COVID-19 and the public health response to the global pandemic has had a significant impact on the conduct of civil litigation in Ontario and elsewhere. The Ontario Superior Court of Justice has encouraged all regions to adopt virtual proceedings wherever possible. It has requested that counsel and parties accommodate requests made by opposing counsel or parties for virtual hearings or other arrangements. The civil bar has responded by utilizing technology to move matters forward while supporting public health efforts to stabilize COVID-19 infection rates. The conduct of virtual examinations for discovery is one area of civil litigation practice where technology has been swiftly adopted. With almost two years of conducting virtual examinations for discovery, it appears that the practice is here to stay so long as COVID-19 remains a relevant limiting factor and perhaps will even continue when there are no epidemic outbreaks. The progress made over the pandemic to use technology to make the civil legal system more efficient, affordable, and accessible shall hopefully continue. This article will set out benefits and drawbacks of virtual examinations for discovery, draw the reader’s attention to four decisions dealing with virtual examinations, provide key takeaways from these decisions, and share resources to assist in conducting a virtual examination.
Benefits and drawbacks of virtual discoveries
Before March 2020, examinations for discovery were typically conducted in person, with some exception if witnesses lived far away and travel was prohibitive. After March 2020, virtual examinations for discovery became commonplace. Conducting examinations virtually highlighted many benefits and shortcomings of proceeding with this method as set out below.
There are many benefits to conducting examinations for discovery virtually, for instance: (1) reduced exposure to COVID-19; (2) maintaining access to justice; (3) efficiency; (4) reduced cost; (5) convenience; (6) increased participation and engagement; (7) accessible for those requiring accommodation; (8) increased availability in that you are not limited by the court reporter’s finite physical premises; and (9) closed captioning functions on software such as Google Meet.
On the other hand, there are some drawbacks to virtual examinations for discovery to be mindful of so they can be mitigated against. Such shortcomings include: (1) technical glitches; (2) range in technical ability of counsel and parties; (3) difficulty assessing credibility; (4) difficulty establishing rapport with witnesses; (5) solemnity of the process; and (6) access to justice for those who do not have the resources to participate.
Going forward, the method of examinations may be an issue counsel will have to discuss with their client and opposing counsel. Naturally, the rules governing the conduct of examinations for discovery will apply in the virtual setting just as they do when the examination is conducted in person. Counsel will have to discuss and agree upon additional ground rules to govern virtual discoveries. A few examples of common ground rules include counsel and clients agree the examination will not be recorded by any means by the participants, the deponent will be alone in their examination room, and the deponent will not be referring to any aids to assist in answering questions such as notes or Google. As time moves on and virtual discoveries replace most in-person discoveries, it is thought that conventions will arise that govern the conduct of same. In-person attendances will not be eliminated entirely. Where the case warrants it, in-person attendances will still occur.
Recent decisions and key takeaways
When should an Examination for Discovery be conducted virtually?
The Ontario Superior Court of Justice decision, Arconti v. Smith, was an endorsement from a case conference heard at the beginning of the pandemic on May 1, 2020. It was one of the first decisions to consider the method of examination for discovery during the pandemic. In this decision, Justice Myers ordered the examination for discovery to be conducted remotely. The main concern of the Court was to keep the litigation process going and avoid delaying the action until social distancing restrictions were lifted.
The key takeaway from Arconti is to encourage counsel and parties to embrace technology to keep litigation moving forward. The Court encouraged counsel to utilize technology in their litigation practice to serve clients. Arconti set the tone for litigators, parties, and the court in terms of what to expect and has been cited frequently.
A September 2021 decision, Worsoff v. MTCC 1168, involved a dispute between plaintiff’s counsel and defence counsel regarding whether the plaintiff’s counsel could conduct his discovery of the defendants’ representative in person. The Court considered the new amended rule 1.08 which was amended in January 1, 2021 as part of the modernization package of the Rules of Civil Procedure in light of the pandemic. Rule 1.08 sets out the process for determining the method of attendance for a step in a proceeding. If counsel can agree on the method of attendance under rule 1.08, then there are no issues. However, if counsel cannot agree, then one party can request a case conference to seek an order directing the method of attendance. That is what happened in Worsoff.
