Litigants and courts alike have faced struggles with handling a new frontier of litigation in the age of COVID-19. However, these challenges have spurred courts to take more decisive steps to modernize and streamline court processes. There have been a number of recent decisions that demonstrate Canadian courts are increasingly willing to adopt more contemporary and efficient methods of proceeding, and we expect at least some of these methods will survive beyond the pandemic.
Courts weigh in on how to run a trial
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. However, none of these considerations are unique to the Federal Court. Parties in the throes of litigation will want to take note of what this decision could mean for their own proceedings and what steps courts are 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, the matter proceeded with a remote hearing using the popular Zoom. However, the court provided direction regarding the use of Zoom, including that:
- The registry officer would act as the Zoom “host” and the trial judge as the “co-host.”
- The Zoom chat function may not be used for private discussions by the trial participants, but the trial judge and registry officer could 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 were permitted to view public portions of the remote hearing by requesting a Zoom meeting link from the court.
The court anticipated, and sought to address practical concerns with potential technological issues that 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 his or her 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 set out rules for calling witnesses and attached a best practice information sheet for witnesses, reminding them of their obligations.
Streamlining more than just video appearances
The court’s approach to modernization in Rovi Guides was reflected in the June 24, 2020, Federal Court of Appeal decision in Teksavvy Solutions Inc. v Bell Media Inc. In this second decision, the court recognized that the pandemic has accelerated the rate at which the courts have had to fashion new procedures. In determining whether six separately represented intervening parties met the requirements for intervention, the court embraced the need to change culture to create a more efficient, faster, and less expensive justice system.
Thus, while the court found that each party met the requirements under Rule 109 of the Rules to intervene, it took the unusual step of separating the six interveners into three distinct groups. The court found that allowing all six interveners to intervene separately would only result in “lack of economy and duplication.” Instead, to streamline the process, the court permitted only one memorandum for each of the three groups.
The court expressed its hope that the collaboration would create useful synergies and result in more compact and persuasive submissions. The decision takes to heart the challenge of consolidating and simplifying court procedures where possible, and recognizes that not all improvements will be technological.
Cultural shifts are following suit
A third recent decision from the BC Supreme Court confirms that cultural shifts can revisit historical presumptions in important ways. In Winchester Investments Ltd. v Polygon Restoration Inc./Polygon Apres Sinistre Inc., 2020 BCSC 999, the BCSC considered how to proceed where a representative for discovery was located in Montreal, while both counsel were in Vancouver. The examining party sought an order permitting in-person discovery in Montreal, while the defending party sought an order that both counsel proceed from Vancouver.
The court concluded that permitting examining counsel to travel to Montreal to examine in person was “an unnecessary and unwarranted imposition on the participants in the examination for discovery.” The court relied upon the now-widespread recognition that “the technology exists through court reporting services in Vancouver to conduct remote examinations for discovery of a person located in Montreal.” Ultimately, the court concluded that video examination was more efficient, and should be preferred.
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 and that efficiencies are harnessed for the judicial system.
You can expect litigation to look very different in the future. Indeed, our hope is it will be irrevocably transformed - for the better. Parties and counsel alike will be keeping their eyes out for further decisions that will articulate just how far the courts are prepared to go in modernizing the Canadian justice system.