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Case Study: Arconti v. Smith
Defence + Indemnity

Courts are granting opposed orders for video hearings, including discoveries by video conference as necessary in the modern age, especially in light of restricted court operations due to the COVID-19 pandemic.   

Arconti v. Smith, 2020 ONSC 2782, per Myers, J.

Facts + Issues

The litigants were suing their counsel Smith and Fenton for negligence in the litigation of an Ontario Securities Commission matter where the plaintiffs were found liable. The Defendant lawyers had one of the grounds alleged against them struck and applied for summary judgment on the second ground. In January 2020, The Court held that a mini-trial was required to determine if summary judgment ought to be granted. This was partially based on the Court’s conclusion that “the out-of-court examinations of the experts did not provide [the Court] with the confidence needed to make findings” in the context of a summary judgment application. The Court also held that the plaintiffs were entitled to further examination for discovery of the Defendant Fenton, which was scheduled for 6 May 2020.

By the time of a case conference, prior to the mini-trial, in-person discovery was not possible because of social distancing requirements arising from the COVID-19 pandemic. The Plaintiffs took the position that Fenton’s discovery ought not to occur by video conference and that the matter should be delayed until the need for social distancing ended. The Court summarized their objection to video conference discovery as follows:

[18]     The plaintiffs object to a video conference 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.

HELD: For the Defence; if the Plaintiffs wish to take advantage of the opportunity to examine Fenton before the upcoming mini-trial, they must do so remotely by video conference on May 6, 2020  (the originally scheduled date)

  1. The Court noted that Rule 1.08 of the Ontario Rules of Civil Procedure have provided for video conferencing for more than 20 years.
    1. Meyers, J. held that although Rule 1.08 has never been applied to examination for discovery, demeanour at discovery is not a factor. The Court held that “[t]he transcript of an examination for discovery of [the witness] can only be used by the plaintiffs. Discovery transcripts are used for admissions not for demeanour”. (para. 24)
  2. The Court acknowledged the possibility for abuse at a video discovery, e.g. the ability to prompt a witness from outside the camera’s field of view but noted that such abuse should not be presumed:

[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.

  1. The Court rejected the Plaintiffs’ argument that a video hearing raises “due process concerns”, referring to the recent case of Miller v. FSD Pharma, Inc., 2020 ONSC 2253, per Morgan, J.:

[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.

  1. The Court rejected the argument that in video discoveries a party may not be able to get his or her entire team present in one room to assist the witness, such that junior and senior counsel for a party may not be able to confer among themselves as they could at an in-person discovery. It was held that technology was available for members of a witness’s legal team to confer with each other on the side during a video discovery:

[30]      Counsel’s desire to have his team with him is very similar to the plaintiffs’ concern in this case that they wish to be able to assist Mr. Bastien during the examination of Mr. Fenton.

[36]     First, on the question of whether the examiner needs his or her team (and clients) together, Perram J. [in the Australian case of Capic v Ford Motor Company of Australia Limited, [2020] FCA 486] wrote:

Secondly, senior counsel for the Respondent raised with me the real difficulty of the practitioners not all being together in one place for the trial. It is common for the people sitting behind counsel to convey useful and sometimes critical information to senior counsel via junior counsel and likewise junior counsel frequently are able to assist senior counsel on the storm-tossed seas. The ability to do this where everyone is in their own home is certainly degraded. However, in the hearing last month to which I have already referred senior and junior counsel who were isolated from each other communicated with one another and independently of me using WhatsApp. In the virtual hearings I have conducted I have communicated with my associates on an instant messaging platform which has worked well. There is the difficulty of document sharing over such a platform which I accept. Receiving whilst in full flight a WhatsApp message with a document attached is not the same experience as having one's gown tugged and a piece of paper thrust into one’s hands. Again, whilst I think this is a poor situation in which to have to run a trial I do not think it means that the trial will be unfair or unjust.

[37]     In other words, 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.

[38]     Perram J. then considered the question of whether one can cross-examine as effectively remotely as in-person and wrote the following:

The Respondent then submitted that the cross-examination of witnesses over video-link is unacceptable. I accept the Respondent’s submission that there are many authorities in this Court which underscore the unsatisfactory nature of cross-examination by video-link: see, eg, [citations omitted] However, those statements were not made in the present climate, nor were they made with the benefit of seeing cross-examination on platforms such as Microsoft Teams, Zoom or Webex. My impression of those platforms has been that I am staring at the witness from about one metre away and my perception of the witness’ facial expressions is much greater than it is in Court. What is different -and significant- is that the video-link technology tends to reduce the chemistry which may develop between counsel and the witness. This is allied with the general sense that there has been a reduction in formality in the proceedings. This is certainly so and is undesirable. To those problems may be added the difficulties that can arise when dealing with objections.

  1. The Court held that the reduction in the solemnity of an in-person discovery is only a temporary problem, as counsel will find ways to deal with that in the modern age:

[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.

  1. The Court concluded that in the modern age, the ability to use the available technology is or should be part of the skill set of counsel and the courts:

[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 video conference 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.

  1. Furthermore, Meyers, J. noted that an increased use of technology is something that legitimately must be resorted to in light of the COVID-10 pandemic, such that the risks of video proceedings are outweighed by the benefits:

[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 forefront 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.

[41]     In Association of Professional Engineers v. Rew, 2020 ONSC 2589 (CanLII) at para. 9, Corbett J. balanced similar concerns in this way:

However, the materials and arguments presented by Mr. Schwisberg do no more than suggest that something may be lost in a video conferenced hearing.  Something will be lost if court business does not continue, as best as can be managed, during the COVID-19 crisis, and I am not persuaded that any of the concerns raised by Mr. Schwisberg justify departing from the processes established under the Directions to the Profession for the continuation of court operations.

[42]     Echoing a concern of Justice Morgan in FSD Pharma, in Capic, Perram J. concluded:

Under ordinary circumstances, I would not remotely contemplate imposing such an unsatisfactory mode of a trial on a party against its will. But these are not ordinary circumstances and we have entered a period in which much that is around us is and is going to continue to be unsatisfactory. I think we must try our best to make this trial work. If it becomes unworkable then it can be adjourned, but we must at least try.

[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.

COMMENTARY: 

For some time the Alberta Rules of Court have provided for electronic hearings (Rule 6.10).  Also, arising from the pandemic, Alberta Courts at all levels have provided for and have been running video hearings.

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