Jun 8, 2020

Court Hearings by ZOOM Call: Does Too Much “Get Lost” in Video Conferencing?

Association of Professional Engineers v. Rew, 2020 ONSC 2589 (CanLII)

The COVID-19 pandemic has required Ontario courts to adjust to physical distancing requirements by temporarily closing courthouses, and by conducting hearings remotely in urgent cases.

In a recent decision, the court considered a blanket objection by one of the parties that video-based proceedings are to be avoided, because “something may be lost in a video conferenced hearing.”

The argument was raised at a case management conference, where the parties attended (virtually) before a judge to set up an upcoming court hearing date for a judicial review application. The judge scheduled the hearing to proceed before a panel of three Divisional Court judges, and addressed the technology document-filing and the private exchange of documents between the parties using cloud-based methods.

In light of physical distancing mandates, it also ordered that the hearing should go forward by way of ZOOM video technology, rather than in person, with each side appearing from appropriate surroundings that were free from interruption or disturbance. The court added that instead of gowns, both the judges and lawyers could wear business attire during the video call.

This aspect of the ruling prompted one of the litigants to object, complaining that matter should be adjourned until an in-person hearing could be held.

The court rejected the litigant’s request. While noting that “every judge retains the inherent jurisdiction to ensure that cases proceed fairly”, it concluded that the litigants’ complaints “do no more than suggest that something may be lost in a video conferenced hearing.” The court added:

Something will be lost if court business does not continue, as best as can be managed, during the COVID-19 crisis, and I am not persuaded that any of the concerns raised by [the litigants’ lawyer] justify departing from the processes established under the Directions to the Profession for the continuation of court operations.

The court noted that the consent of the parties was not required for an Ontario court to schedule a hearing by video conference; this was made clear in those same Directions to the Profession, which emphasized that the interests of justice remained paramount despite the COVID-19-related challenges.

Also, while the case was admittedly of substantial importance to the parties, this was not relevant to assessing whether the case could be heard fairly and efficiently by video conference. Indeed, there was nothing about the particular case to render it unsuitable for remote hearing, the court said, especially since the parties were each being represented by experienced counsel “who should have no difficulty making their arguments understood to the court” by means of video conference.

Adding that the matter had already been subject to lengthy delay up to this point, the court summed up its conclusions this way:

The policy arguments for and against video conferenced hearings are not matters on which this court should opine. The Directions to the Profession are sets of policies and procedures directed with Province-wide effect in response to the COVID-19 crisis, and concerns about the means chosen to respond to the crisis are matters to be taken up with the Office of the Chief Justice, not individual judges across the Province.

For the full text of the decision, see:

Association of Professional Engineers v. Rew, 2020 ONSC 2589

[This post by Russell Alexander first appeared on FamilyLLB.com on June 3, 2020]

Edward Conway commented
It would seem to me that paragraph , sentence 1 is the true ratio of this case. There is no viva voce in this appeal. Nothing turns upon the observation of the witness. When and if the court starts making rulings in the absence of live viva voce evidence, objections SHOULD come fast and furious.
I meant to say paragraph 8 sentence 1