Modernization Of The Courts During COVID-19

• Published date: 22 July 2020
• Subject Matter: Litigation, Mediation & Arbitration, Coronavirus (COVID-19), Court Procedure, Litigation, Contracts and Force Majeure, Operational Impacts and Strategy
• Law Firm: Norton Rose Fulbright Canada LLP
• Author: Mr Mathew Brechtel and James Jeffries-Chung

Litigants and courts alike have faced struggles with handling a new frontier of litigation in the age of COVID-19. However, these challenges have spurred courts to take more decisive steps to modernize and streamline court processes. There have been a number of recent decisions that demonstrate Canadian courts are increasingly willing to adopt more contemporary and efficient methods of proceeding, and we expect at least some of these methods will survive beyond the pandemic.

Courts weigh in on how to run a trial

On May 21, 2020, in Rovi Guides, Inc. v Videotron Ltd. the Federal Court of Canada took an important step forward in its digital evolution, setting the parameters for a remote trial to be conducted by videoconference, following a trial management conference.

The decision gives an indication as to how the Federal Court envisages trials may be conducted in light of the global COVID-19 pandemic. However, none of these considerations are unique to the Federal Court. Parties in the throes of litigation will want to take note of what this decision could mean for their own proceedings and what steps courts are prepared to take to ensure cases are still heard despite the pandemic.

In its decision, the court recognized that there is a balancing act between ensuring the health and safety of court participants and the need to maintain judicial operations. Given the local public health restrictions, the matter proceeded with a remote hearing using the popular Zoom. However, the court provided direction regarding the use of Zoom, including that:

• The registry officer would act as the Zoom 'host' and the trial judge as the 'co-host.'
• The Zoom chat function may not be used for private discussions by the trial participants, but the trial judge and registry officer could use this feature.
• Zoom break-out rooms can be used by the court should a witness need to be isolated.
• Microphones should be muted and video cameras should be turned off at various points of the hearing.
• Members of the public and the media were permitted to view public portions of the remote hearing by requesting a Zoom meeting link from the court.

The court anticipated, and sought to address practical concerns with potential technological issues that could impede the hearing indicating that:

• Counsel must take reasonable steps to ensure they have suitable technology, including internet and audio-visual connections.
• Hardware and software will be tested prior to trial.
• The trial will be adjourned if an...