‘It’s 2020.’ With these words Justice F.L. Myers of the Ontario Superior Court ordered discovery of a defendant in a securities fraud case to proceed by videoconference over the plaintiff’s objections.

The plaintiffs in Arconti v Smith put forward an array of arguments for the delay. They said they needed to be with their counsel to assist with documents and facts during witness examination; that it would be more difficult to assess the witness’s demeanour remotely;  that the lack of a physical presence in a neutral setting would deprive the occasion of solemnity and a morally persuasive environment; and that the defendants might use sleight of hand to abuse the process.

‘In my view, the simplest answer to this issue is, ‘It’s 2020’,’ said Justice Myers. ‘We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools any more. We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.’

He noted that Ontario’s civil procedure rules had allowed for videoconferencing for more than 20 years while the rule that evidence should be provided ‘in court’ did not apply to motions; nor was demeanour a factor in this case, since only the transcript of the discovery would be available for use at trial by the plaintiffs.

Cheating

On the possibility of cheating he acknowledged it would be possible ‘to put a person or another computer screen outside the field of view of the camera’ but added that it was also possible to cheat in court using ‘a hearing device’ or ‘hand signals’.

‘While no one is immune from cheating, regulated professionals must maintain professional ethics and have their licences at risk,’ he said. ‘I do not think an amorphous risk of abuse is a good basis to decline to use available technology.’

Arguing that technological skills should be part ‘of the basic skillset required of civil litigators and courts’, he concluded: ‘In my view, much of the hesitancy and concern that led to the conclusions that the process is “unsatisfactory” or raises “due process concerns” stems from our own unfamiliarity with the technology... it is just a tool. It does not produce perfection. But neither is its use as horrible as it is uncomfortable.’ 

Not all cases are the same. In Miller v FSD Pharma Inc, Justice Morgan agreed to rescheduled a hearing for a securities class action to be heard over two days in court, in late June. He opined: ‘I do not think it appropriate to compel the moving party to proceed under conditions where plaintiffs’ counsel perceive that they may not be able to present the case as effectively as they would in person.’

Despite this, senior judges are keen to move forward with remote hearings.

In April, a politically contentious case in Ontario proceeded. A panel of judges from the Divisional Court in Toronto heard arguments for and against the Doug Ford government’s decision to cancel a wind turbine project, and about 200 people watched a livestream on YouTube. 

“We generally do this by way of pilot project. This is no pilot project,” said Chief Justice Geoffrey Morawetz of the Ontario Superior Court of Justice, the largest trial court in Canada with more than 50 locations and 340 judges.

Last month, Chief Justice Morawetz issued a consolidated notice on expanded court operations while a Best Practices document has been published by the joint E-Hearings Task Force of The Advocates’ Society, the Ontario Bar Association, the Federation of Ontario Law Associations and the Ontario Trial Lawyers Association.

Supreme court hearings

Later this month, the Supreme Court of Canada, which had cancelled its hearings from March through May due to Covid-19 will begin holding its hearings by video conference. 

The four scheduled cases include one on criminal court delay in which a lower-court judge stayed a charge of murder. The video hearings will resume again in September with a major case on the federal carbon tax. This push forward follows years of frustration for the province’s court system, which remains heavily paper based.

‘The overall pace of court system modernisation in Ontario remains slow,’ the province’s Auditor-General, Bonnie Lysyk, said in a report last autumn, which revealed that out of 2.5 million filings in 2018-19, 96% were paper documents.

While welcoming the move to virtual courts, Amy Salyzyn, associate professor at the University of Ottawa, Faculty of Common Law, called attention to privacy issues and the integrity of the legal process. ‘As we move forward and make decisions about what the courts of the future will look like, we ought to engage in a robust analysis that embraces the full complexity of the issue,’ she warned in an article in Slaw magazine.

In an online fireside chat with the Advocates’ Society on 6 April, Chief Justice Morawetz said: “If there is one positive that’s going to come out of this crisis, it’s that we have been forced, and the ministry has been forced, to accelerate its plans and to move into electronic hearings and also into electronic filings... We cannot go back.”

Further reading on remote courts

Remote court hearings in Hong Kong: an opportunity missed - Corinne Remedios is disappointed by the failure of the courts to deploy modern technology during the Covid-19 lockdown

From complete shut-down to great agility: how family courts across the world have responded to Covid-19 - In a series of reports from New York to Melbourne, senior lawyers assess the effectiveness of family law during lockdown

Irish courts thrown into confusion over 'bizarre' two-hour hearing rule - Clarity sought over policy for physical court appearances after surprise ruling that sittings could not last for more than two hours

International project launched to share best practice on remote court hearings - Legal futurologist Professor Richard Susskind unveils initiative to co-ordinate efforts to use technology to keep courts open