It’s 2020.

With the COVID-19 pandemic, we have seen a forced evolution upon all of us working in the legal profession.  We have been forced to work remotely and to learn how to be efficient and productive.  Some law firms have not transitioned to a paper less system, but have been forced to do so in order to continue moving their claims along to allow their staff to access their files.  Due to health restrictions during the pandemic, we are all learning to adapt and evolve and the use of technology has played a significant role in this process.

For lawyers who are not comfortable to using technology, here is a decision that may make you consider technological tools that may be here to stay.

This recent decision of the Ontario Court Arconti v. Smith, 2020 ONSC 2782 (CanLII) reviews attendance at an Examination for Discovery by videoconferencing.  The key quotes are enumerated but this is a decision worth reviewing.

The Court’s comments regarding videoconferencing:

Analysis

[19]     In my view, 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.

[20]     That is not to say that there are not legitimate issues that deserve consideration. Technology is a tool, not an answer. In this case, the parties cannot attend in the same location due to health concerns and governmental orders. So, the question is whether the tool of videoconference ought to be required  to keep this matter moving or if the mini-trial ought to be delayed further due to the plaintiffs’ desire to conduct an examination for discovery in person.

Also, arguments in relation to “proportionality” principles and access to justice are very persuasive:

43]     I agree but with this proviso. In my view, much of the hesitancy and concern that led to the conclusions that the process is “unsatisfactory” or raises “due process concerns” stems from our own unfamiliarity with the technology. As noted above, it is just a tool. It does not produce perfection. But neither is its use as horrible as it is uncomfortable.

[44]     In my view, the plaintiffs’ concerns with the prospect of conducting an examination remotely do not outweigh the desirability of proceeding with this matter and do not justify further delay.

The Order

[45] I order that the examination for discovery of Mr. Fenton shall proceed by videoconference on May 6, 2020 unless the plaintiffs choose to waive their opportunity to conduct the examination.