On May 21, 2020, in Rovi Guides, Inc. v Videotron Ltd., the Federal Court of Canada took an important step forward in its digital evolution, setting the parameters for a remote trial to be conducted by videoconference, following a trial management conference.

The decision gives an indication as to how the Federal Court envisages trials may be conducted in light of the global COVID-19 pandemic. Parties in the throes of litigation will want to take note of what this decision could mean for their own proceedings and what steps the Court is prepared to take to ensure cases are still heard despite the pandemic.

In its decision, the Court recognized that there is a balancing act between ensuring the health and safety of court participants and the need to maintain judicial operations. Given the local public health restrictions, a remote hearing using the popular Zoom platform was chosen. The Court made a number of points regarding the use of Zoom, such as:

  • The registry officer will act as the Zoom "host" and the trial judge as the "co-host".
  • The Zoom chat function cannot be used for private discussions by the trial participants, but the trial judge and registry officer can use this feature.
  • Zoom break-out rooms can be used by the Court should a witness need to be isolated.
  • Microphones should be muted and video cameras should be turned off at various points of the hearing.
  • Members of the public and the media can view public portions of the remote hearing by requesting a Zoom meeting link from the Court.

The Court also sought to address concerns with potential technological issues which could impede the hearing, indicating that:

  • Counsel must take reasonable steps to ensure they have suitable technology, including internet and audio-visual connections.
  • Hardware and software will be tested prior to trial.
  • The trial will be adjourned if an "Essential Individual" loses their internet connection. Who is considered an "Essential Individual" will vary at different points in a hearing.
  • Objections can occur after a question has been answered if a faulty internet connection prevents counsel from voicing their objection in time.
  • Counsel must jointly prepare a list with back-up phone numbers to use in the event communications are interrupted.

The decision also sets out a number of rules regarding calling witnesses and attaches a best practice information sheet for witnesses, reminding them of their obligations. Finally, the Court indicated that should local public health restrictions be eased, alternative arrangements may be made to conduct the remainder of the hearing in person or in a hybrid fashion, combining in-person and virtual participation.

Unfortunately, there is still no certainty as to when life and the Courts will return to "normal" as we know (or knew) it. In the meantime, Courts are taking advantage of technology to ensure litigation progress continues. You can expect hearings to look very different in the immediate future and may even be irrevocably transformed in a post-COVID world. Parties and counsel alike will be keeping their eyes out for the "User Guide for Participants" that the Federal Court intends on publishing shortly for further guidance.

Originally published 27 May 2020

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