Federal Court Guidance On Virtual Trial Procedure

• Published date: 03 June 2020
• Author: Mr Laurent Massam and Harvey Lim
• Subject Matter: Litigation, Mediation & Arbitration, Strategy, Coronavirus (COVID-19), Trials & Appeals & Compensation, Technology, Litigation, Contracts and Force Majeure
• Law Firm: Gowling WLG

A Federal Court trial previously adjourned as a consequence of COVID-19 will now be heard remotely. In an effort to maintain judicial operations during this time of social distancing, Justice Lafrenière in Rovi Guides, Inc v Videotron Ltd, 2020 FC 637 ordered the hearing of the trial to proceed via videoconference and in doing so, provided detailed directions for how the virtual trial will be conducted. A brief summary of certain aspects of the protocol to govern the conduct of the remote hearing is set out below.

The hearing and document management technology

The hearing of the trial was ordered to continue using the Zoom platform, with particular provisions made in order to have necessary break-out rooms and other suitable technological functionality available as need be.

With respect to document management, in addition to the use of the eTrial Tool Kit database, the Court approved the circulation of documents by email or an agreed-upon file transfer system depending on the file size.

The witnesses and their examinations

The Court held that subpoenas were not required and proposed witnesses will instead be treated as if under subpoena for the purposes of making alternative arrangements if they fail to appear by videoconference. While giving evidence, a witness is expected to comply with a specific protocol set out by the Court aimed at ensuring that the witness can be seen and heard, and is not being assisted by documents, scripts, notes or another person. Counsel who intends to call a witness must advise the witness of this protocol, and provide them with a copy of the "Handout for Witnesses" attached to the decision as Schedule "A".

Additionally, the Court set out a specific protocol for documents to be put to witnesses during the hearing. The protocol provides guidelines for preparing a brief of documents, including a document naming protocol that all documents be labelled with the "FC number" identified in the trial database and, insofar as it is feasible, be in PDF format with Optical Character Recognition (OCR) technology applied.

For examinations-in-chief, a copy of any documents intended to be put to a witness must be distributed to the witness and other trial participants prior to the witness' testimony.

For cross-examinations and re-examinations, counsel may choose any one or more of the following methods of putting a document to a witness:

1. Transfer individual documents immediately prior to such time as the party intends to put the document...