The Show Must Go On: Using Technology In Litigation by Jennifer Griffiths and Nathan Fabiano

By Jennifer J. Griffiths May 06, 2020

The decision of Justice Fred Myers in Arconti v. Smith, 2020 ONSC 2782 highlights the rapidly evolving role of technology in moving court proceedings forward both during and after the current pandemic.

Background

In 2013, the Ontario Securities Commission found that the plaintiffs had committed securities fraud, a decision which was upheld on appeal to the Divisional Court. The plaintiffs then sued their lawyer and his partner, alleging that negligence and other breaches by counsel had resulted in the adverse outcome.

The defendants moved to strike one ground of liability (successfully) and moved for summary judgment with respect to allegations that the defendant lawyers had failed to provide adequate advice during pre-trial settlement negotiations before the OSC proceeding

Justice Myers dismissed certain claims under Rule 21 by way of reasons dated January 27, 2020, but ruled that a “mini-trial” was required to determine if summary judgment was warranted with respect to the balance of the allegations. He later directed that the plaintiffs would be permitted to some further examination for discovery of the defendants before trial, with the date for that being set for May 6, 2020, prior to the May 27 trial date.

Between January 27 and May 6 the pandemic occured which conspired to make the May 6, 2020 examination for discovery impracticable to conduct in person.

A case conference was held on May 1 to address trial readiness, at which point Justice Myers advised the parties that the May 27 trial date would not proceed as scheduled but would be rescheduled to take place in the near future.  Counsel for the plaintiffs indicated that his clients did not wish the examination of the defendant to take place remotely and raised a number of objections to proceeding by videoconference including: the plaintiff’s desire to be present with counsel during the examination, concerns around assessing credibility, the lack of a formal, neutral venue, and concerns that the defendants might engage in “sleight of hand to abuse the process.”

Result

While recognizing that there are “legitimate issues that deserve consideration” around conducting an examination by videoconference, Justice Myers soundly rejected the plaintiffs’ position, addressing each of the their arguments in general terms - and then with reference to the nature of the case before him. The plaintiffs were ordered to conduct the examination of the defendant virtually on May 6, 2020, or forfeit their opportunity to conduct that examination prior to the mini-trial.

Rationale

In reaching his decision, Justice Myers led with his observation that, with or without the challenges imposed by the Covid-19 pandemic, 

It's 2020. We no longer record evidence using quill and ink. We do not even teach children to use cursive writing in all schools anymore. We now have the technological ability to communicate remotely effectively. Using this technology is more efficient and far less costly than personal attendance. We should not be going back.

The analysis underlying the decision started with amendments to the Rules (Rule 1.08) beginning in 2008, which first permitted - and then facilitated - certain parts of a lawsuit to be conducted by telephone or videoconference either with the consent of the parties or without, reflecting “an evolution of the acceptance of the use and perceived value of remote communication technology.”.

Justice Myers was conscious of the concern for the abuse of technology. While it is important to remain vigilant against the risk of fraud and abuse, he did not believe that we ought to presume it or use this possible and general risk as a reason not to use available technology. While accepting the “good argument” that a videoconference conducted from the witness’ home may not create an environment fully conducive to giving solemn evidence under oath, he appeared to weigh this consideration against other factors and the overarching objective of moving the litigation to an efficient conclusion.

Justice Myers also considered whether there were “due process” concerns for the unsuccessful party who might argue a disadvantage arising from the use of technology over an in-person hearing.  He rejected this argument outright, stating, “All parties have the same opportunity to participate and 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.”  In other words, the core competencies of a litigator can be exercised in person or by videoconference – 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.”

And here, Justice Myers throws down the gauntlet and sketches out what our future as litigators looks like.  With or without COVID-19, technology in the courtroom is here to stay.  Justice Myers hints at a dark future if we do not take immediate steps to adapt to these changes. Bluntly, he admonishes that, ‘in 2020, use of readily available technology is part of the basic skillset required of civil litigators and the courts and, unlike the pandemic, did not arise on the sudden.” 

Takeaway

How we litigate is changing quickly, catalyzed but not necessarily directed by the social distancing measures required as a result of the current pandemic.

Motion materials can now be filed electronically. Pre-trials can be conducted from our home offices over platforms such as Zoom. Divisional Court hearings are being broadcasted live over YouTube.

Technological competence has now become an essential skill for litigators. Litigators must become familiar with technology, and counsel must work together to ensure that matters proceed during this pandemic.

We must be cognizant of the changes that videoconferencing bring to how we litigate, whether it be the inability to read a witness’ body language during cross-examination, or being vigilant in anticipating privacy and security issues while using various virtual platforms. One participant in a virtual Divisional Court Hearing has already commented about how much easier it was to both hear the judge's questions relative to doing so in the caverous courtrooms of Osgoode Hall, and also read facial expressions of judges, where the cameras provide a much closer view than one would get if appearing in person. Whatever the sum will be of the net positives and net negatives, we must adapt to these changes and ensure that we are ready, willing, and able to move court proceedings forward with the use of technology.

While this decision suggests that the court will look for ways to move matters forward during the period of social distancing (and beyond), it also leaves room to exempt parties from using virtual platforms for reasons relating to the complexity or dynamic of a particular case.  However, this decision sends a strong signal that, at least as far as this particular judge is concerned, ignorance of the technology is no excuse.

Jennifer Griffiths (partner) and Nathan Fabiano (student-at-law) are co-authors of this blog. If you have questions about this decision or about the use of technology in litigation, please contact Jennifer at 416-777-5245 or Nathan at 416-777-2811 ext. 7975

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