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.
The way that we practice law has shifted rapidly over these past couple of weeks as we social distance ourselves. This includes the adoption of electronic means of communication such as video conferencing for things that would have seemed impossible only a couple of weeks ago such as the witnessing of Wills or the commissioning of affidavits. There has also been a significant expansion of the courts hearing matters virtually, with the court currently hearing urgent matters virtually through the use of video conferencing or conference calls with the scope of what is being heard appearing to be expanded.
Although, generally speaking, I believe that most legal practitioners would likely be in agreement that the court and/or the various administrative bodies have responded fairly quickly to implementing new electronic methods and means of practicing law under trying times, this does not necessarily mean that the shift to the more virtual form of practicing law is not without its hiccups or concerns.
One of the areas that may need further consideration is the application of the “open court” principle if hearings are to shift to being heard virtually. It is generally accepted that a fundamental principle of our justice system is that the courts are open to being attended by anyone in the general public, with the court only restricting the general public’s access to attend and/or review a matter under very limited circumstances. As matters shift to being heard virtually, with a potential attendee to a video and/or telephone conference likely needing an access code to attend the matter, is there the risk that the “open court” principle could be impacted?
The Toronto Star recently reported about the steps and efforts that they were having to take to still be provided with electronic access to matters before the court during the pandemic. Although the article notes that they were having difficulty being provided with access for certain matters, it noted that they had been successful in obtaining electronic access to matters in others. Hopefully as time progresses any issues are able to be worked out.
One unknown element is whether any of these changes will become permanent after the pandemic has subsided. If elements such as virtual hearings should become more permanent steps will likely need to be taken to ensure that as part of the more permanent shift to virtual and electronic hearings that the “open court” principle is not lost.
Thank you for reading and stay safe and healthy.