Full disclosure here:   I really like my job.   Being a lawyer at an insurance defence firm specializing in municipal and public authority defence work is great.   Interesting, complex and challenging files, sophisticated and intelligent clients, co-workers whom I genuinely like and whose company I enjoy and a (for-the-most part) collegial bar all add up to a high degree of job satisfaction for me as I reach the mid-point of my third decade as a lawyer.   But unfortunately, one of my favourite parts of the job has changed significantly over the past year and a half – that of venturing forth from my office to attend discoveries, mediations and court appearances in person.

 I think I speak for most of my colleagues here when I say that one of the most enjoyable parts of being a litigation lawyer is the fact that I do not have to spend five days a week sitting behind my desk sifting through mounds of paper.  Obviously, there are some days like that, but there are just as many days spent at Official Examiners’ offices and courthouses around the province, interacting in person with my peers and their clients, or at least this was the case before  the COVID19 pandemic put an end to this in March 2020.  All of my appearances now happen in front of a computer at the office and my interaction outside my office is solely with talking heads on my computer screen in what can best be described as the dullest episode of Hollywood Squares ever.   And this brings me to the point of this article – that is, whether, now that vaccination rates are up and the pandemic is (hopefully) subsiding, whether we can expect to return to in person attendances in the same way we did before the spring of 2020.   The answer, the way I see things, is a resounding “maybe”.

This issue recently came before the Ontario Courts in the case Arconti v. Smith 2020 ONSC 2782 (Canlii).   In this case, the Plaintiffs were previously respondents in a hearing before the Ontario Securities Commission (OSC), which found that they had committed securities fraud.   The Plaintiffs appealed on the ground that their lawyer, the Defendant Smith, did not represent them properly at the OSC hearing, and also commenced an action against Smith on the basis of his allegedly negligent representation.  They also alleged that Mr. Smith failed to properly impress against the Plaintiffs the risks of being found liable for fraud, and that had he done so, they would have settled the OSC case.

After the Plaintiffs’ Divisional Court appeal from the OSC hearing was dismissed, the Defendant lawyer moved for summary judgment in the action commenced against them by the Plaintiffs.   This motion was heard by the Honourable Mr. Justice Myers.  Myers J dismissed the Plaintiffs’ claim that the Defendant improperly represented them before the OSC on the basis of issue estoppel.   This left the issue of whether the Defendant was negligent in not properly explaining the risk of being found liable for securities fraud to the Plaintiffs before proceeding with the OSC hearing.   Myers J., pursuant to his discretion under Rule 20.04(2.2), ordered a “mini-trial” on this issue and gave directions as to how this trial was to proceeding, including permitting discoveries of the parties on the issues to be tried.   It was envisioned, given that this all happened during the early days of the COVID19 pandemic, that these discoveries take place virtually so that the mini-trial could be held without any delay.      

However, the Plaintiffs, who strike the writer as a fairly mistrustful group, had other ideas and argued that the discovery of the Defendant should take place in person, at an Official Examiner.    They cited four reasons why virtual discoveries were not acceptable in this case:

1. The Plaintiffs wished to be present with their lawyers at discovery to assist with documents and facts during the examination;
2. It is more difficult to assess witness demeanour in a virtual discovery than it is in person;
3. The lack of physical presence in a neutral setting deprives the occasion of solemnity and a morally persuasive environment;
4. The Plaintiffs did not trust the Defendants not to engage in sleight of hand to abuse the process if discoveries took place virtually (it strikes the writer that (c) and (d) are essentially the same argument, repeated two slightly different ways);

Myers J., upon hearing the Plaintiffs’ arguments, was not persuaded to permit the discoveries to take place in person.   He commented, in his reasons, that “it’s 2020”, and that now that the technology exists to facilitate remote hearings and communications, counsel should be making use of it in order to make litigation more efficient and less costly.   At the same time, however, he noted that technology is merely a “tool” and that there would be situations where an in-person attendance is preferable.  He also referred to Rule 1.08 of the Rules of Civil Procedure, which states:

• If facilities for a telephone or video conference are available at the court or are provided by a party, all or part of any of the following proceedings or steps in a proceeding may be heard or conducted by telephone or video conference as permitted by subrules (2) to (5): 

1. A motion;
2. An application;
3. A status hearing;
4. At trial, oral evidence of a witness and the argument;
5. A reference;
6. An appeal or motion for leave to appeal;
7. A proceeding for judicial review;
8. A pre-trial or case conference

Rules 1.08(2) to (5) state that these hearings can proceed via telephone or video conference, on consent, or by court order on a motion.  On a motion concerning whether or not a proceeding or step in a proceeding take place virtually or via telephone, the court is required to consider, pursuant to Rule 1.08(5), the following factors:

• The general principle that evidence and argument should be presented generally in open court;
• The importance of the evidence to the matters at issue in the case;
• The effect of telephone or video conference on the court’s ability to make findings, including determinations of credibility;
• How important it is in a particular case for the court to observe a witness’s demeanour;
• The ability of the party, witness or lawyer to attend as a result of infirmity, illness or any other reason;
• The balance of convenience between the parties;
• Any other relevant matter.

