With Courthouses And Reporting Offices On Lockdown, Litigants Have Been Ordered To Partake In The Virtual Justice System

• Published date: 24 June 2020
• Subject Matter: Litigation, Mediation & Arbitration, Strategy, Coronavirus (COVID-19), Court Procedure, Trials & Appeals & Compensation, Technology, Operational Impacts and Strategy
• Law Firm: Pallett Valo LLP
• Author: Mr Daniel Waldman

Since the legal world entered lockdown with the rest of humanity, many questions have abounded with respect to how the justice system will continue chugging along without boardrooms, courthouses and reporting offices. The main concern - namely, the absence of in-person gatherings has been addressed by telephone and video conferences. Both courts and reporting offices should be commended for agreeing to (and encouraging) the use of technology to allow hearings and examinations to continue.

However, the replacement of in-person affairs with technology has inevitably created another problem. While the technology is available, many litigants have refused to use it and instead are insisting that their hearings and examinations should be postponed until the lockdown ends and physical spaces open up for business again. In those instances, the question becomes whether a party should be forced to conduct litigation electronically when the other side insists on it.

Thankfully, the courts have already addressed this issue on a number of occasions and the answer has often been in the affirmative. Ontario courts at nearly all levels have acknowledged that electronic hearings and examinations and written advocacy may create their own issues and may not be suited to everyone's tastes. Despite this, it has been ordered on many occasions that the system must persevere in the wake of this pandemic and that means parties have been forced to continue with their lawsuits by alternate means even when they actively resist.

Virtual Hearings

In Association of Professional Engineers v. Rew, 2020 ONSC 2589, Justice Corbett of the Ontario Divisional Court was tasked with dealing with an application for judicial review over video conference. The matter dealt with professional discipline, and therefore the issues were important and the stakes were high.

During a case management conference before the hearing, counsel for the Respondent vehemently opposed a virtual hearing and requested that the hearing be adjourned until it could be conducted in-person. Justice Corbett rejected this argument for three principal reasons.

First, his honour noted the courts are "faced with an unprecedented challenge maintaining the institutions essential for the continuation of the Rule of Law in the face of the COVID-19 crisis, and recourse to electronic hearings is a key aspect of the court's response". As such, courts should be making use of this technology where appropriate and consent of both parties...