Virtual Hearings, Access to Justice and Privacy

Under ordinary circumstances, I would not remotely contemplate imposing such an unsatisfactory mode [videoconference] of a trial on a party against its will. But these are not ordinary circumstances and we have entered a period in which much that is around us is and is going to continue to be unsatisfactory. I think we must try our best to make this trial work…

Justice Perram, Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 (Australia)

Like many adjudicators working during the pandemic, I am now adjudicating in a virtual hearing room instead of a real one. The first few months of preparing for virtual hearings and then conducting them has been spent figuring out the new technology and how to adapt it to the hearing process. Many tribunals have done good work in developing practice directions and guides for the use of technology.

Now that we have figured out the technology, we need to start looking at the structural or systemic issues that arise from this unprecedented experiment in virtual hearings. In this column, I will pose more questions than answers because I think it is too early to determine the both the extent of the issues and the possible methods to resolve (or ameliorate) them. I will also focus on two systemic issues – access to justice and privacy. I will save for some future column the issues relating to credibility assessment and hearing management generally.

During this pandemic, some access to justice is better than none – which is why courts and tribunals have moved toward videoconferencing platforms such as Zoom or Microsoft Teams. In-person hearings are difficult to conduct given current public health restrictions. There are some situations where courts and tribunals have determined that a video hearing is not appropriate, but those situations will be rare. For example, the Ontario Superior Court of Justice determined that a video hearing could not proceed due to a hearing disability of one of the parties. In that case, the hearing was adjourned until February 2021, although the court rightly noted that it was not clear where matters will stand respecting in-person hearings at that time. The Workplace Safety and Insurance Appeals Tribunal (WSIAT) issued an interim practice guideline that sets out a non-exhaustive list of the circumstances decision-makers will consider in determining why a virtual hearing would not permit a fair hearing:

• The length of the delay if the matter is adjourned for an eventual in-person hearing.
• The potential prejudice to a party.
• The complexity of the matter, including whether the matter will involve a consideration of surveillance or other video evidence.
• Whether the individual circumstances of the case and procedural fairness considerations necessitate an in-person hearing.
• Any other relevant matter.

The overall view of courts and tribunals is that “the show must go on” and that virtual hearings will be the norm until the pandemic ends, likely (and hopefully) sometime in 2021. There is a strong possibility that those most vulnerable to COVID-19 will have an even longer wait until they are able to attend a hearing in person.

Access to justice for this year and next is therefore dependent on access to the internet. And not only just access – but access to broadband networks and internet plans that allow for high speed downloading. On the platforms I have used for virtual hearings (Zoom and Microsoft Teams), broadband is critical for conducting a hearing. Without it, witnesses freeze, their voices become out of sync with the video, or they lose connection altogether. Sometimes the problem is easily resolved and the hearing resumes after a short delay. Sometimes the problem is not so easily resolved.

Canada has a problem with access to broadband that is well-documented. The Auditor General of Canada found that in 2016, about 96% of urban Canadians had access to broadband internet speeds of 50 megabits per second (Mbps) for downloading data and 10 Mbps for uploading data (50/10 Mbps). Only 39% of Canadians living in rural and remote areas had access to the same speeds. This means that approximately 5.4 million Canadians have access to slower speeds that make virtual hearings either impossible or difficult. Fortunately, government has realized this disparity and has been investing in rural high-speed internet for a few years. The most recent Speech from the Throne has promised even more funding. However, this is a long to medium term investment and will not address access issues in the short-term.

Of course, although high-speed internet may be available, it does not mean it is accessible. There are those Canadians who are homeless or under-housed who may not have easy access to internet of any kind, let alone high-speed. Low income households may also not be able to afford the high-speed access required by videoconferencing platforms.

The ability to use videoconferencing platforms reliably also depends on a few factors, identified by the CRTC, that could limit access to justice in a time of a pandemic:

Your computer. Is it new and fast, or an older computer struggling to keep up with the demands of new applications?

Your modem. This is the device that converts the data travelling on the phone, cable or fibre line into a form that your computer can use. Is your modem capable of handling today’s higher speeds? Older ones may not be capable.

Your wireless router. Increasingly, consumers are setting up home Wi-Fi networks in which a router delivers Internet service to several devices. The distance between that router and the devices using it can affect Internet speeds.

The number of devices being used. Are you alone using a single device? Or are other family members also using the Internet on a computer, tablet, or smart phone? Many devices using the Internet at the same time compete for the same speeds and can slow things down.

Clearly some of these factors directly relate to income (the cost of newer computers or equipment). The number of devices being used is also a factor. With more than one person working from home in a household and children learning remotely, this can be a real challenge. Not everyone has the flexibility to stop their remote working or learning while another member of the household participates in a video hearing.

Living in a household while participating in a video hearing also raises significant privacy issues, especially for public hearings. We have all experienced — either personally or through viral videos — the amusement of video interviews where family members or pets have entered the frame. And there are social media feeds devoted to rating the rooms of Zoom interviewees. In a real hearing room, the living conditions and personal items of a witness are clearly not observable. As an adjudicator I do not believe that what I see in someone’s home will have any impact on my decision-making. The concern here is the ability of members of the public to see into someone’s living room, kitchen or home office.

One way to protect your personal space from being shared on video platforms is the use of virtual backgrounds. Some tribunals actively discourage the use of virtual backgrounds for witnesses. There is a good fairness reason for prohibiting them – decision-makers need to be certain that there is no one else in the room with the witness assisting with their testimony. Virtual backgrounds generally require computers with more advanced graphic cards that are more common on newer computers. In addition, virtual backgrounds can sometimes be distracting or interfere with the ability of an adjudicator to observe a witness.

I am not sure if there is a solution to the intrusive nature of video conference hearings. I suspect that there is no easy resolution, other than closing hearings to the public. My Slaw colleague, Amy Salyzyn, has looked at the issue of balancing the open court principle with the privacy of witnesses in virtual court hearings and concluded: “Ultimately, hard choices may have to be made”.

In the short-term there are no easy answers to the issues posed in this column. And there is no alternative to video hearings in the time of this pandemic. As noted by Justice Perram in the Capic v. Ford case cited at the beginning of this column, we must carry on:

If I could be sure that the crisis would have passed by October I would not hesitate to adjourn all the trials in my docket … However, there is simply no guarantee that the situation will be any better in six months’ time. It may be that this is a state of affairs which persist for a year or so. It is not feasible nor consistent with the overarching concerns of the administration of justice to stop the work of the courts for such a period. Nor is it healthy for the economy. A prolonged cessation of business will be [a] very poor outcome. Those who can carry on should, in my view, do their best to carry on as inconvenient and tedious as this is going to be.

However, the lessons we are learning and the issues that are being identified will be important to revisit when the pandemic eases. It also raises interesting issues for discussion with those who say that we will never return to our pre-pandemic level of use of in-person hearings.

In a future column I will discuss what we have all lost by no longer having in-person hearings.