In the recent decision of Arconti v. Smith, 2020 ONSC 2782, the Hon. Justice Myers of the Superior Court ordered that examination for discoveries should continue via video conference where in-person examinations were made impossible because of COVID-19 restrictions. The case provides renewed energy to litigation files that have stalled because of recent social distancing requirements.

Under the COVID-19 restrictions, it has become difficult for lawsuits to proceed. Lawsuits are already laborious, lengthy, drawn-out and expensive endeavours, so a complete standstill of the discovery phase of litigation has created serious access to justice issues. The demands for in-person hearings and proceedings has led the Hon. Justice Abella of the Supreme Court of Canada to issue a scathing comment in the Globe and Mail recently on the very structure of the rules of litigation. In her opinion piece, she stated:

“I cannot for the life of me understand why we still resolve civil disputes the way we did more than a century ago….Any good litigator from 1906 could, with a few hours of coaching, feel perfectly at home in today’s courtrooms. Can we say that about any other profession?”

[Enter the Hon. Justice Myers in Arconti v. Smith]

In Arconti v. Smith, the plaintiffs sued their lawyer, Mr. Smith, for ineffective representation, which they allege caused them a miscarriage of justice. The plaintiffs had retained Mr. Smith in an earlier proceeding before the Ontario Securities Commission and had been found to have committed securities fraud after a 12-day hearing. The plaintiffs initially appealed to the Divisional Court and asserted that Mr. Smith was a major reason for their loss. When the Divisional Court dismissed that appeal, the plaintiffs had already sued Mr. Smith and his partner, Mr. Fenton, for negligence, breaches of duty, and for various other causes of action.

The issue before Justice Myers (at a Case Conference scheduled days before an examination of Mr. Fenton was set to proceed) was whether the examination of Mr. Fenton should move ahead by videoconference. The plaintiffs requested a delay because they wanted in-person examinations. The plaintiffs opposed a video examination because:

1. they wished to be accompanied with counsel and to have the documents physically present during the examination;
2. it was difficult to assess a witness’s demeanour remotely;
3. the lack of physical presence in a neutral setting deprived the occasion of solemnity and a morally persuasive environment; and
4. the defendants could engage in sleight of hand to abuse the process (i.e. texting answers to the witness during examination).

In response to these valid concerns, Justice Myers’s response was short and to the point: “It’s 2020”. Echoing the sentiments of the Justice Abella, he stated:

“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 anymore. 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”.

In 2008, Rule 1.08(3) was amended to allow the court to require remote proceedings at the court’s own initiative. Justice Meyers commented:

“This reflects an evolution of the acceptance of the use and perceived value of remote communication technology whereby it can be ordered even where neither side asks for it or wants it.”

[…]

“In 2020, use of readily available technology is part of the basic skillset required of civil litigators and courts. This is not new and, unlike the pandemic, did not arise on the sudden…we are learning new ways to do things and they feel less “good” because we do not yet have the same comfort with the technology that we have with our tried and true processes”.

With respect to some of the plaintiffs’ concerns, Justice Meyers stated that,

“I respectfully do not find the presence of any “due process concerns” inherent in the format of a video hearing. All parties have the same opportunity to participate and to be heard. All parties have the same ability to put all of the relevant evidence before the court and to challenge the evidence adduced by the other side.”

It is important to note that Ontario’s Rules of Civil Procedure, have permitted videoconferences to be used under Rule 1.08(1) for more than 20 years. The problem was that all parties needed to consent to the use of the technology, and the practice was usually a last resort.

The present global circumstances require a rethinking in the way we approach litigation. The principle that can be drawn from Arconti v. Smith is that the legal profession must leverage remote technologies to resolve civil disputes so that the justice system does not come to a complete standstill.

Where there is discomfort, Justice Meyers stated:

“Efforts can and should be made to help people who remain uncomfortable to obtain any necessary training and education. Parties and counsel may require some delay to let one or both sides prepare to deal with unfamiliar surroundings.”

The impact of this Endorsement could not be overstated. The rule that Justice Myers cites (1.08(1)) does not just govern examinations. It governs “any step” in a motion, an application, a status hearing, the oral evidence of a witness and argument at trial, an appeal or motion for leave to appeal, a proceeding for judicial review, and a pre-trial or case conference. Subject to the Superior Court’s recent notice on Expanded Operations, litigation must continue and COVID 19 can no longer be used as a reason to prolong delays.

It is 2020 and the “amorphous risk of abuse” is no longer a “good basis to decline the use of available technology.”