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'It's 2020': Examinations via Videoconference

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Article Summary

In Arconti v. Smith, Justice Myers confirms an Examination For Discovery will be completed via videoconference, instead of waiting for physical distancing requirements to be relaxed.

Arconti v. Smith, 2020 ONSC 2782 (CanLII), http://canlii.ca/t/j6wzr

[17]     During the case conference Mr. Bastien advised that his clients did not wish the examination for discovery of Mr. Fenton to proceed by videoconference. However, in light of the implementation of social distancing in response to the pandemic, conducting an in-person examination at this time is not possible. Therefore, they request a delay in the proceedings until the requirement for social distancing is ended.

[18]     The plaintiffs object to a videoconference examination because they maintain:

a.   that they need to be with their counsel to assist with documents and facts during the examination;

b.   it is more difficult to assess a witness’s demeanour remotely;

c.   the lack of physical presence in a neutral setting deprives the occasion of solemnity and a morally persuasive environment; and

d.   the plaintiffs do not trust the defendants not to engage in sleight of hand to abuse the process.

Analysis

[19]     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.

[20]     That is not to say that there are not legitimate issues that deserve consideration. Technology is a tool, not an answer. In this case, the parties cannot attend in the same location due to health concerns and governmental orders. So, the question is whether the tool of videoconference ought to be required  to keep this matter moving or if the mini-trial ought to be delayed further due to the plaintiffs’ desire to conduct an examination for discovery in person.

[21]   The Rules of Civil Procedure, RRO 1990, Reg. 194, that govern how lawsuits are conducted, have provided for videoconferencing for more than 20 years. In 1999, Rule 1.08 was added to the Rules as follows:

1.08 (1) If facilities for a telephone or video conference are available at the court or are provided by a party, all or part of any of the following proceedings or steps in a proceeding may be heard or conducted by telephone or video conference as permitted by subrules (2) to (5):

1. A motion (Rule 37).

2. An application (Rule 38).

3. A status hearing (Rule 48.14).

4. At trial, the oral evidence of a witness and the argument.

5. A reference (Rule 55.02).

6. An appeal or a motion for leave to appeal (Rules 61 and 62).

7. A proceeding for judicial review.

8. A pre-trial conference or case conference.  O. Reg. 288/99, s. 2; O. Reg. 24/00, s. 1; O. Reg. 438/08, s. 3 (1).

(2) If the parties consent to a telephone or video conference and if the presiding judge or officer permits it, one of the parties shall make the necessary arrangements.  O. Reg. 288/99, s. 2.

(3) If the parties do not consent, the court may, on motion or on its own initiative, make an order directing a telephone or video conference on such terms as are just.  O. Reg. 288/99, s. 2; O. Reg. 438/08, s. 3 (2).

(4) The judge or officer presiding at a proceeding or step in a proceeding may set aside or vary an order made under subrule (3).  O. Reg. 288/99, s. 2.

(5) In deciding whether to permit or to direct a telephone or video conference, the court shall consider,

(a) the general principle that evidence and argument should be presented orally in open court;

(b) the importance of the evidence to the determination of the issues in the case;

(c) the effect of the telephone or video conference on the court’s ability to make findings, including determinations about the credibility of witnesses;

(d) the importance in the circumstances of the case of observing the demeanour of a witness;

(e) whether a party, witness or lawyer for a party is unable to attend because of infirmity, illness or any other reason;

(f) the balance of convenience between the party wishing the telephone or video conference and the party or parties opposing; and

(g) any other relevant matter.  O. Reg. 288/99, s. 2; O. Reg. 575/07, s. 1.

[22]     Initially, an order for the use of remote proceedings required the consent of all parties or, in the absence of consent, that a party bring a motion. In 2008, Rule 1.08(3) was amended to enable the court to require remote proceedings at the court’s own initiative. 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.

[23]     Rule 1.08(1) is written very broadly. It allows for the use of remote technology in any step in a motion, application, trial, etc. I have no hesitation finding that an examination for discovery ordered in association with a mini-trial of a summary judgment motion is a step in a motion and a trial.

[24]     Looking at the factors in Rule 1.08(5), the general principle that evidence should be provided in court has never applied to examination for discovery or examination of a witness for a pending motion. Neither is demeanour a factor in this case. The transcript of an examination for discovery of Mr. Fenton can only be used by the plaintiffs. Discovery transcripts are used for admissions not for demeanour.

[25]     I do not dismiss the concern for abuse of the technology by a party who might be so inclined. It would not be difficult, for example, to put a person or another computer screen outside the field of view of the camera that could enable improper prompting of the witness. I suppose with current Bluetooth technology, even where parties are in the same room, a witness can wear a hearing device and readily receive improper prompting. People can also send hand signals to witnesses in court as well.

[26]     While it is important to remain vigilant against the risk of fraud and abuse, I do not believe that we have yet reached a point where we presume it either. This is especially the case where a lawyer is to be examined. While no one is immune from cheating, regulated professionals must maintain professional ethics and have their licenses at risk. Their professional reputations are their lifeblood. While the court remains open to receive evidence of abuse of any examination or other process in a lawsuit, and should deal strongly with any proven abuse, I do not think an amorphous risk of abuse is a good basis to decline to use available technology.

[33]     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. I note that Morgan J. held the case conference last month not long after the Chief Justice announced the restriction of court operations, and that he adjourned the hearing of the motion to late June. Whether he is asked for or grants further adjournments at that time remains to be seen.

[43]     I agree but with this proviso. 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. As noted above, it is just a tool. It does not produce perfection. But neither is its use as horrible as it is uncomfortable.

[44]     In my view, the plaintiffs’ concerns with the prospect of conducting an examination remotely do not outweigh the desirability of proceeding with this matter and do not justify further delay. These actions have been outstanding for several years. The defendants are entitled to have their motion heard just as the plaintiffs are entitled to seek compensation. The plaintiffs’ concerns, in the main, are soluble either by creative alternatives or by increased familiarity with the technology. I do not accept that anything will be lost that is not more than offset by the proportionality of proceeding efficiently and affordably.

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