Going to Trial During a Pandemic

September 18, 2020 Paul Emile Trudelle General Interest Tags: , , , 0 Comments

A recent decision of the Federal Court provides detailed instructions for proceeding with a virtual trial.

In a “Direction” found at  Rovi Guides, Inc. v. Videotron Ltd., 2020 FC 637 (CanLII), Justice Lafreniere sets out in some detail how a trial is to proceed over the Zoom platform. The Direction addresses:

  • the technology to be used;
  • document management;
  • counsel preparation to ensure they have the required hardware and software;
  • witness preparation with respect to hardware, software;
  • testimony protocols, including camera positioning, access to documents, and who can be present;
  • how documents are to be put to a witness;
  • what is to happen if there is a loss of internet connection;
  • how objections are to be raised and dealt with;
  • how the principle of “open courts” is to be addressed;
  • testing of the systems before trial;
  • access to Zoom “chat” functions.

The Direction also includes a schedule entitled “Information for Witnesses” which summarizes part of the Direction, and is to be provided to witnesses in advance of their testimony.

The decision is not a “Practice Direction” applicable to all virtual trials. However, it is comprehensive and should be considered by the parties and the trial judge in a case conference prior to the commencement of any other trial.

Justice Lafreniere begins the Direction by setting out the balancing act that the courts must engage in when dealing with trials during these COVID times. “The Court recognizes the importance of reducing the spread of COVID-19 and prioritizes the health and safety of all court participants, including members of the Court, registry staff, counsel, witnesses, stenographers and interpreters. At the same time, the Court must balance the need to maintain judicial operations. Bearing in mind these important factors, it has been ordered that the hearing of this trial continue remotely via videoconference.”

The show must go on. Albeit with a very different script.

Thank you for reading.

Paul Trudelle

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