With the need to respect “social distancing”, civil litigation in Ontario has slowed noticeably. While lawyers learn how to utilize video conferencing technologies so that they can arrange meetings and participate in virtual mediations, other aspects of the litigation process have not leant themselves to virtual work arounds. One of these is the Examination for Discovery. This examination is an opportunity for the lawyers to examine the opposing party outside of the courtroom and well before a trial.
One of the main purposes of the Examination for Discovery is to allow each side to learn about the evidence the opposing party intends to call at trial. This can entail a detailed review of relevant documents. It is also an important opportunity to see how the opposing party responds to the pressure of being questioned; to gauge how they may perform at trial. Reviewing the available evidence and evaluating the opposing party as a potential witness can assist each side in assessing the strengths, and potential weaknesses, in their case, which, in turn, can help facilitate a settlement.
The Rules of Civil Procedure already allow for Examinations for Discovery to proceed by way of written questions, however, over 99% are held in-person.
As a result of COVID-19, the legal system has been subject to restrictions and limitations on all activities that require in person interaction. This has created delays in court proceedings such as the hearing of pre-trials, applications, motions, and trials. Such additional delays are adding to the difficult situation of parties engaged in the court process, who already faced years of litigation from the time their case was started until it was resolved by settlement or trial. In an effort to address the current situation, the courts, and many law firms, have adopted the latest technologies to bring the practice of law up-to-date and reduce the length of these delays as much as possible.
As an example of the court’s new approach to the use of technology, Justice Myers recently made an order giving the plaintiffs a choice: They could either proceed with the defendant’s Examination for Discovery by way of video conference or forego the right to a discovery.
The plaintiffs in Arconti v. Smith had objected to conducting an Examination for Discovery of the defendants by video conference and asked that the proceedings be delayed until social distancing has ended and they could proceed with an in person examination. They argued that:
- The parties had to physically be with their counsel to assist them with documents during the examination;
- It would be difficult to assess a witness’s demeanor through a video link;
- The absence of a neutral setting would reduce the solemnity and a morally persuasive environment required during an examination; and
- They did not trust the other parties to not abuse the process.
In rejecting these arguments, Justice Myers stated that “it’s 2020 … 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”.
His Honour commented that the use of widely available technology is now one of the basic skills both civil litigators and courts must develop. The need for the court to find new ways to operate during the pandemic has highlighted the availability of alternative procedures and the crucial role of technological know-how. People who are still uncomfortable with the use of the available technology will need to get the necessary training and education so that they can continue to participate in the litigation process.
There are apparent and real deficiencies related to proceeding remotely rather than in person. However, His Honour concluded that the benefits outweighed any risks. The most significant benefit was that litigation would be able to move forward.
This particular litigation had been rolling along for a number of years and Justice Myers concluded that the plaintiffs’ apprehension with conducting a remote examination did not outweigh the benefit of proceeding with the matter and did not warrant additional delay. Any perceived loss would be more than compensated for by the benefit of proceeding in an efficient and affordable manner.
Our civil justice system has been forced to change, and Justice Myers’ decision is a step in the right direction. With the technologies that are readily available, all lawyers will be required to work together in order to move their clients’ cases forward towards resolution.