Virtual Examinations Are Here to Stay

Examinations for discovery are a regular feature of civil proceedings. Litigators are deeply accustomed to the facilities, court reporters, and transcripts necessary to provide this important procedural step.

One significant feature of these in-person proceedings that everyone misses is the bountiful food offerings that these facilities offer. An hor d’oeuvre or sip from a coffee is often one of the best ways to avoid interrupting, and let something that is non-essential slide.

All of these trimmings are gone in the virtual context, with discoveries continuing throughout the pandemic through virtual conferencing. That doesn’t mean that everyone is comfortable with the change, and won’t attempt to resist it.

A recent decision by Justice Myers in Worsoff v. MTCC 1168 suggests that there may not be much sympathy for the comfort of counsel in evading virtual options, interpreting the new Rule 1.08 of the Rules of Civil Procedure in the first reported decision since the amendment on Jan. 1, 2021, adding video conference.

All parties in the proceeding had served notices of examination on the other parties. The plaintiff’s notice asked for examinations in-person, and the defendant served a notice of objection, indicating a preference to proceed by video conference. However, the plaintiff did not object to their examination being conducted by video.

Rule 1.08(8) provides that if the parties required to attend a discover fail to agree on the method of attendance, a party shall request a case conference for an order to direct the method of attendance. Prior to the 2021 changes, the only options under 1.08(1) was in person or by telephone conference.

The factors to be considered by the court can be found in Rule 1.08(6),

Method to be Determined by Order

(6) At the case conference referred to in subrule (5), the court shall make an order directing the method of attendance at the hearing or step and, in doing so, the court shall consider, as applicable,

(a) the availability of telephone conference or video conference facilities;

(b) the general principle that evidence and argument should be presented orally in open court;

(c) the importance of the evidence to the determination of the issues in the case;

(d) the effect of a telephone conference or video conference on the court’s ability to make findings, including determinations about the credibility of witnesses;

(e) the importance in the circumstances of the case of observing the demeanour of a witness;

(f) whether a party, witness or lawyer for a party is unable to attend by a method because of infirmity, illness or any other reason;

(g) the balance of convenience between any party wishing the telephone conference or video conference and any party or parties opposing; and

(h) any other relevant matter.

Justice Myers noted that many of these factors deal with issues of court hearings, and are not of significance for an out of court process step, which is typically of little consequence in most cases. The context of the pandemic did provide some other relevant matters that was worthy of consideration here,

[20] In the vast majority of cases, the method of attendance at an examination for discovery should be a matter of agreement. A party who insists on a particular method should have a good reason for declining to cooperate when someone else puts forward an alternative preference supported by a
reason. In my view, parties are hard-put to show that there is a difference that actually matters practically in most examinations for discovery.

[21] The defendants submit that we are in the fourth wave of the pandemic. While some parts of society are re-opening with appropriate precautions, the defendants prefer not to get together in an examiners’ office with the parties opposite, staff, and the crowd of other counsel, parties, and witnesses often there for other cases.

[22] In my view, a preference for remoteness while the pandemic remains with us is reasonable all else being equal.

Justice Myers also made note of the significant benefits to access to justice through remote proceedings, especially in Simplified Procedure and where credibility was not an issue,

[26] Arrangements so that litigants do not have to take a full day off work; drive downtown and pay $40 or more for parking; or take the bus for 90 minutes each way; are real savings that promote participation and access to justice.

[27] If a lawyer can avoid travel and waiting time because she is working at her desk until she signs-on to a virtual examination or hearing, transaction costs are decreased for clients.

[28] Avoiding paying a lawyer to come to Toronto or to go to another place is also a significant cost savings for a client through virtual proceedings. Lawyers can participate in proceedings in multiple locations on the same day virtually. The increase in efficiency in their practices is substantial.

Justice Myers also noted the shortcomings of virtual proceedings, including inexperience with technology and the potential for misconduct,

[31] All of these issues have been canvassed elsewhere. The state of the art is evolving. Some real changes are happening with the potential to actually improve access to civil justice for the public. I do not accept that the pandemic is over so we should all just go back to the way it was. That assumes that the “good old days” were actually good.

[32] …Efficiency, affordability, and enhanced access to justice trump counsels’ comfort and presumptions every time. With the current pace of change, everyone has to keep learning technology. Counsel and the court alike have a duty of technological competency in my respectful view. Older judges and counsel may be behind younger counsel and the rest of society who use computers with greater regularity and sophistication than we do. But everyone in the civil litigation system in
Ontario has had to learn to use the Civil Submissions Online portal and Caselines for example. Technological change affects everyone…

[35] It’s now 2021. Virtual proceedings have proven to be one of the first significant enhancements in access to justice since Hryniak was decided in 2014. I am not discussing trials (and the savings available by expert witnesses testifying remotely) or even cross-examination on an affidavit out of court under subrule 34.01 (c) for that matter. But I see no good reason to
put the defendants to any increased risk of COVID-19 or to bring their lawyer to Toronto for one side’s Simplified Procedure examinations for discovery in this case.

Once the pandemic is over, if everyone can agree that in-person discoveries are more ideal, nothing with prevent them from doing so. In addition to the trimmings, there are some very practical benefits of in-person discoveries.

The many breaks and opportunities to go off the record also provide some opportunity for counsel to develop rapport, and to have meaningful discussions about settlement, for those who are so inclined to do so. The efficient and affordable advantages of virtual discoveries often prevent or frustrate a similar process from occurring online.

One of the unexpected side-effects of the pandemic is a change in our communication styles and patterns. Jen Kirsch states in The Star,

“In a pre-COVID world, when we spend time with other people, without consciously being aware of it we’re picking up on all kinds of subliminal cues, to know when it’s a good time to speak or when someone is just taking a breath,” said Diana Brecher, scholar-in-residence in positive psychology at Ryerson University. She says that we used to scan and pick up on all kinds of cues such as breathing, facial expressions and posture, and then we’d incorporate these cues in our communication style.

“If you think about a Zoom call where there’s a slight delay, or you hear but you don’t see the mouth moving and it’s not exactly in sync, you’ve kind of learned to disregard what you see,” Brecher said.

Same goes for phone calls, which many relied on for connection during lockdown. “On a phone call, I don’t get to see your facial expression, or if you’ve just taken a breath and you’re about to speak,” Brecher said. “Sometimes in phone calls there’s a little overlap and you say, ‘Oh sorry, you go’ and that kind of thing, because we’re flying blind. You can’t pick up all the information you need.”

Now that people are beginning to socialize in person, we’re not used to incorporating the cues that we see and don’t necessarily automatically take them into account.

“Be aware that you’ve been ignoring cues because you didn’t need them for the past 18 months,” Brecher said. During your next in-person conversation she suggests reminding yourself to pay attention to the non-verbal cues and look to see when someone is actually done speaking. “That may be all you need to hold yourself back and before talking over other people,” Brecher said. “Let’s all assume that we’re all doing our best and we’re rusty.”

All of this is a complete nightmare for the reporter during a discovery, and it’s inevitable that the transcripts from these proceedings will not be as useful or streamlined as the in-person alternative can be. But for many proceedings, this still might be worth it.

Either way, you can expect that virtual discoveries are here to stay, and will remain at least one option for proceedings in the post-pandemic world.

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