Tag: Covid-19 Pandemic
Another recent decision out of Alberta, Thompson v AltaLink Management Ltd, sheds further light on the thinking of Canadian courts and tribunals regarding virtual litigation, going forward.
In this dispute, one party argued that proceedings should occur in-person, rather than virtually. Making an appeal to “common sense,” he noted that (as of August 2021) there were no Covid-related restrictions in Alberta and that one couldn’t predict whether renewed restrictions would be imposed in the future. He also noted the advantages of observing witnesses and decision-makers and their natural reactions first hand.
The other party did not challenge this position, per se, but noted that the participants in the proceeding (including administrative staff) might not yet be comfortable “returning to normal,” risking exposure to infection during the ongoing pandemic.
It was ultimately decided that one party and his counsel would participate from a hotel close to his location in rural Alberta, while all other participants and staff would participate virtually. The degree to which in-person participation was allowed in this case was mainly a technological consideration, however, the overall reasoning in this decision involved a balancing of considerations of fairness of proceedings (favouring in-person) and safety of participants (favouring virtual). The latter consideration was deemed to be of greater significance, in light of Covid.
It remains to be seen when exactly the courts will go back to full in-person litigation, or whether elements of virtual or hybrid proceedings are here to stay. The pertinent question right now is under what circumstances would a party be compelled to attend in person, if they would prefer to remain virtual. Until the pandemic is over, this will likely remain an open question.
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Many in the legal profession are stretched thin when providing legal services during the pandemic. Working from home often blurs the distinction between work and “not-work”. A co-worker recently told me that with her computer on in her kitchen, it is as if she is always working. Adding issues of child-care and home-schooling, or caring for isolated seniors only serves to heighten the complexity of the lawyer’s life.
(Clearly, non-lawyers face these challenges as well: often to a greater degree. Many lawyers have the luxury of being able to continue to work. Others are not so lucky.)
A recent decision of Justice Myers acknowledges the heightened demands on lawyers, judges and court staff during the pandemic, and the effect that these may have on their health and well-being.
Briefly, the case involved a commercial lease issue. The landlord wanted to rent out space in a mall to a call centre. Another tenant in the mall objected, asserting that is had a right to consent to the lease, and that the call centre would change the retail nature of the mall.
The landlord entered into a lease with the call centre that had a conditional period expiring February 1, 2021, in order to allow the landlord to obtain a court determination of the tenant’s claim to a right to consent. A court date was set for January 29, 2021, but counsel for the tenant was not available. A hearing on Saturday, January 30 was proposed by Justice Myers. Counsel for the tenant resisted, saying that “while his firm has conducted a fair bit of work during the pandemic on weekends and evenings, they have ‘been encouraged to be alive to the effects of doing so on younger members of the team who have childcare commitments etc.’”
Justice Myers noted that the court makes efforts to accommodate business transactions and recognizes real-time schedules. However, of significance, the court must also recognize the realities of lawyers’ lives and well-being.
The court takes very seriously issues of health and wellness of practitioners, members of the judiciary, and court staff during the pandemic in particular. While lawyers and the courts are in a service business, there has to be a brake applied to service providers’ willingness to compete themselves (or their juniors) into unhealthy states in the ordinary course of business. Recognizing that young counsel and staff may have other responsibilities or just need down time does not impair access to justice provided that everyone understands the need to make personal sacrifices when truly urgent circumstances arise.
Ultimately, a hearing date of February 4, 2021, was set. “Absent urgency that was not voluntarily assumed, I find it to be in the interests of justice to grant the adjournment sought.”
It is good to see that the court is recognizing the demands being placed on those in the legal profession, and the increase in these demands as a result of the pandemic. Yesterday was Bell Let’s Talk Day. Their motto, “When it comes to mental health, now more than ever, every action counts” is particularly apt.
Have a great weekend.
On March 30, 2020, Noah Weisberg blogged about the estate trustee’s duty to invest during COVID-19, a time when market fluctuations have become the norm. Today, I consider how pandemic-induced changes in the housing market may impact an estate trustee’s management of real property held by an estate.
Real properties – including primary residences, cottages, and vacation properties – are often some of the largest assets an estate trustee will deal with during the course of their administration of an estate. Unless otherwise stated in the deceased’s will, the estate trustee has a fiduciary duty to sell the estate’s real property for its fair market value and is expected to do so in a timely manner.