Some lawyers reading this might be a little surprised to learn that Rule 1.08 has been on the books for twenty-two years (i.e. since 1999) and that since 2008, this rule was amended once more to permit the Court to order proceedings to proceed remotely of its own initiative, even if neither party consents.   Of course, this Rule does not refer to examinations for discovery as one of the steps in a proceeding which can take place remotely.  

Nonetheless, Myers J. felt that this rule was drafted broadly enough to permit him to order remote discoveries in this matter, likely on the basis that these discoveries were a “step” in one of the proceedings specifically listed in Rule 1.08(1).  Myers J. went on to address the Plaintiff’s concerns for abuse of the technology by the Defendants – for example, by having someone off camera feeding a witness self-serving answers, but he noted that people can send hand signals in person if they so desire.  He felt that it would be improper to simply assume that parties will act fraudulently in a remote discovery – particularly when the deponent is a lawyer, and an Officer of the Court, whose professional obligations are onerous and well known, and whose professional reputation is their stock in trade[1].   He concluded by stating that given the above-referenced provisions of the rules, and the technological advances in the legal field making remote proceedings more common, lawyers ought to be generally speaking, comfortable with technology, and although not every case is suitable for a remote hearing, this is nowadays becoming more and more the norm, and something that counsel should be accepting of, absent any particular circumstances that favour in-person hearings.   He noted that virtual hearings are only becoming commonplace now, and that as counsel become more familiar with them, the concerns expressed by the Plaintiffs in proceeding virtually in these examinations will dissipate over time. 

Counsel appear to be relying on this endorsement in Arconti v. Smith in refusing to produce their client for discoveries in person.  I recently read a post on LinkedIn from a well-regarded and prominent member of the Plaintiff personal injury bar, citing this case in support of  the proposition that in-person discovery is no longer available as of right.   While I believe we are going to be attending a lot more virtual discoveries even when the pandemic subsides, I do not think that this is a correct interpretation of Arconti.

First of all, one common thread that runs through this case is the fact that the alternative to permitting these discoveries to proceed virtually was for “litigation to grind to a halt” as a result of the need for social distancing during May 2020.   At this time, many official examiners were closed, counsel, parties and court reporters faced real health risks by proceeding in person, and stringent rules were in place for the maximum number of people who could gather indoors.   None of these things appear to be the case, at least to the same extent, in November 2021, given the increase of vaccinations and the relaxing of government regulations on gatherings.   The same concerns about “litigation grinding to a halt” in the absence of virtual examinations no longer apply the same way as they did when Myers J. made this endorsement.

Secondly, and most importantly, this case dealt with examinations for discovery in a “mini-trial” pursuant to court directions given on the Defendant’s motion for summary judgement.  As such, these examinations were a “step in a proceeding”, that proceeding being a motion.   Rule 1.08(1) only allows a court to order virtual hearings in proceedings or “a step in a proceeding” as listed in this sub-rule, including a motion.   However, as discoveries are not expressly listed in Rule 1.08 as one of the proceedings which may take place electronically, it is debatable whether Myers J would have had the jurisdiction under this rule to order a virtual discovery against one of the parties’ wills in the course of a “regular” action.   I expect, however, that this issue will be revisited by the courts in the context of a “regular” examination for discovery, and having regard for the general comments of Myers J which appear to favour counsel embracing technology, it remains to be seen how the issue will be decided.

I suspect that we will be doing more and more discoveries from the comfort of our own offices and homes even when the pandemic is a distant memory.  Conducting discoveries, mediations and court attendances via Zoom has resulted in some amusing diversions from the work itself – cameo appearances from my two dogs coming into my home office, opposing counsel having to go off the record at discovery to yell at his kids to get off the internet so that his screen stops freezing, countless jokes about not wearing pants (which I call “the Anchorman Look”) and, lest we forget, the occasional misplaced cat filter, but there are also benefits of proceeding to discovery virtually.   I personally do not miss having to travel to Timmins in February for discoveries in road maintenance cases for local municipalities, and getting stranded there due to inclement weather grounding flights.  Similarly, I am sure that many of my clients are quite happy to not have to pay for travel time and travel expenses for trips out of town.   Certainly, I am more productive and get more work done in a day if I do not have to stray from my office desk to conduct a discovery, which is not a bad thing from the perspective of work-life balance.   Finally, let us  not forget that coming to an official examiner to undergo discovery can be intimidating and stressful for some parties, and that this may adversely affect the quality of their evidence, not to mention, in certain serious personal injury cases, that travelling to a court reporter, and negotiating downtown parking, office buildings and elevators can present some difficult accessibility issues.   While I am looking forward to getting out a little more in 2022, I suspect that the practice of law has changed again for us litigators, and we will all need to do our best to embrace this change.

[1] One cannot help but wonder whether, had the shoe been on the other foot and it was the Defendant seeking an in-person discovery on the basis that the Plaintiffs might engage in slight of hand if the discoveries were virtual, given that the Plaintiffs had been found to have committed securities fraud in the underlying OSC matter….