Although operating to only a limited extent, our courts are surprising well equipped (procedurally) for most litigation to continue remotely. For instance, with regards to

Discoveries:

“[E]xaminations of witnesses by video conferencing are a normal process in modern international litigation as opined by Neubold J. in Midland, and even more so in the seven years that have passed since that decision in 2009.” Alves v. Gaughran, 2016 ONSC 5645 (CanLII).
This was recently illustrated in Arconti v. Smith, 2020 ONSC 2782 (CanLII), where Myers J. ordered discoveries to proceed remotely, over the objections of plaintiff’s counsel. In so doing, he stated:

“In my view, the simplest answer to this issue is, “It’s 2020”. We no longer record evidence using quill and ink.”

Scheduling Discoveries:

Where one party refuses to proceed with examinations by video conferencing, as was true in the Alves case, same may be ordered, where in person attendance is impractical (i.e. as in the Arconti case). While the Alves case dealt with an out of province defendant (and Rule 34.07), Rule 34.03 simply requires that examination take place in the county where the person resides, while Rule 1.08 permits evidence to be taken by video conference.

Moreover, “[i]n Hryniak, the court recognized that to create an environment that promotes efficient, affordable and participatory access to justice requires modern methods of adjudication. Implicitly, those modern methods of adjudication include video technology in the courtroom.” Davies v The Corporation of the Municipality of Clarington, 2015 ONSC 7353 (CanLII), par. 25. The same should be true outside the courtroom, when the courtroom is closed.

Evidence by Video at Trial

Ontario has a long history of permitting contested matters, including trials, to proceed with witnesses appearing remotely. Twenty years ago, in Wright v. Wasilewski, 2001 CanLII 28026, a personal injury trial, Master Albert permitted 20 witnesses, including medical experts to give evidence by way of video conference, and stated:

“Video conferencing is an interactive technology. It is conducted in real time. The witness is able to see and hear what is going on in the courtroom. Those in the courtroom in Toronto are able to see and hear the witness “live”. Questions can be asked and answered. Examination in-chief, cross-examinations and re-direct examination could be conducted live, though not in person…Evidence presented by video conferencing gives the trier of fact an opportunity to observe the demeanour of the witness and hear the inflections of voice and other visual and verbal cues that are part of oral testimony.”

More recently, Justice Mew opined on a case where witnesses had testified by video at trial, and remarked that:

“Video technology has advanced such that courts have found that it is possible to make findings of fact and decisions about credibility based on videoconference evidence.

The picture and sound quality were excellent. Counsel and the court registrar were able to efficiently manage the process. The flow of testimony was not markedly less spontaneous than it would have been if the witness had been present in court. The entire experience was, from the perspective of this trial judge, entirely satisfactory”

Chandra v CBC, 2015 ONSC 5385 (CanLii) at paras 19,32.

Additionally, and as cited in Chandra, video testimony is often used in criminal cases in Canadian courts, even where credibility is a central issue and the stakes are high, including in cases of sexual assault. It is trite law that the burden of proof is much higher in criminal cases than in civil, and if credibility arguments against remote testimony don’t work in the criminal context, it would be hard to imagine them carrying the day in the civil context.

Further support for permitting trials to be conducted remotely can be found in Davies v The Corporation of the Municipality of Clarington, 2015 ONSC 7353 (CanLII), par. 23. In that case, the Court stated that:

“[T]he Supreme Court is clearly signalling that there must be a cultural shift away from the traditional trial in favour of modern procedures that meet the needs of any particular case.”

As Rule 1.04 requires the rules to be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on the merits, the weight of authority would seem to suggest that matters should continue to proceed remotely, and that same would likely be ordered, in the event a motion were brought in suitable circumstances.

Hearings

A recent decision indicates that the court may not entertain requests to delay hearings until same can be accomplished in person. Specificially:

“[T]he consent of the parties is not required for the court to schedule the hearing by video conference. This is clear from the terms of the Practice Direction effective April 6, 2020. The court is faced with an unprecedented challenge maintaining the institutions essential for the continuation of the Rule of Law in the face of the COVID-19 crisis, and recourse to electronic hearings is a key aspect of the court’s response. Scheduling and conduct of court proceedings is not subject to the consent of the parties….. Something will be lost if court business does not continue, as best as can be managed, during the COVID-19 crisis.” Association of Professional Engineers v. Rew, 2020 ONSC 2589 (CanLII), par. 9,

Should you need help with such a motion, please don’t hesitate to contact Michael’s Law Firm to see whether we can help.