By: Jenna Sabroe, University of Alberta Law Student
The COVID-19 pandemic created various barriers to access to justice within the realm of civil litigation. Courts became bogged down, lawsuits faced significant delays in proceeding, and social distancing mandates created difficulty in progressing files through the traditional discovery processes. Despite these hardships, there was also an unexpected benefit that arose from these barriers – the legal system had to be creative – and the area of civil procedure was advanced in this process.
Virtual examinations for discovery were one way that the legal system was creative in adapting to the difficulties brought forth by the pandemic. The practice of conducting examinations for discovery virtually was introduced as a means to allow for files to continue to progress through the discovery process while decreasing the risk of exposure to COVID-19 for the participating parties, and while allowing compliance with social distancing recommendations/mandates. As the legal system began to transition back to its pre-COVID procedures, virtual examinations were something that stuck, and an evolving body of case law has been developing in support of this practice continuing within the post-COVID context.
Arconti v Smith
Arconti v Smith is a leading case that speaks to the appropriateness of virtual examinations for discovery. In this case, the Ontario Superior Court of Justice was posed with the question of whether an endorsement ought to be made to require a Plaintiff to be examined via videoconference instead of in person.[1] Due to the state of the pandemic at the time of the decision, in-person questioning could not be immediately conducted, and failing to proceed with a virtual examination for discovery would result in significant delays to the action, and would necessitate pushing the trial date back.[2] Despite this, the Plaintiffs objected to questioning via videoconference for various reasons, including: (1) they wanted their counsel to assist with documents during the examination; (2) witness demeanour is difficult to assess virtually; (3) the solemnity of an oath is diminished in the virtual setting; and (4) the Plaintiffs did not trust the Defendant to not abuse the process.[3]
While Myers J. recognized the concerns of the Plaintiffs, he nonetheless held that “[w]e now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance.”[4] Myers J. held that the purpose of examination for discovery was not for demeanour assessments and that this concern was therefore not a factor in his determination. After a review of the relevant case law, Myers J. determined that discomfort and unfamiliarity with the new technology ultimately underlined many of the Plaintiff’s concerns, and the perceived risks which were associated with this did not outweigh the benefit of continuing litigation.[5] With respect to concerns about abuse of process, Myers J. held that while the risk was present, it was amorphous and did not provide sufficient basis to ground a denial of the use of available technology in this case.[6]
Kaushal v Vasudeva et al.
A year after the Arconti decision was released, the Ontario Superior Court was directly faced with one of the concerns that was raised in that decision: virtual examination for discovery creates an opportunity for a party to abuse the process. In the Kaushal case, the respondent was found to have received off-camera coaching by way of facial expressions and gestures during his questioning.[7]
Gilmore J. spoke of the “inevitable future of virtual examinations” as a tool post-COVID, and how this reality puts the judiciary in the role of gatekeepers to ensure the tool is not misused to undermine the legal system.[8] In this decision, it was found that using virtual examinations as a tool to interfere with the fact-finding function of examinations for discovery amounts to an abuse of process that cannot be tolerated, and warrants a strong punishment that is typically reserved for the most egregious cases.[9] This case suggests that virtual examination for discovery is here to stay and that the judiciary must be prepared to respond to and deter the mischiefs that arise as a result.
Worsoff v MTCC 116
The decision in Worsoff v MTCC 116 also implies that virtual examination for discovery is a procedure that will remain in civil litigation beyond its necessity because of the pandemic. The Worsoff decision grapples with weighing of counsel’s preference for in-person examinations for discovery against the increased access to justice that is achieved by way of virtual examination for discovery. Concerning the balancing of the two, Myers J. stated that:
Efficiency, affordability, and enhanced access to justice trump counsels’ comfort and presumptions every time. With the current pace of change, everyone has to keep learning technology. Counsel and the court alike have a duty of technological competency in my respectful view. Older judges and counsel may be behind younger counsel and the rest of society who use computers with greater regularity and sophistication than we do. But everyone in the civil litigation system in Ontario has had to learn to use the Civil Submissions Online portal and Caselines for example. Technological change affects everyone.[10]
The Court went on to attribute virtual proceedings arising from the pandemic as “one of the first significant enhancements in access to justice since Hyrinak,”[11] and state that we should not go back to pre-COVID procedures because virtual examinations for discovery have the capability of making meaningful improvements to access to civil justice.[12]
Scott v Fresh Tracks (Canada) Inc.
Finally, the 2023 British Columbia Superior Court decision of Scott v Fresh Tracks (Canada) Inc.confirms that accessibility concerns are valid reasons to request virtual examinations for discovery. In this case, the Court found that in the absence of evidence that virtual examination would be less effective, virtual examination is appropriate where it would save a party substantial out-of-pocket expenses.[13] In his decision, Master Bilawich confirmed that credibility assessments were not a valid reason in support of virtual examinations being less effective and that this does not offset the benefits posed by conducting these matters virtually.[14] This decision indicates that increasing accessibility to civil justice is sufficient reason to continue virtual examinations in present day.
Conclusion
These cases implicitly signal that accessibility within the civil law system is a consideration that carries significant weight in advancing the case law. The case law has been consistent in holding that the efficiency and cost-saving features of virtual examination for discovery are significant in determining the appropriateness of this mode of questioning. Where mischief has been recognized, or arisen on the facts because of examination for discovery being conducted virtually, the courts have directed that this is not a reason to abandon the practice of virtual questionings, but rather, a signal to judges to safeguard the process through imposition of harsh penalties as a means of deterrence. The message sent by this series of case law is clear: accessibility to justice in civil law is not going to be sacrificed lightly, litigators have keep up with the technological advancements or they will get left behind, because virtual examinations are not going anywhere anytime soon.
[1] Arconti v Smith, 2020 ONSC 2782 at para 1.
[2] Ibid at para 20.
[3] Ibid at para 18.
[4] Ibid at para 19.
[5] Ibid at para 40.
[6] Ibid at para 26.
[7] Kaushal v Vasudeva et al., 2021 ONSC 440 at para 51.
[8] Ibid at para 56.
[9] Ibid at paras 59-65.
[10] Worsoff v MTCC 1168, 2021 ONSC 6493 at para 32.
[11] Ibid at para 35.
[12] Ibid at para31
[13] Scott v Fresh Tracks (Canada) Inc., 2023 BCSC 1724 at para 41.
[14] Ibid at para 38.