“It’s 2020”: Ontario Superior Court of Justice orders examination for discovery to proceed by video conference

Arconti v. Smith (Arconti) is an example of the sea change that has taken place in the Ontario Superior Court of Justice regarding the use of technology to deliver timely access to justice during the COVID-19 pandemic and beyond. In that case, Justice Myers ordered the examination for discovery of a witness to proceed by video conference, despite the plaintiffs’ desire to delay the proceeding until the requirement for social distancing has ended and an in-person examination may proceed.

The action involves a claim for professional liability against the plaintiffs’ former counsel stemming from a hearing before the Ontario Securities Commission in which the plaintiffs were held to have committed securities fraud. The defendants brought a motion for summary judgment. The court was not prepared to grant summary judgment and instead ordered a focused mini-trial to proceed on May 27, 2020. At a case conference on May 1, 2020, the court advised counsel that, although the mini-trial would not proceed on May 27, 2020, because of the pandemic, the hearing would be rescheduled in the near future. The plaintiffs required further examination for discovery of the defendants, but objected to conducting the examination by video conference and raised various due process concerns. According to Justice Myers, “the simplest answer to this issue is, ‘It’s 2020’. We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools anymore. 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 while there are legitimate challenges with respect to an examination by video conference, the vague risk of abuse is not a good reason to refuse to accept available technology. As Justice Myers pointed out, “in 2020, use of technology is part of the basic skill set required of civil litigators and courts.” In the result, the court determined that the plaintiffs’ concerns about conducting an examination by video conference did not outweigh the benefit of moving forward with the lawsuit and did not justify additional delay.

The legal landscape has irrevocably changed. Arconti demonstrates the court’s willingness to embrace video conference technology and highlights the importance of technological proficiency as a skill now required of lawyers. The use of technology to deliver more timely and cost-effective access to justice is a positive development in the practice of law, which is finally here to stay.

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Ara Basmadjian

About Ara Basmadjian

Ara Basmadjian is a partner in the Litigation and Dispute Resolution group at Dentons Canada LLP. His practice involves a variety of complex corporate, commercial and civil litigation matters. Ara has particular experience in cases involving commercial contracts, negligence, product liability, class actions, limitations law, cannabis in Canada, and extraordinary remedies, such as injunctions.

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