To be clear, the fact that there are decisions to be made is a very good thing. One of the few benefits of widespread pandemic restrictions has been a significant and unprecedented embrace of technology and the overall modernization of our judicial system. Nevertheless, these changes have created a new area of debate and potential dispute – what litigation events should we continue to do virtually and what aspects of the process should take place in person?
Justice Morawetz, Chief Justice of the Superior Court, recently released a set of “presumptive guidelines” to determine the mode of proceedings in civil matters. Many of the directives are in no way controversial. For example, the default position for Trials is that they should proceed in person. At the other end of the spectrum, scheduling courts (where one usually does far more travelling and waiting, than advocating), will remain virtual, resulting in a significant reduction in the time and expense associated with these relatively simple matters. Motions and Case Conferences will be (predominantly) virtual, and the vast majority of the time, this should also result in improved efficiency, at no cost to the administration of Justice.
Some of the Chief Justice’s directives, however, are not as simple, most notably that Examinations for Discovery and Mandatory Mediations should proceed in person (unless the parties consent or the Court orders otherwise), but Pre-Trial Conferences are to proceed virtually.
Members of the personal injury bar will remember that at the start of the pandemic, some insurers refused to participate in virtual Discovery, although that position was quickly rejected by the Courts. While there was initially some concern that counsel wouldn’t be able to meaningfully examine the other side via videoconference, these fears were largely unrealized. For instance, concerns about the potential for off-camera “coaching” of witnesses were largely unfounded. In my experience, it is quickly apparent when someone’s attention is drawn away from their screen, for whatever reason, which is actually more of a distraction than anything helpful. In my practice, I see that lawyers are able to conduct virtual Discoveries with ease, asking all their questions and assessing credibility, just as they have always done. Similarly, at virtual Mediations, positions can be articulated and offers exchanged, but the participants are no longer under pressure to finish negotiating in time to catch their preferred train home, which sometimes artificially interrupts the process.
The benefits of virtual proceedings are clear, so why is the directive drafted in such a way that it seemingly allows one party to force a Discovery or Mediation to proceed in person? We are given no guidance as to what factors the Court will consider if (read: when) there is a dispute. If there are multiple parties, and all but one consent to proceed virtually, can that one party force everyone to attend in person? And at whose expense? How far can one party force another to travel to attend in person before it is deemed more reasonable to proceed online – from Toronto to Brampton? London? Ottawa? Can an accident victim seek to proceed virtually because their injuries make travel more difficult? What about file events scheduled during the cold and snowy winter months when travel could be hampered by bad weather and dangerous conditions?
Perhaps the biggest question of all concerns the rationale behind the recommendation to conduct Discoveries and Mediations in person, but to hold Pre-Trial Conferences online. If the thinking behind having Discoveries and Mediations in person is because physical proximity is more likely to lead to meaningful discussions and increase the prospects of resolution, how do we explain the decision that the last formal settlement opportunity before a case goes to Trial (the Pre-Trial Conference) is to be conducted online? That proximity to Trial, combined with the much larger volume of Discoveries and Mediations, might lead one to argue that the default mode of proceeding ought to be exactly the opposite (i.e. Discoveries and Mediations virtual, Pre-Trials in person).
The truth is that there is no “one size fits all” solution. Most Discoveries and Mediations can be conducted virtually, but some would still be better off completed in person, sometimes owing to the nature of the case, the number of parties or for other reasons. One hopes that counsel will be flexible and exercise common sense to allow for the efficiencies of virtual proceedings much of the time while still recognizing that in other instances, being together in a room adds enough value to make it worth the time and expense.
Unfortunately, in the absence of any specific guidelines, these issues will likely cause some confusion and inconsistency in the short term. If there is a silver lining, it’s that it likely won’t be long before a Motions Judge is being asked to settle a new form of disagreement – where and how are we going to continue this dispute?
