Recent Trends in Civil Litigation as a Result of COVID-19

By Nawaz Tahir and Nicholas Therens

This paper was first presented at a client seminar.

In March 2020, the world came to a near standstill because of the COVID-19 pandemic. Like many other industries, civil courts and litigators had to adapt to the forced shift online because even a global pandemic is no excuse for delaying the administration of justice. The digital world is the new world; however, effective August 2, 2022, Chief Justice Morawetz released a Notice to the Profession advising of new Guidelines applicable to proceedings in the Superior Court of Justice.¹ Ultimately, a hybrid model is being endorsed through the establishment of presumptive modes of both in person and virtual attendances to ensure all participants can fully and equally participate.

However, the parties are not bound by these presumptive modes. As provided by rule 1.08(1) of the Rules of Civil Procedure and with the discretion of the Court, a party can request that any step in the proceeding be held in person, by telephone or by video. In determining which method is most appropriate, the Court will consider the availability of telephone or video conference facilities for parties, the effect of these methods on the Court's ability to make findings such as the credibility of witnesses, the importance of observing the demeanour of a witness, whether a party is unable to attend a certain method and any other relevant matter.² These requests must be made at the earliest opportunity by writing to the Trial Coordinator's Office and all other parties no later than when first scheduling the event.³

While the continued use of virtual proceedings increases efficiency at many stages in the litigation process, the Court also recognizes the importance of in-person interaction and hearings for more substantive attendances.

Motions

Motions are requests to the Court to decide a certain issue being advanced by the moving party. The Notice provides that contested motions are to be virtual unless a party requests that it be held in person and the Court agrees or directs that it will be held in person. The Court will take into account the positions of the parties, the complexity of the legal or factual issues, whether the outcome of the motion or application is legally or practically dispositive of a material issue in the case (i.e. summary judgement), whether viva voce evidence will be heard, and any other factor bearing on the administration of justice in determining the proper mode of proceeding.⁴

Because the Notice provides that uncontested motions can be in writing unless otherwise specified by the Court, the hope is that opposing counsel is reasonable with requests, especially since "litigation nonsense" has been denounced by the Court as being unproductive and expensive when wasteful motions are advanced.⁵ Currently, both Ottawa and Toronto Courts are scheduling short motions into 2023, which is a lengthy delay especially if the motion must be dealt with to advance the file. However, a return to physical attendance is unlikely to magically alleviate this backlog.

Moreover, virtual motions are more cost-effective for clients as lawyers do not have to sit in a physical courtroom waiting for their matter to be called on the docket. Nonetheless, there are still some increased costs to virtual motions. This is because compendiums containing key materials that will be referred to and facta outlining legal arguments must be filed with the Court because materials that are not brought to the judge's attention at the hearing may not be considered.⁶ These materials were not previously required nor were they requested for routine matters before the pandemic.

Discoveries

In 2020, use of readily available technology is part of the basic skillset of civil litigators and courts.

Examinations for discovery give lawyers the chance to test the evidence of adverse parties and gather additional information to facilitate settlement or use at trial. Pursuant to the Notice, discoveries are to be in person, unless the parties consent to it being conducted virtually or unless the Court specifies a different mode of proceeding. While face-to-face proceedings may bring with them a better opportunity to test witness credibility, parties still have the same ability to put forward their evidence and challenge the evidence of the other side in a virtual setting. This was the reasoning of Justice Myers in Arconti v Smith where he rejected a request to adjourn the examination of a witness until it could be done in person to avoid, among other things, risk of abuse and to assess demeanour more accurately.⁷ It was stated rather simply that, "It's 2020" and the use of technology is part of the "basic skillset" required of litigators and the courts.⁸ Furthermore, Justice Myers also held more recently that virtual proceedings promote efficiency, affordability and enhanced access to justice.⁹

Nonetheless, in-person attendances will ensure that the integrity and solemnity of the discovery process are maintained. While these are rare occurrences in an online setting, parties can record or screen capture proceedings and witnesses can be coached in their evidence by someone off-camera as was held to be examination misconduct in Kaushal v Vasudeva.¹⁰

Mediations

Mediations are mandatory for civil proceedings in Ottawa, Toronto and Essex County to encourage settlement between the parties through the facilitation of a neutral third-party.¹¹ The default presumption for mediations under the Notice is also in person unless the parties consent to it being conducted virtually or unless the Court specifies a different mode of proceeding. However, virtual mediations have been extremely useful for all parties during the COVID-19 pandemic. Witnesses can participate meaningfully from the comfort of their own homes, lawyers and their clients do not have to incur additional costs for travel, accommodation and coordinating schedules of multiple parties who may be coming from various geographical locations and mediators are fully engaged in the process as they can quickly transition between virtual breakout rooms to encourage settlement.

