The winds of change have been blowing hard lately, but the saying “it’s an ill wind that blows no good” suggests that even something as thoroughly devastating and unwelcome as the COVID-19 pandemic can hopefully facilitate some positive change in the justice system.
From the outset of the emergency, the courts and bar came together quickly to implement practical modern solutions for the use of video technology. Early on, we were able to launch virtual courtrooms and to train judges to manage hearings in a way that approximated a real court as closely as possible. The COVID-19 crisis doesn’t change the value of advocacy or necessitate a different balance between our oral and written traditions. Technology for videoconferencing and document exchange provide modern ways for decisions to be made as they always have and always should: based on what is appropriate and likely to yield the fairest result in every case.
Emerging case law reflects a swift adoption of videoconferencing in various stages of civil litigation: examinations for discovery (see Arconti v. Smith 2020 ONSC 2782, but cf. Miller v. FSD Pharma, Inc. 2020 ONSC 2253; mediations (see Sivarajah v. Andrikopolous, 2020 ONSC 2667); appeals at the Divisional Court (see Association of Professional Engineers v. Rew 2020 ONSC 2589) and at the Court of Appeal (that the Court of Appeal for Ontario has embraced videoconferencing can be seen in paragraph 13 of the Court of Appeal’s April 6 practice direction, and the continuation of a trial in the Federal Court (Rovi Guides Inc. v. Videotron Ltd. 2020 FC 596). The Supreme Court of Canada will hear appeals by Zoom videoconferencing on June 9-12, 2020. Internationally the changes have already gone further, with the U.K. and some U.S. states having conducted or piloted jury trials.
Administrative tribunals have already conducted videoconference hearings. The College of Chiropractors of Ontario was the first regulated health profession to hold discipline hearings using Zoom videoconferencing (facilitated by the Ontario Bar Association (OBA) concierge service), when it held two on May 14, 2020. The College of Physicians and Surgeons of Ontario will hold a contested discipline hearing by videoconference in the next few weeks.
With normal operations still suspended, the Superior Court of Justice is embarking on a second wave of expanded virtual hearings under a new province-wide practice direction, which provides that virtual hearings are permitted without consent or court order.
As helpful as many of these developments have been, the larger issue for the justice system will not be how it conducts itself during the current emergency but how it performs when the emergency is over or at least attenuated.
In that regard, Chief Justice Geoffrey Morawetz and the attorney general have expressed a strong interest in lasting modernization; and the bar is ready to help. The OBA co-chaired an e-Hearings Task Force (which included TAS, FOLA and OTLA) that released its Report on best practices for remote hearings on May 13. It is a comprehensive document that should serve as required reading for every litigator. At the OBA we will continue to combine innovation and technology with an in-depth understanding of law and the justice system to create a future that better serves the needs of lawyers and their clients.
In an interesting development last week from a motion argued by teleconference, an appeal at the Court of Appeal was ordered to proceed in writing even though the appellant (moving party) was prepared to argue the appeal by Zoom videoconference (4352238 Ontario Inc. v. SNC-Lavalin Group Inc. 2020 ONCA 303). A motion for reconsideration by a full panel of the court has been filed.
Even with the courts, the attorney general and the bar working in the same direction, the contours and divisions of the new normal need to be developed and refined. We know that virtual access must always serve to provide substantive justice. While there is still much work to be done, what is clear is that the status quo ante can no longer be justified. For the bar and for all participants in the justice system, that is indeed a welcome wind of change.
As president of the Ontario Bar Association, Colin Stevenson is leading a practice innovation mandate to deliver leading-edge technology and approaches to lawyers — through practical tools, testing, information, know-how and advocacy — that will enable them to enhance their service delivery and competitive advantage in a rapidly changing legal marketplace.
This article was originally published by Law360 Canada – providing Canadian legal news, analysis and current awareness for lawyers and legal professionals who need a real-time view on the shifting legal landscape.