With many people working remotely as a result of the COVID-19 pandemic, the use of video teleconference platforms has widely increased. As virtual meetings have become commonplace, employees have had to adjust - we have learned what to wear, how to position our screens, and how to manage distractions in our homes.
But it’s not just company meetings that have gone virtual. In the legal community, there has been a concerted effort to continue legal proceedings through the use of videoconference platforms and electronic document management systems and software.
Our firm has been participating in virtual mediations and hearings before labour arbitrators, administrative tribunals, and the courts. As the legal community gains experience with virtual platforms, certain protocols and best practices are being developed.
Two of our lawyers, Daryn Jeffries and Alexandra Jamieson, recently successfully argued a judicial review matter before a three judge panel of the Ontario Superior Court of Justice. The hearing was conducted using the Zoom application.
An in-person hearing had originally been scheduled for April 7, 2020, but the Ontario Superior Court of Justice suspended all regular operations effective Tuesday, March 17, 2020 and the in-person hearing was adjourned. Pursuant to a practice direction issued by the Court on April 2, 2020 allowing parties to request that matters proceed remotely, the parties asked that the matter be heard by videoconference. The Court responded very quickly to the request and held a conference call with the parties two days later to schedule the hearing and discuss the process to be followed. A Zoom hearing was conducted on May 7, 2020 and the Court issued its decision on May 20, 2020.
The initial teleconference with the Court focused on the preparation and distribution of electronic documents and materials. A date was set by which the parties were to establish a shared Dropbox file and provide the Court with access to same. By that same date, the parties were required to convert pleadings and materials into electronic form and upload their documents to the Dropbox file. For example, rather than uploading Books of Authorities, all cases referred to in the parties’ Factums were to be hyperlinked to the corresponding CanLII citation.
In addition to converting existing pleadings and materials into electronic form, the parties were given the option to prepare various compendiums to assist the Court, utilizing features in PDF software to hyperlink, link within a document, and bookmark pages.
A Factum Compendium was prepared, which compiled portions of evidence from the record referenced in the factum into one PDF document. In addition to hyperlinking all of the cases referred to in the factum to CanLII, the Factum Compendium contained links to the referred to evidence to allow the Court to easily review each item without having to download and navigate between multiple documents.
An Argument Compendium was prepared in a similar manner, which would be displayed on a shared screen during the virtual hearing to allow all participants to simultaneously view the evidence and case law referred to throughout counsel’s argument.
Approximately one week before the hearing, the Court arranged for a technical rehearsal to be held with each party and a “virtual specialist”. The rehearsal allowed the parties to familiarize themselves with the features of the Zoom application that would be utilized during the hearing and to review the Court’s virtual hearing protocol. For example:
- Individuals with speaking roles should be prepared to use a headset with a microphone, if required for volume.
- All participants should have a second device available, in case of any technical issues.
- During the hearing, all participants who are not speaking should remain on mute.
- During submissions of counsel, participants (other than the panel) who are not speaking should be on mute and should turn off their video.
- During the hearing, participants may “raise a hand” using a feature on Zoom if they wish to interject.
A virtual hearing is certainly a different experience than the in-person hearings that we are used to - counsel did not wear robes, the participants did not stand as judges joined the videoconference, and the usual court staff were not present.
However, the hearing proceeded very much as it would in normal course. The panel addressed the parties, counsel made submissions, and the panel asked questions. The virtual specialist efficiently displayed documents and case law excerpts following the verbal cues of counsel and managed breakout rooms throughout the proceeding to allow for counsel to confer with their clients during breaks. Our client particularly expressed that these breakout rooms were very effective for private communication and easy to navigate.
What Happens Next?
As courts, labour arbitrators, and administrative tribunals grow more and more comfortable with conducting virtual hearings and mediations, we are likely to continue to see an increase in these types of proceedings. While there were initial concerns raised by both practitioners and clients regarding potential privacy and cybersecurity issues presented by virtual hearing platforms, it appears as if providers have reacted to these concerns swiftly and effectively and that those concerns have been adequately addressed from the perspective of most parties.
The precise procedures to be followed in a remote proceeding will vary depending on a number of factors including the forum, the nature of the proceedings, and whether witness testimony will be required.
Remote proceedings will continue for at least as long as the COVID-19 pandemic. Overall, post-pandemic, we expect in-person hearings to remain the predominant hearing format due to their flexibility, the value of in-person communication in both mediation and adjudication, and potential issues with respect to the integrity and complexity of witness testimony in teleconference or videoconference hearings. However, we expect that even after the pandemic the legal community’s increased familiarity with remote proceedings will result in adjudicators being more open to granting requests by parties to proceed by way of teleconference or videoconference.
In addition, the knowledge acquired with respect to the benefits and efficiencies to be gained through the use of electronic materials will remain. We expect that electronic materials will be prepared and relied on more frequently during both in-person and remote proceedings in the future.