeking a traditional oral hearing.

The appellants submitted that the Court’s jurisdiction over its own process is limited to governing of administrative details, and that it cannot order that an appeal be heard in writing over the objection of one of the parties to the appeal, as they argued that this would run contrary to the Courts of Justice Act and the Rules of Civil Procedure.

The Court reviewed this issue and found that its implicit or ancillary jurisdiction to manage its process is broad. The Court reviewed the Rules of Civil Procedure and determined that there is no explicit direction that appeals to the Court of Appeal require an oral hearing.

As such, the Court of Appeal determined it had jurisdiction to order that a civil appeal be heard in writing when the administration of justice requires it, and given the current extraordinary times, the Court ordered that the appeal proceed in writing.

It is worth noting that the Court of Appeal ordered the appeal to be heard in writing in consideration of the current extraordinary times caused by COVID-19. It will remain to be seen whether any changes are made to the hearing of appeals in Ontario that will persist beyond the current extraordinary times.

This blog post was written by Alexander Bissonnette, a member of the Commercial Litigation team.  He can be reached at 613-369-0358 or at Alexander.Bissonnette@mannlawyers.com.

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