The issue in this case was whether the plaintiffs ought to be required to conduct an examination out-of-court by videoconference, rather than in- person at a later date, due to the COVID-19 pandemic.
The plaintiffs sued the defendants for negligently causing them to unjustly be found liable for securities fraud by the Ontario Securities Commission, among other causes of action. The defendants moved for summary judgment on part of the claim. Justice Myers ordered that a mini-trial be held to determine if summary judgment should be granted. He also granted the plaintiffs the opportunity for further examinations for discovery of the defendants prior to the mini-trial.
Prior to the mini-trial, Justice Myers convened a case conference to discuss trial readiness with counsel. At the case conference, counsel for the plaintiffs advised that the plaintiffs did not wish their examination for discovery of one of the defendants to proceed by videoconference. He requested a delay in the proceedings until such time as the requirement for social distancing due to COVID-19 is terminated, so that the examination for discovery could proceed in person. The plaintiffs objected to a videoconference examination because they maintained that
- they need to be with their counsel to assist with documents and facts during the examination,
- it is more difficult to assess a witness's demeanour remotely,
- the lack of physical presence in a neutral setting deprives the occasion of solemnity and a morally persuasive environment, and
- the plaintiffs do not trust the defendants not to engage in sleight of hand to abuse the process.
Justice Myers wrote an endorsement in which he ordered that the examination for discovery proceed by videoconference, unless the plaintiffs choose to waive their opportunity to conduct the examination. He concluded that "it's 2020". Rule 1.08 of the Rules of Civil Procedure has provided for videoconferencing since it was added in 1999. In 2008, the rule was amended to enable the court to require remote proceedings on its own initiative. Further, it is worded very broadly to allow for the use of remote technology at any step in the litigation process.
He also stated that while concern for abuse of technology by a party remains an issue, we are not yet at a point where we presume it, and such amorphous risk is not a good basis to decline the use of available technology. Further, while an in-person examination may create a more solemn and morally persuasive environment, much of the hesitancy and concern for the use of videoconferencing stems from our own unfamiliarity with the technology. As familiarity with this technology grows over time, we may develop solutions to these perceived shortcomings.
As such, the plaintiffs' concerns regarding conducting an examination by videoconference do not outweigh the desirability of proceeding with the matter and do not justify further delay.
Justice Myers emphasized that in 2020, the use of readily available technology is part of the basic skill set required of civil litigators and courts. The need for the court to operate during the pandemic has highlighted the availability of alternative processes and the need for technological competency. Therefore, efforts can and should be made to become familiar with and make use of these technologies.
Read the full decision, or the other case study for May - Insurance Policies, 1 Insured: Who Defends the Action, Who Pays the Costs of the Defence, and Who Controls the Defence?, or go to MB's index of articles regarding COVID-19.
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