In determining the method of attendance at discovery, the Court considered the factors set out in rule 1.08(6). In Worsoff, Justice Myers applied the factors to the case and discussed both the benefits and shortcomings of virtual proceedings. Justice Myers commented that virtual proceedings promote efficiency, affordability, and enhanced access to justice. Virtual proceedings have proven to be one of the first significant enhancements in access to justice since Hryniak was decided in 2014. His Honour commented that counsel and the court alike have a duty of technological competency. Justice Myers ordered virtual examinations for discovery and saw no good reason to put defendants at risk of COVID or make the plaintiff’s counsel travel from Ottawa to Toronto for a 3-hour simplified procedure discovery.
The key takeaway from Worsoff is that the court will order a virtual examination for discovery if rule 1.08(6) factors support it. The Court rejected the argument that an examination for discovery should be conducted in person because it is the preference of counsel or because it is the way it has always been done.
Virtual examinations have been a vital aid to keeping litigation moving throughout the pandemic. However, this method is not immune from misuse and counsel must be vigilant to guard against same. The following two decisions dealt with misconduct during virtual examinations, specifically cross-examinations on an affidavit, and offer a cautionary tale.
The Ontario Superior Court of Justice decision Kaushal v. Vasudeva et al. was released on January 8, 2021. It is a motion decision within an Application to strike out evidence given by the respondent on the basis of misconduct during his cross-examination and on the grounds of abuse of process. Unfortunately, it appeared to the Appellant that that while the Respondent witness was being examined, there were other people in the room listening and assisting him with his answers. The Respondent witness denied this. Madam Justice Gilmore found that there was misconduct and that the Respondent witness was assisted in his evidence by the hand and facial gestures of his wife and son who were in the examination room, off camera.
The Court recognized that there is a risk of mischief with virtual examinations but that should not be reason enough to not use them. The consequence of the mischief was severe for the Respondent. The Court sent a strong message that interference in the fact-finding process by abusing or taking advantage of a virtual examination will not be tolerated. The Court struck out the Respondent’s Affidavit.
The key takeaway from Kaushal is to not allow other people in the examination room who aid, prompt, or coach the witness’s evidence.
The Ontario Superior Court of Justice decision Dimakos v. Dimakos was another case dealing with alleged inappropriate behavior during a virtual cross-examination on a break. As a result, the defendant brought a motion to stay the action or strike the affidavit being examined upon. Justice Chalmers found that there was a breach of the rules of cross-examination when the plaintiff’s counsel spoke with his client during cross examination. Justice Chalmers accepted counsel’s evidence that he believed the examination was over but indicated that counsel ought to have confirmed that was in fact the case. Justice Chalmers stated that “with video examinations the onus is on all participants to ensure that the integrity of the proceeding is maintained. This will require extra vigilance and caution as we go forward.” Justice Chalmers found there was no prompting of answers, no specific questions or answers were discussed, and thus little harm was done. The plaintiff’s action was not stayed, and the plaintiff’s affidavit was not struck.
The key takeaway from Dimakos is as we use virtual proceedings with greater frequency, there will be a tightening up of the rules and protocols around them. Everyone will be expected to maintain integrity of virtual proceedings.
The following are some helpful resources, with hyperlinks, to consult when conducting virtual examinations:
– OBA Best Practices for Remote Hearings, dated May 28, 2021
– The Advocates’ Society, OBA, FOLA, OTLA Best Practices for Remote Hearings, dated May 13, 2020
 2020 ONSC 2782 (“Arconti”)
 2021 ONSC 6493 (“Worsoff”)
 2021 ONSC 440 (“Kaushal”)
 2021 ONSC 3248 (“Dimakos”)