Since the onset of the coronavirus pandemic in March 2020, the Ontario court system has gone 2.0, so to speak, adopting a number of technological advancements that have created the “virtual courtroom” and other proceedings. It’s all been done to address a combination of public health and safety, as well as access to justice.
But the side benefits have been plenty: time savings, cost savings, and convenience. Zooming into the future has been a virtual slam-dunk for the industry.
Back in 2020, with everything on lockdown, all of the proceedings were being done virtually, from trials to case conferences.
Now, over two years in, the Guidelines for attendance have changed. Per Chief Justice Morawetz this spring, the Court’s guidelines for the mode of proceeding now sport a mix of virtual attendance and in-person requirements.
Virtual vs. In-Person proceedings
The goal was to maintain the access to justice piece along with the expediency and cost-effectiveness of virtual, combined with maintaining the importance of the more conventional, traditional in-person proceedings, such as trials.
The Guidance keeps case conferences, pre-trial conferences, most motions and assessment hearings virtual. There is, however, an addendum stating “unless the Court specifies a different method of attendance.” This means that in-person can be demanded at any time for various reasons.
However, in-person attendance is now the default once again for the following:
- Trial, Jury
- Trial, Judge-alone
- Examinations for Discovery
- Mandatory Mediations
- Appeals to the Divisional Court and Applications for Judicial Review
In all of the above, excepting the jury trial, it allows for “unless the parties consent to it being conducted virtually or unless the Court specifies a different mode of proceeding.” But does everyone involved, from clients to lawyers, agree with the guidelines? Should clients or lawyers who for some reason may want to ask for the alternate attendance—possibly at the extreme inconvenience to one of the opposing parties—be given that opportunity?
A controversial guideline
There is one attendance guideline in particular that comes into question.
“Of all the guidelines in civil proceedings, the default position of in-person examinations for discovery and mediations has been the most controversial,” said personal injury lawyer Brian A. Horowitz of Horowitz Injury Law.
“In tort litigation, these proceedings are by far the most common, yet the court’s guideline seems to be encouraging them to take place in person during the current phase of the pandemic. I have yet to come across a single case where an opposing counsel or my client has demanded an in-person proceeding. In fact, my clients have made it clear that they would not attend their examination or mediation if they were not held virtually through Zoom.”
The reasoning, said Mr. Horowitz, is simple.
“While the pandemic has improved, it is not over, and people just don’t want to take the risk if they have the choice. I assume my clients will continue to have this view for some time to come. While obviously safer, virtual discoveries and mediations are also an enormous cost saving and are as effective as their in-person counterparts.”
A virtual win for the practice of law
As covered above, the great silver lining for the legal industry that came out of the pandemic was the great savings afforded by the new virtual attendance technologies: savings of time, savings of financial resources, and savings of case backlogs. Is it prudent to take a step back on any of these conditions?
As time goes on, lawyers across the province will hopefully weigh in with their concerns if their clients are getting disadvantaged by the system under the new guidelines for attendance.
Horowitz Injury Law has been getting clients the compensation they deserve for 35 years. They will continue to provide these services in as safe and effective a manner as possible. Call now for a no-cost consultation: 416-925-4100.