Jun 26, 2020

There have been a slew of cases in the midst of the pandemic on video examinations and hearings.

This includes Justice Myers’ repeatedly-cited decision in Arconti v. Smith, 2020 ONSC 2782, wherein he stated, “In my view, in 2020, use of readily available technology is part of the basic skillset required of civil litigators and courts. This is not new and, unlike the pandemic, did not arise on the sudden. However, the need for the court to operate during the pandemic has brought to the fore the availability of alternative processes and the imperative of technological competency.” It also includes Justice D.L. Corbett’s Divisional Court’s decision in Association of Professional Engineers v. Rew, 2020 ONSC 2589. This latter decision is a short and useful 4 pages (especially in comparison to some of the gargantuan judgments he has delivered in the never-ending Peoples Trust Company v. Atas case) and is summed up in the following line, “Something will be lost if court business does not continue, as best that can be managed, during the COVID-19 crisis...”

In addition to ZOOM, now the video conferencing software of choice with its multifaceted features (e.g. screen share, breakout rooms), there is a menu of options for hearings, examinations and virtual commissioning of real estate and will documents: Skype, Facetime, WhatsApp, Webex and Google Hangouts to name a few amongst them.

There are, of course, dangers to relying too heavily on the wonders of video conferencing (e.g. signalling by others off-screen, note writing outside the line of sight) but it is clear that many judges consider that the benefits outweigh the cons and there are still professional obligations to maintain the integrity of the process.

There is now a lengthy decision by the Court of Queen’s Bench in Sandhu v. Siri Guru Nanak Sikh Gurdwara of Alberta summarizing the law on videoconferencing.

Notwithstanding the jurisdictional challenges in the case, given the Supreme Court of Canada’s decision in Highwood Congregation of the Jehovah’s Witnesses (Judicial Committee) v. Wall, which will now be revisited following the Ontario Court of Appeal’s decision in Aga v. Ethiopian Tewahedo Church, 2020 ONCA 10, 2020 CanLII 40630, the Albertan justice allowed examinations to proceed by video conference after a thorough review of the rules and caselaw.

Since Justice Brown’s decision in Romspen Investment Corporation v. 6176666 Canada Lteé, 2012 ONSC 1727, lamenting the lack of electronic facilities and repositories, it looks like we are now ZOOMing into the 21st century.