Oct 23, 2020

Imposing Electronic Hearings without Consent

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

The Divisional Court of Ontario recently ordered that an appeal of a discipline hearing proceed remotely over the objections of counsel for the practitioner. The practitioner expressed concern that there might be disadvantages to a hearing held on Zoom, such as not being able to watch the pens of the Judges during argument. The appeal had the potential to affect the practitioner’s livelihood. On this point the Court noted:

However, the materials and arguments presented by Mr Schwisberg do no more than suggest that something may be lost in a video conferenced hearing. 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 Mr Schwisberg justify departing from the processes established under the Directions to the Profession for the continuation of court operations.

The Court rejected the practitioner’s arguments. The Court held that the consent of the parties to proceed remotely was not required. It concluded that the hearing, especially one without witnesses, was conducive to being heard in an electronic format. The Court had already had successful experience in conducting important hearings remotely. The Court was also concerned that the proceeding had already been delayed significantly (assigning no blame for the delay).

The Court went on to provide specific directions on how the hearing would be conducted, outlining several guidelines, including those related to decorum and the formatting of documents, with the required use of hyperlinks. See Association of Professional Engineers v Rew, 2020 ONSC 2589, http://canlii.ca/t/j6mpg for more details.

While hearings by regulators may be different than Court proceedings, particularly where witnesses testify, many of the principles identified in this case likely apply to some degree in the regulatory context as well.