Virtual Court Should Remain a Tool to Benefit Litigants
The COVID-19 pandemic and the restrictions put in place to prevent the spread of the virus have presented challenges to the litigation process. In the face of those challenges, courts across the country have adapted to increase the use of remote communication technology to allow litigation matters to move forward. “Virtual court”, or remote hearings by telephone, video, and communication platforms like Skype, may have been adopted in response to crisis, but the merits of such technology could open the door to more cost-effective and timely access to justice in the post-pandemic future.
The Supreme Court of Nova Scotia began offering virtual court hearings and settlement conferences in May 2020 for some non-urgent civil matters at the Law Courts in Halifax. The Court has since expanded virtual court to include matters with documentary exhibits and viva voce evidence, including cross-examination. That means virtual court is available for civil and criminal matters in all locations, subject to the following criteria:
- All parties are represented by counsel;
- The matter can be dealt with in three days or less; and
- All parties consent, or a judge orders otherwise.
From a practical perspective, time and travel commitments, in addition to monetary considerations, are taken into account by litigants who are engaged in, or are considering becoming engaged in litigation. Virtual court presents the advantages of allowing litigants to more easily and cost-effectively comply with procedural timelines, produce documents, and engage in examinations for discovery and cross-examinations. Accordingly, the influence which time and travel commitments have on a litigant’s decision-making process may be diminished.
Courts and tribunals in other jurisdictions have recognized the merits of virtual court. In a recent case conference endorsement, the Ontario Superior Court of Justice ordered that the examination of the defendant proceed by way of videoconference, or not at all (Arconti v. Smith, 2020 ONSC 2782). In that case, the plaintiff objected to a videoconference examination because they maintained:
- That they need to be with their counsel to assist with documents and facts during the examination;
- It is more difficult to assess a witness’s demeanour remotely;
- The lack of physical presence in a neutral setting deprives the occasion of solemnity and a morally persuasive environment; and
- The plaintiffs do not trust the defendants not to engage in sleight of hand to abuse the process.
The Court, while recognizing legitimate concerns about the use of technology, said in response:
“It’s 2020… We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.”
The Court acknowledged that virtual court does seem to present some apparent loss of solemnity and personal chemistry that is front and centre in the in-person process. Over time, the Court said, as familiarity with new processes grows, solutions to these perceived shortcomings may present themselves.
Since the Arconiti v. Smith decision, courts and tribunals in other cases have been called upon to determine whether it is appropriate to proceed with what are best characterised as traditionally in-person proceedings, by way of videoconferencing. To date, the consensus is that the benefits of virtual court outweigh the risks. There appears to be growing support for the notion that videoconferencing still allows for an assessment and determination of whether a witness is credible – a trait which is fundamental to the effectiveness of our court system. It has been recognized that “[v]irtual hearings are likely to retain a permanent place in the judicial tool box.” (Scaffidi-Argentina v. Tega Homes Developments Inc, 2020 ONSC 3232)
The financial and logistical challenges presented by historically in-person proceedings weigh heavily on litigants when contemplating settlement and on prospective litigants when deciding whether to commence an action to begin with. Virtual court may ease some of these concerns, allowing litigants to focus their attention on the merits of the case. The burden of delay and backlog in the court system may also be improved with the addition of the virtual hearing as a permanent tool in the court system.
Cox & Palmer is committed to serving the needs of our clients by implementing opportunities made available by the Court to diminish the influence of financial and logistical challenges presented by litigation.