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Litigating in the Time of COVID-19

4 minute read

Following a statement from the Law Society of Ontario that virtual commissioning of affidavits was permitted due to social distancing, last week I commissioned a client’s affidavit via WebEx, a secure videoconferencing platform. The entire meeting, including an exchange of pleasantries on how each of us was coping with working from home, lasted about five minutes. Although I had couriered the client’s affidavits to her and asked her to return the original signed copies in a self-addressed envelope, there are more efficient programs available, such as DocuSign and Adobe Sign, which eliminate the need for couriering the affidavit. Following our meeting, I could not help but think back to countless meetings with clients for the same purpose that took about the same amount of time, but required the client to travel to the office, sometimes from far away. Virtual commissioning is much more efficient (and follows public health recommendations to follow physically distancing).

As part of a generation of lawyers that grew up with the Internet, I have found it difficult to fathom why the courts and most lawyers still use fax machines; why paper copies, not digital copies, of materials must be filed with the court; and why we still print cases and highlight them in triplicate (one each for us, the court, and opposing counsel) prior to hearings. I was therefore excited to see some endorsements issued recently by Justice F. L. Myers of the Ontario Superior Court of Justice that demonstrate just how the civil justice system can function in the 21st century.1

On March 15, 2020, a Notice to the Profession, the Public, and the Media Regarding Civil and Family Proceedings of the Ontario Superior Court of Justice advised of the suspension of regular court operations, except for the hearing of urgent matters. In this context, Justice Myers directed parties in several cases to:

  • serve materials by email, with no acknowledgement of receipt of email required;
  • file all evidence, records, and factums with the court by attaching same to an email to the trial/motions coordinator in “searchable PDF format”;
  • refer to case law or statutory material “by hyperlinks to CanLII contained in the parties’ factums or in a separate list of authorities”; and
  • participate in a hearing by telephone conference or videoconferencing as may be available and acceptable to the parties and the presiding judge.

Remote alternative dispute resolution is also available and may be more frequently used now in light of court closures. Mediations and arbitrations may be done—and in some instances, are already taking place—by telephone conference or videoconferencing. As both a social distancing measure and a cost-saving measure, parties may also decide to conduct examinations for discovery and cross-examinations by videoconferencing to eliminate the need for counsel and/or litigants to travel and be physically in the same location. Considering that family and criminal matters take precedence over civil matters, alternative dispute resolution may become more attractive options for litigants and the civil bar alike beyond the resumption of regular court operations due to the inevitable backlog of court resources that will result from the suspension. Even if the courts re-open in June 2020, civil cases likely will not be reached until the backlog of criminal and family law cases has been addressed by the court.

One might posit that the COVID-19 pandemic is rapidly changing the way we practice law. I would suggest that the many tools at our disposal have been around for a while, but we just did not see their utility or change our ways across the board to allow for their use until we were confronted with a “new normal” that has forced all of us to work remotely. In the interest of productivity and cost-efficiency for clients, it is my hope that most, if not all, of these measures will stick well after COVID-19 has run its course.

1 See examples at 2020 ONSC 1695, 2020 ONSC 1689, 2020 ONSC 1820, and 2020 ONSC 1805

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Kimberly A. F. Cura

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