Virtual Court Hearings: Putting Them into Practice

April 17, 2020 Paul Emile Trudelle Litigation Tags: , , , 0 Comments

Virtual court hearings are becoming the new norm. More and more, the courts are prepared to proceed without the physical attendance of counsel or the parties.

Recently, the Divisional Court made a detailed Case Management Endorsement setting out how a hearing was to proceed. The case, Ontario v. Association of Ontario Midwives, is to proceed as a 3-day hearing before a 3-judge panel. Particulars of the procedure to be followed include:

o   The hearing is to be conducted as a Zoom conference;

o   Counsel are not to gown. Instead, business attire is required for anyone with a speaking role at the hearing. Although babies and dogs are not specifically prohibited from participating, the court directed that “All parties must ensure that they participate in the videoconference from appropriate surroundings and that they (and the Court) will not be interrupted or disturbed during the hearing.”;

o   Specific directions with respect to the filing of electronic materials are provided. These include:

·      No individual email can be larger than 10 MB;

·      All affidavits and each exhibit are to be sent as separate pdf attachments, and are to be clearly identified;

·      Factums are to be filed in Word format; and

·      Books of Authorities are not required. However, Factums should have hyperlinks to CanLII versions of cases;

o   The hearing is to follow a “webinar format” and will accommodate up to 500 members of the public. Particulars will be confirmed to the parties in due course by the court. (It is not clear how the public is to find out the particulars: see Stuart Clark’s blog on open courts and E-Courts, here.)

Virtual hearings, while becoming more common, have not yet become universal or mandatory. In an endorsement dated April 14, 2020, Justice Morgan addressed a proposed 2-day virtual hearing for May 4 and 5, 2020. The Defendants wanted to proceed, but Plaintiffs’ counsel was “reluctant”. Plaintiffs’ counsel argued that the materials were voluminous, and this would create logistical difficulties for counsel. Further, they would not be able to have their entire team together in the same room in order to provide the support required during the hearing. The hearing, seeking leave to proceed with a class proceeding, could spell the end of the Plaintiffs’ and the class’s claim if not successful, and counsel did not want to put their client and putative class members at risk in what would be “a rather novel format for a complex and lengthy motion with a heavily documented record.”

While the court did not want to delay the litigation, it did not require that the matter proceed by way of a virtual hearing. Per Morgan J., “…I do not think it appropriate to compel the moving party to proceed under conditions where Plaintiffs’ counsel perceive that they may not be able to present the case as effectively as they would in person.”

Sometimes you Zoom, sometimes you don’t.

Paul Trudelle

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