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Discovery by Videoconference? “It’s 2020”

mai 8, 2020

Motions judge orders discovery of defendant to proceed by videoconference, over plaintiff’s objections

In Arconti v. Smith, Justice F.L. Myers of the Ontario Superior Court heard a motion by the plaintiffs in the underlying civil action to postpone a scheduled discovery of one of the defendants until the requirement for “social distancing” was lifted. The plaintiffs objected to the discovery proceeding by way of video conferencing on the following grounds:

  1. that they need to be with their counsel to assist with documents and facts during the examination;
  2.  it is more difficult to assess a witness’s demeanour remotely;
  3. the lack of physical presence in a neutral setting deprives the occasion of solemnity and a morally persuasive environment; and
  4. the plaintiffs do not trust the defendants not to engage in sleight of hand to abuse the process.

In dismissing the motion, Justice Myers made a number of remarks on the use of technology as part of the civil litigation process, including these memorable opening observations:

[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.

Noting that Ontario’s civil procedure rules have allowed for videoconferencing for more than 20 years, Myers J. opined that the usual rule that evidence should be provided “in court” did not apply to motions; nor was demeanour a factor in this case, since only the transcript of the discovery would be available for use at trial by the plaintiffs in any event. He then opined:

[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.

Justice Myers also took a dim view of arguments regarding the degrees of discomfort that might be introduced into the process by way of using new 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….

[….]

[37]     … just as all litigators have had to learn how to deal with juniors conveying information during an examination or argument in court, there are ways to do the same thing with technology. I note that the Zoom technology, that is currently among the brands being utilized in this court, includes “breakout rooms” in which counsel can meet privately with colleagues and clients. 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.

[….]

[39]     Two points are of note. First, the great fears expressed in case law by those who have never actually used the technology may not be as significant as feared. I agree with this view. However, I also agree with Perram J. and Mr. Bastien, that currently, it does appear that there is some loss of solemnity and personal chemistry in remote proceedings. What is not yet known however, is whether, over time, as familiarity with new processes grows, we will develop solutions to these perceived shortcomings.

[40]     As things stand at present, I do not doubt that there are perceived, and possibly very real shortcomings associated with proceeding remotely rather than in person. However, in this case at least, the benefits outweigh the risks. The most obvious benefit is that litigation will not be stopped in its tracks.

[….]

[43]     … 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.

The discovery was ordered to proceed by way of videoconference on the scheduled dates.

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