Worsoff v MTCC is a recent case out of the Ontario Superior Court of Justice that addressed the process for objecting to a method of discovery. Notably, it is a case that also addressed the current status of virtual examinations for discovery in the present climate and gives some insight into whether they will remain the status quo.

In this case, the plaintiff had served notices of examination indicating that that the examinations for discovery of the representatives of the defendant be in-person, at an official examiner’s office. The defendant objected to the method of examination, preferring that the examinations proceed by video conference. The defendant’s own notice of examination required the plaintiff to attend virtually.

The key question before Justice Myers in Worsoff was the forum for these examinations for discovery. The COVID-19 pandemic had necessitated the amendment of a Rule in the Rules of Civil Procedure, RRO 1990, Reg 194 governing the method of attendance for a hearing. Under the amended rule — Rule 1.08(1) — you can attend either in-person, virtually, or via telephone. Furthermore, according to the Rules – Rule 1.08(8) — an examination for discovery must proceed under one of these three methods. If one side objects to the method, then the Rules require that the parties request a case conference for an order from the court directing the method of attendance. One was requested and held the following day:

Next, Justice Myers applied a set of factors when determining what method of attendance ought to be ordered at the examination for discovery. These factors are set out in Rule 1.08(6) the Rules and are as follows:

(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.

He then looked at the factual circumstances of the situation and of the parties and the nature of examinations for discovery and compared them against these factors to determine what the method ought to be. Their analysis notably included:

  • The fact that technology was not an issue at all. Both parties had available computer resources and bandwidth, with an option for redundancy (if clients had computer issues, they could sit in a boardroom at their lawyer’s offices with a computer)
  • In examinations for discovery, there typically isn’t an issue with presenting evidence and argument as you don’t really do either during one. The court however did note that if there was a real credibility issue (for example, the examination had a particular emphasis on credibility or if there was a need to control the witness through strong cross-examination techniques) then the argument for an in-person examination would have been stronger
  • Examinations for discovery, though important, are usually straightforward and routine. Less important evidence need not necessarily be heard in person.
  • The court does not make findings at a discovery. The use of a transcript is all that is available in court after discovery in any event.
  • It was not suggested that the demeanour of a witness would be an issue, nor does the court even observe a witness’ demeanor during discovery
  • One of the lawyers was in Ottawa and it would be a waste to bring him to Toronto for a Simplified Procedure discovery
  • As towards the balance of convenience, the court noted that efficiency, affordability, and enhanced access trumped counsel’s argument that an in-person examination is presumed to be the best way to examine a witness. It was incumbent on Counsel to adhere to a duty of technological competency.

He also noted that an examination for discovery was generally a routine step that could be delegated to junior counsel, and that the product of an examination for discovery (the transcript) often sees limited use in trials in any event. The degree of difference in methods in such a routine step was considered unimportant by the court.

Justice Myers did not agree that examinations for discovery need to default to in-person attendance because it was better. Counsel and parties could agree before-hand on the matter, and use of the factors could be used to solve disputes.

Finally, the justice did have some other things to say about the nature of this entire process.

First, it should be understood that calling a case conference to determine the method of attending an examination for discovery is not supposed to be a drawn-out affair, but rather a quick, decisive event. Attempting to use such a case conference as a stall tactic is unlikely to be looked at favourably by the court.

 Decisions under Rule 1.08 should be available quickly and with little expense to avoid creating yet a further process step to bog down civil actions. The decision of which method of attendance applies to a step in a proceeding short of trial is of little consequence in most cases. It should be the subject of agreement among counsel or a quick, summary determination on little if any material.

Second, if a party intends to object to a method of attendance, they better have a good reason or risk the ire of the court.  

 In the vast majority of cases, the method of attendance at an examination for discovery should be a matter of agreement. A party who insists on a particular method should have a good reason for declining to cooperate when someone else puts forward an alternative preference supported by a reason. In my view, parties are hard-put to show that there is a difference that actually matters practically in most examinations for discovery.

And the burden of coming up with a good reason does not necessarily fall on the party objecting, particularly if their method of attendance is the more reasonable one. For example, in the case here, the plaintiff’s could not have argued that it was the defendants as the objectors who had the burden of proving why the plaintiff’s proposed method was not viable.

I do not think it is strictly correct to speak of a burden of proof for a case conference under subrule 1.08 (8)(2)(i). Unlike an in court hearing under subrule 1.08 (1) or setting the time and place of an examination under Rule 34.02, there is no presumptive first right to set the terms followed by an objection process. Subrule 1.08 (8)(2)(i) encourages agreement for the method of attendance at examinations for discovery and mediations. If there is no agreement, the rule allows anyone to ask for a case conference to find the most fit process in the circumstances.

And while the court does emphasize that efficiency, affordability, and enhanced access is key, it should be recognized that the COVID-19 Pandemic played an important factor here. The court’s preference is for remoteness while the pandemic is ongoing, and it was their view that this preference is reasonable all else being equal.

So then, what are the takeaways?

  1. While it is best to agree, parties can object to the method of attendance at an examination for discovery
  2. A case conference will then be held so that the court can decide what method to order
  3. These case conferences are supposed to be quick.
  4. Whether a certain method in particular will be ordered is to be determined on a set of factors
  5. You need a good reason to object to a particular method of attendance
  6. It isn’t the objector’s sole duty to argue why a particular method should or shouldn’t be used.

Admittedly, there are some benefits to in-person examinations for discovery that are absent in virtual ones – the ability to read body language, the lack of zoom fatigue, the ability to confirm that a witness is not engaged in dishonest conduct. However, these are balanced against an increase in participation, reduction in time taken, and an increase cost-efficiency – all of which increases access to justice, which is a well-recognized problem in the civil justice system.

Ultimately, Justice Myers ruled that the examinations for discovery should proceed virtually. If Worsoff v MTCC is any indication, the courts certainly have a preference for the option that increases access to justice. It would appear that virtual examinations for discovery are here to stay – at least while we are amidst the pandemic, but certainly with the potential to become a permanent fixture!

 All of these issues have been canvassed elsewhere. The state of the art is evolving. Some real changes are happening with the potential to actually improve access to civil justice for the public. I do not accept that the pandemic is over so we should all just go back to the way it was. That assumes that the “good old days” were actually good.

Branson Wong is the author of this blog and articling student at the firm. If you  have a question about this blog or a similar file, please contact Branson at 416-777-2811 etx 5297