The Federal Court of Canada has embraced virtual hearings as the best solution to the prolonged Covid-19 shutdown. While acknowledging some litigants' concerns pertaining to procedural fairness and information security in recent rulings, the Court is more concerned that justice delayed can become justice denied.
Videoconferencing will not impede the Court's ability to assess the credibility of witnesses
The unprecedented suspensions following Covid-19 saw some litigants facing lengthy suspensions mid-way through trial. In Rovi Guides, Inc. v Videotron Ltd., one party argued that it would be unfair to require some witnesses to testify remotely after other witnesses had testified in person during the first week of trial.
The Court disagreed and decided that any benefit a party may have gained by having its witnesses testify in person would have been lost in the two month suspension since they appeared. While an in-person hearing is preferable, it does not necessarily follow that the Court's ability to assess the credibility of a witness or the effectiveness of counsel in examining the witness will be impaired by videoconferencing. Federal Court Chief Justice Paul Crampton confirmed during a webinar on May 22, 2020, that he did not perceive any difficulty in assessing demeanor and credibility of a witness through videoconference.
Nobody knows when witnesses will be able to testify in person. Rather than delay trials indefinitely, the Federal Court will employ technology to determine matters in the most expeditious manner. This could include hybrid hearings when restrictions start to ease. Witnesses could testify through videoconference while counsel and judges appear in the courtroom.
Limited access to electronic resources need not be a barrier
The Court seeks to ensure that all parties are treated fairly, know the case they have to meet, and can present their arguments to the Court. If a party cannot access records, does not have reliable high-speed Internet or cannot contact clients or witnesses, the Court will find a solution that is fair to all.
In Natco Pharma (Canada) Inc. v Canada (Health), the Court ordered a video hearing, reasoning that the necessary documents were available in electronic form, the parties were represented by experienced counsel who were prepared to argue the case, the facts were not seriously disputed, and the case turned on statutory interpretation. The Court observed: "It is incumbent on everyone involved in the legal system to try to mitigate this impact [of Covid-19] to the extent possible".
Monitoring the security of online platforms and protecting confidentiality
In Rovi Guides, the Court acknowledged privacy and security issues with Zoom but noted that most of them have now been remedied. It has set up a committee to monitor the security of Zoom and other platforms, and to ensure that the best technology is used for remote hearings.
Tools are also available to protect confidential information. These include eTrial Tool Kit, which was already being used and allows documents to be saved on and retrieved from the Court's servers. Other protocols already used for in-person hearings also remain available. For example, parties can refer to page numbers of confidential documents without displaying them. Zoom also offers virtual breakout rooms, which mimic an in camera hearing.
Are virtual hearings here to stay?
After his initial decision in Rovi Guides, Justice Lafrenière released a detailed Direction on how to conduct the trial:
- The hearing will be resumed using Zoom;
- Documents will be managed through eTrial Tool Kit. Document access will be controlled through an email distribution list;
- Witnesses may be called without subpoena and be provided with written guidelines for testifying virtually;
- Counsel may raise an objection verbally or by raising their hand;
- Members of the public and media may view all public portions of a remote hearing by writing to HEARINGS-AUDIENCES@FCT-CF.CA two business days before the hearing. The Court will hear Confidential evidence or submissions in break out rooms that are closed to the public;
- Prior to trial, counsel will ensure that all participants have the necessary technology and software;
- If an essential participant's internet connection fails, the trial will be adjourned until the issue is remedied;
The Court has recently issued a General Policy Statement regarding virtual hearings on its website which includes a User Guide for Participants. A presiding judge or prothonotary has discretion to depart from this general policy, based on the applicable law and the circumstances of the matter.
All litigants should be prepared to conduct virtual hearings unless there is a compelling reason to appear in person. In three months, Covid-19 has caused our courts to implement technological changes that would otherwise have taken years. We should expect many of them to outlive the pandemic.
Originally published May 27, 2020.
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