“It’s 2020”: Court Rejects Objections to COVID-19 Prompted Videoconferencing
The COVID-19 pandemic has required all of us to make adjustments – and the judicial system is no exception. With the virtually-comprehensive closure of the province’s courthouses in compliance with social distancing mandates, courts have had to avail themselves of technology like videoconferencing, to accommodate the hearing of urgent matters.
But not all litigants are on-board with this adjustment, and some have objected on the basis that it impairs their ability to obtain justice.
In a recent Case Conference hearing before a judge in a matter called Arconti v. Smith, some of the litigants objected to having the Examination of a witness proceed remotely by videoconference, rather than in person. They wanted to delay the proceedings until the requirement for social distancing had ended. Their concerns about videoconferencing included the following:
- They needed to be with their counsel to assist with documents and facts during the examination;
- It is more difficult to assess a witness’s demeanor remotely;
- The lack of physical presence in a neutral setting deprives the occasion of solemnity and a morally persuasive environment; and
- They did not trust the opposing parties not to engage in “sleight of hand” to abuse the process.
The court rejected all of these concerns, finding they did not warrant granting the requested delay. Noting that videoconferencing could be used as a tool to keep the matter moving, it stated:
In my view, the simplest answer to this issue is, “It’s 2020”. 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.
The court acknowledged the concern that the abuse of technology was always a risk: it speculated that a witness could wear a Bluetooth hearing device and receive improper prompting while giving evidence, for example. But the court noted that “People can also send hand signals to witnesses in court as well.” It concluded that an “amorphous risk of abuse” was not a good basis for declining to use the technology that was available.
The court also noted that the Rules of Civil Procedure, which govern how lawsuits are conducted in the province’s courts, has already provided for videoconferencing for more than 20 years, and allows courts to opt to use such methods on its own initiative, even over the objections of one or more of the parties themselves. It added:
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.
That said, the court acknowledged that some accommodation might realistically be necessary, to allow all parties in some extra time to adjust:
In my view, 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. However, the need for the court to operate during the pandemic has brought to the fore the availability of alternative processes and the imperative of technological competency. 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.
With these words, the court ordered that the Examination could proceed by videoconference in the case.
For the full text of the decision, see:
Arconti v. Smith, 2020 ONSC 2782