Because It’s 2020: Will Virtual Hearings Become the Norm?

The legal profession is already feeling the impacts of the coronavirus, and following recent judgements in Arconti v. Smith  and Natco Pharma (Canada) Inc. v. Canada (Health), videoconferencing technology is fast becoming a fixture of court proceedings[1] .

In Arconti, the Ontario Superior Court ruled that if the Plaintiffs wanted to examine for discovery one of the Defendants, they had to do it by videoconference, or forfeit the examination. Judge Myers ruled that there was no reason to hold up the proceedings until a traditional, in-person examination could take place once the pandemic restrictions had been lifted. He deemed videoconferencing “more efficient and less costly” than in person examination, reminding us that, after all, “it’s 2020”, and courts should make use of the technology available to them rather than clinging to the usual ways of proceeding. He also stated that in this day and age, a certain level of skill in using technology should be expected of lawyers and the courts.

The plaintiffs resisted discovery by videoconference, arguing that as opposed to in-person examination there is loss of communication and a risk of coordination by the witness and their counsel. The plaintiffs also argued that the lack of a courtroom setting might remove some pressure on witnesses to tell the truth, could facilitate abuse of process, and would reduce the ability to observe witness demeanor.

While acknowledging that these were valid points, Judge Myers ultimately found that the benefits of cost and expediency in going ahead with the examination outweighed those risks. Though normally a remote proceeding might not be ideal, these “are not ordinary circumstances”. The Court did not find that videoconferencing created due process concerns, as all parties still have the equal opportunity to participate, to present evidence and to challenge the opposing party’s evidence. Judge Meyers concluded that many of the objections raised against videoconferencing stem from a lack of familiarity with the technology among counsel.

In Natco Pharma, the Federal Court ruled that a hearing for judicial review would take place via Zoom. The Court found that a Zoom hearing satisfied the Open Court principle, and that access to justice is a public good that is “simply too important” to postpone. The objections of a litigant have to be weighed against the interest of all in obtaining timely justice.

Following the Arconti and Natco rulings, and other similar cases starting to crop up elsewhere, litigants and the courts will be expected to adapt their processes to the current pandemic, and likely to the post pandemic world as well. In fact, the uptake of videoconferencing in court proceedings is sure to continue even when social distancing ends. Rovi Guides, Inc. v. Videotron Ltd provides a blueprint of the new protocols implemented by the Federal Court to conduct a virtual hearing via Zoom[2], including the use of electronic documentation, providing phone numbers in case of lost connectivity, protocols for witness behavior on camera and how the public can request links to view parts of the proceedings.  Stay tuned, as the Federal Court will soon post User Guides for participants and for the public and the media on how to conduct or participate in a hearing by videoconference.

This evolution is particularly relevant in IP litigation, where litigants and witnesses often come from many parts of the world. The pronouncements in these cases are particularly à propos: why must the costly and complex tried and true method of in-person examination in and out of court always hold? Innovative judges and litigants will now no doubt be exploring the use of technology which, despite its challenges, brings opportunities for more expeditious and less costly access to justice.

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[1] Arconti v. Smith 2020 ONSC 2782; Natco Pharma (Canada) Inc. v. Canada (Health) , 2020 FC 618

[2] Rovi Guides, Inc. v. Videotron Ltd., 2020 FC 637.

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Linda joined the Fasken team after having completed the third year of her law program at McGill University. She took an interest in litigation and new technologies law; she participated in the Harold G. Fox Moot on intellectual property and worked at a law office specializing in class actions.

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Marek Nitoslawski is a seasoned IP litigator whose winning strategies in patent, trademark and copyright matters have earned him the respect of clients, colleagues and the courts. In recent years he has represented clients in cross-national patent litigation involving electronics, aeronautics and recreational vehicles.