The presumption of in-person appearances for mediations raises concerns. Not only will there be additional costs, but there is also a risk to settlement. While not all files are open to resolution, mediators have commented that virtual mediations allow for greater efficiency because participants are more comfortable with the process, parties have documents readily accessible to screen share for further discussions, and there is the added flexibility to continue mediations close to resolution even when the end of the day is approaching because there is no commute.

Pre-Trials

Case conferences and pre-trial conferences are court appearances with the parties and a judge to attempt to resolve or limit issues before trial. The Notice provides that these events are to be virtual unless the Court specifies a different method of attendance. Importantly, parties must upload all documents they will be relying on to CaseLines no later than five days before the hearing pursuant to rule 4.05.3(4) of the Rules of Civil Procedure. CaseLines is a global cloud-based document sharing system giving users the ability to upload files of all sizes. It also allows parties to navigate to specified tabs with ease. In Central East, this program is being used for long motions, pre-trials and trials; however, it is being used for all scheduled civil events in Toronto subject to a judicial order or endorsement.¹²

While this paperless transition is long overdue to accelerate the presentation of evidence, there are access to justice and security concerns to keep in mind for those in-person appearances. As of yet, no plan has been developed for how the necessary technologies will be set up, yet lawyers are expected to use CaseLines in the courtroom. Those lawyers who have already had in-person attendances have experienced issues with the Court not providing secured internet access to retrieve materials on CaseLines. This causes issues because feature settings are different in an offline mode. These growing pains will lead to delays in proceedings as lawyers and judges get accustomed to new technologies and the glitches that come with them.

Furthermore, the Notice provides that parties must give careful consideration to what is to be covered in the hearing time, the pace at which documents and authorities can reasonably be reviewed and the time needed for oral argument on the issues raised. If the parties do not have a realistic time estimate, the matter will be adjourned with no expedition of rescheduling the matter, which may be associated with cost consequences.¹³

...judge-alone trials are to be in-person, unless the parties consent to a virtual trial and the Court approves.

Trials

Pursuant to the Notice, judge-alone trials are to be in-person, unless the parties consent to a virtual trial and the Court approves. Jury trials are also to be in person, but the Court may consider the option of a hybrid proceeding and whether a witness, at the request of either party, may be permitted to testify virtually by videoconference. This raises interesting logistical concerns.

In the fall of 2020, new jury trials in most of the province were suspended and there was a marked increase in motions to strike jury notices from being advanced. However, jury trials provide the fundamental foundations for resolving civil disputes, so diminishing the role of juries will cause defendants prejudice. While accommodations have been made to ensure courtrooms comply with public health requirements, there are still steps that must be made to ensure the viability of civil jury trials. For example, Justice Phillips of the Ontario Superior Court of Justice made prospective jurors in a criminal case disclose their vaccination status and excused those who were unvaccinated.¹⁴ While this would take away a certain demographic of prospective jurors, it will facilitate access to justice as there will be fewer delays in the proceeding from unvaccinated jurors testing positive with COVID-19 and derailing the trial. A global pandemic is still no excuse for diminishing public confidence in the administration of justice by ridding jury trials altogether. A culture shift over a laissez-faire approach should be preferred.

Conclusion

There is value in virtual attendances for both litigators and clients. The new virtual reality is the new normal and it is here to stay – there is no longer the need for quill and ink. Therefore, the shift to a technologically driven world should not only be embraced for these interim circumstances but rather should be used and developed upon given the associated benefits of increased productivity and affordability. However, the hybrid approach being advised through Chief Justice Morawetz's Notice should also be welcomed as it ensures the best of both worlds depending on the specific needs of the parties and facilitates access to and public confidence in the administration of justice.

Chief Justice Geoffrey B. Morawetz, "Notice to the Profession, Parties, Public and the Media" (August 2, 2022).
Rules of Civil Procedure, RSO 1990, c C43 at r 1.08(6).
Regional Senior Justice Mark L. Edwards, "Notice to the Profession and Parties – Protocols for Proceedings in Central East Region" (June 1, 2022).
Supra note 1.
Berta v Berta, 2021 ONSC 605 at paras 40 and 42.
Supra note 1.
Arconti v Smith, 2020 ONSC 2782 at para 18.
Ibid at paras 19 and 32.
WORSOFF v MTCC 1168, 2021 ONSC 6493 at para 32.
Kaushal v Vasudeva, 2021 ONSC 440 at para 65.
Supra note 2, r 24.1.04(1).
Supra note 1.
Ibid.
R v Frampton, 2021 ONSC 5733 at para 2.