However, the exact timing for the market and sale of real property can depend on many factors. It is common for a will to grant an estate trustee the discretion to choose whether to sell or retain assets. As it pertains to real property, this power allows the estate trustee to hold onto a property until such time as they can achieve the best possible sale price on behalf of the beneficiaries. At the same time, the estate trustee needs to be mindful of the costs incurred by the estate in having to maintain the property. Beneficiaries of the estate may also put pressure on an estate trustee to sell the property and convert it to money sooner rather than later.
Like most industries, the real estate market has been impacted by COVID-19. An estate trustee should be attentive to whether recent changes in the housing market make it an ideal or inopportune time to market a particular property for sale, while also bearing in mind the factors described above.
If an estate trustee decides to list a property for sale in today’s uncertain housing market, there are a few things they can do to help protect themselves against future claims from beneficiaries. First, the estate trustee should have the property appraised for its fair market value by a professional appraiser who is an independent third party. For added protection, the estate trustee may want to have the beneficiaries sign off on the property’s price. The estate trustee should also make an effort to keep the beneficiaries apprised of each step of the sale process. Lastly, the estate trustee should take care to keep detailed records of all advice received and steps taken in the event that they need to justify their actions at a later date.
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The COVID-19 pandemic has forced the legal profession to alter the ways in which we practice. The need to keep litigation moving forward has brought to the forefront alternative processes and the importance of technology. Files are continuing to move forward during the pandemic via virtual proceedings, such as virtual courtrooms and virtual mediations. While some are embracing these platforms, others are more wary. In Arctoni v. Smith, 2020 ONSC 2782, Justice Myers considered whether an examination for discovery should proceed by videoconference, or if the plaintiffs were allowed to wait until the physical distancing restrictions are lifted and conduct the examination in-person.
The plaintiffs objected to a videoconference examination because they maintained that:
- They needed 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
- They did not trust the defendants not to engage in sleight of hand to abuse the process.
Justice Myers noted that the simplest answer to this issue is that “It’s 2020”. He went on to say that “we now have the technological ability to communicate remotely effectively. Using these technological methods is more efficient and less costly than personal attendance and we should not be going back.”
While the court endorsed the use of technology, it acknowledged that legitimate concerns exist. One of which is that technology can be abused. It was noted, however, that the possibility of abuse may still exist even if parties are in the same room. While it is important to remain vigilant against the risk of fraud and abuse, a vague risk of abuse is not a good basis to decline the use of technology.
Furthermore, the suggestion that the use of videoconferencing creates “due process” concerns was rejected as the court noted that all parties have the same opportunity to participate and to be heard. All parties also have the same ability to put all of the relevant evidence before the court and to challenge the evidence adduced by the other side.
With regards to the plaintiffs concern that they needed to be with counsel to assist with the documents and facts, Justice Myers stated that there are other ways in which counsel can convey information to their colleagues during an examination. For instance, Zoom offers “breakout rooms” in which counsel can privately meet with their colleagues and clients.
Case law depicts that there are many fears associated with assessing the credibility of a witness via video technology but these fears, by those who have never actually used the technology stated Justice Myers, may not be as significant as they seem. While solemnity and personal chemistry may be lost in remote proceedings, it is not yet known whether, over time, solutions to these shortcomings will be developed as familiarity with these processes grows.
Justice Myers emphasized that, in 2020, the use of readily available technology is “part of the basic skillset required of civil litigators and courts.” He went on to say that those who are uncomfortable with technology should obtain necessary training and education.
The court concluded that proceeding remotely does have its shortcomings; however, in this case, the benefits of doing so outweighed the risks. The plaintiffs main concerns could be resolved by creative alternatives or by increased familiarity with technology. By proceeding remotely, the litigation, which had been going on for years, would not have to be delayed. Consequently, Justice Myers ordered that, unless the plaintiffs chose to waive their opportunity to conduct the examination for discovery, the examination should proceed by videoconference.
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Ian Hull and Celine Dookie
This week on Hull on Estates, Noah Weisberg and Nick Esterbauer discuss continued accounting obligations during the COVID-19 pandemic and procedural considerations relating to fresh and pre-existing applications to pass accounts.
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