Adopting Remote Processes, Adapting to Win
While remote communication has become the norm for many, there continues to be resistance to using technology in the legal sphere. A recent decision by Justice Myers of the Ontario Superior Court of Justice suggests that, in 2020, the court will not easily acquiesce to such resistance.
In Arconti v. Smith, the plaintiffs sued their former lawyer and his partner for negligence, breaches of duty, and other causes of action in connection with the lawyer’s representation of the plaintiffs in a securities fraud case. In January 2020, Justice Myers ruled that a focused mini-trial was required to determine if summary judgment ought to be granted with respect to one of the issues. In a later case conference, he agreed with the plaintiffs that they should be entitled to further examination for discovery of the defendants prior to the mini-trial. An examination of one of the defendants was then scheduled for May 6, 2020.
However, at a case conference held on May 1, 2020, counsel for the plaintiffs advised that his clients did not want the examination of the defendant to proceed by video conference. He argued that because in-person examination is not possible due to the implementation of social distancing in response to the pandemic, the proceedings should be delayed until the requirement for social distancing is ended. The plaintiffs objected to a videoconference examination on the bases that:
- they need to be with their counsel to assist with documents and facts during the examination;
- it is more difficult to assess a witness’s demeanour remotely;
- the lack of physical presence in a neutral setting deprives the occasion of solemnity and a morally persuasive environment; and
- the plaintiffs do not trust the defendants not to engage in sleight of hand to abuse the process.
In his case conference endorsement, 2020 ONSC 2782 (the “Decision”), Justice Myers dealt with the issue of whether the plaintiffs ought to be required to conduct an examination out-of-court by video conference rather than in person. He ultimately held that if the plaintiffs wish to take advantage of the opportunity to examine the defendant out-of-court, before the upcoming mini-trial, they must do so remotely by video conference. The general sentiment of Justice Myer’s reasons is captured in paragraph 19 of the Decision:
“In my view, the simplest answer to this issue is, “It’s 2020”. We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools anymore. We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.”
Justice Myers further explained that the use of readily available technology is a necessary component of a civil litigator’s basic skillset. Like other tools at a lawyer’s disposal, technology does not produce perfection and parties ought to remain vigilant to the risks and shortcomings associated with remote processes. However, one’s own unfamiliarity with the technology is not a good basis to decline to use available technology, particularly where remote processes can help move a proceeding forward more efficiently and affordably.
As the Decision suggests, justice will not be served by sitting and waiting for the pandemic to pass. We must learn to accept our circumstances and adapt to the new normal. As Max McKeown wrote, “adaptability is about the powerful difference between adapting to cope and adapting to win.” It is becoming increasingly evident that in today’s legal system, adopting technological processes is adapting to win.
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