Videoconferencing and Examinations for Discovery

At the start of the pandemic lockdown, many in-person discoveries were cancelled on the assumption that the lockdown would be temporary. Of course, this did not come to pass and lawyers, in order to keep matters moving, had to move to video conferencing. Of course, many lawyers had to be dragged kicking and screaming into the 21st century. In a brave new work, the current generation of lawyers usually have the most difficult time living in it. As the pandemic continued, the reasons for an in person discovery were shown to be, for the most part, anachronistic.

By now we are all aware of Justice Myers comment in Arconti v. Smith, 2020 ONSC 2782 (CanLII):

 

[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.

 

Justice Myers did go on further to comment on the concerns with proceeding with video conferencing:

 

[31]    Justice Morgan expressed two concerns. First, he found that the use of remote technology would raise “due process concerns” for the unsuccessful party. Second, he expressed his discomfort requiring counsel to proceed where he or she perceives that they may not be able to present their case as effectively as they would in person.

[32]    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. The only possible “unfairness” is a lack of comfort by one counsel that he or she will be at their best in presenting evidence and making arguments using technology. That conflates the two concerns raised by Morgan J.

[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.

The decision by Justice Myers was made at the beginning of the pandemic and at a time of great uncertainty. 

Now that restrictions are being lifted, I have now noticed the inevitable push to move back to the old system of conducting discoveries in person. The grounds are the usual: 

  1. The parties need to be physically with their counsel to assist them with documents during the examination;
  2. It would be difficult to assess a witness’s demeanor or credibility through a video link;
  3. The absence of a neutral setting would reduce the solemnity and a morally persuasive environment required during an examination;
  4. There is a concern that the process will be abused;
  5. Technical issues can adversely impact the process; and
  6. The government is relaxing COVID rules and things are opening (meaning we can go back to the old ways).

I suspect there are many more reasons than I have listed above.

Despite the relaxation of COVID rules, I really see no reason to return to the old way of conducting a discovery unless there are specific reasons to do so. Unless there are cogent reasons for an in-person discovery at the outset or due to concerns that arise during the discovery itself, the standard method of conducting discoveries should likely proceed via video conferencing. The standard refrain that an electronic discovery will lead to a diminished ability to decide credibility is simply not tenable. Credibility is not decided principally by observing the witness. It is what a witness says, not how they appear when saying it, that really matters.

As well, we should not overlook the recent changes to the Rules of Civil Procedure:

 

Method of Attendance at Hearings, etc.

Attendance Before the Court

1.08 (1) A party seeking a hearing or other step in a proceeding that permits or requires the attendance of parties before the court shall, in the forms or other documents required under these rules to be filed in advance of the hearing or step, specify by which of the following methods the party proposes that the parties attend at the hearing or step:

1. In person.

2. By telephone conference.

3. By video conference. O. Reg. 689/20, s. 1; O. Reg. 526/21, s. 1 (1).

Exception, Court of Appeal

(2) This rule does not apply with respect to proceedings in the Court of Appeal, which may be heard as directed by the court. O. Reg. 689/20, s. 1.

Exception, Case Conferences

(3) This rule does not apply with respect to case conferences, which shall be held by telephone conference unless the court specifies a different method of attendance. O. Reg. 689/20, s. 1.

Objection

(4) A party who wishes to oppose the proposed method of attendance shall deliver a notice of objection in Form 1A before the earlier of,

(a) 10 days after the document specifying the proposed method of attendance was served on the party; and

(b) seven days before the hearing or step. O. Reg. 689/20, s. 1.

Objection to be Dealt with at Case Conference

(5) If a notice of objection is delivered, the court shall order a case conference under rule 50.13 to deal with the objection. O. Reg. 689/20, s. 1; O. Reg. 526/21, s. 1 (2).

Method to be Determined by Order

(6) At the case conference referred to in subrule (5), the court shall make an order directing the method of attendance at the hearing or step and, in doing so, the court shall consider, as applicable,

(a) the availability of telephone conference or video conference facilities;

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

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

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

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

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

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

(h) any other relevant matter. O. Reg. 689/20, s. 1; O. Reg. 526/21, s. 1 (3, 4).

 

No Objection

(7) If no notice of objection is filed, the parties are deemed to have agreed to attendance by the proposed method and, unless the court directs otherwise, the hearing or step shall proceed by that method. O. Reg. 689/20, s. 1.

Before these changes, the parties had to consent to proceeding via video conferencing. Rules 1.08 now allows one party to select the method and, if the other party disagrees, then a case conference is required. I suspect that the party opposing the video conference will have to adduce evidence and not simply rely upon the usual grounds noted above. Simply relying upon COVID restriction rules being relaxed will not be sufficient.

Given that we are creatures of habit, I suspect there will be a push to go back to the in-person discovery as the default position. This really should be resisted. Video conferencing has proven its effectiveness and is cost efficient. I do not suggest that there will not be times where an in-person discovery is not warranted. However, I believe that should be the exception to the general rule.

As a final note, if counsel insists upon an in-person discovery, I suggest that you contact counsel to discuss the issue. Counsel may have legitimate reasons for an in-person discovery. Consider those concerns carefully before advising counsel to seek a case conference.

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