Courts across Canada have rapidly adapted to COVID-19
restrictions by finding new ways to address disputes. As
restrictions are lifted, litigants are now faced with a
significantly altered dispute resolution landscape.
To help litigants navigate this new environment, here are our top
five changes to Canadian litigation due to the current
pandemic.
1. TECHNOLOGY IS REDEFINING COURTROOMS ACROSS THE COUNTRY
For many Canadian courts, COVID-19 has accelerated technology
modernization efforts that were progressing slowly (if at all)
prior to the pandemic. Courts have adopted platforms such as Zoom,
Microsoft Teams and Webex to conduct remote hearings. Many courts
are now conducting either fully virtual or hybrid hearings, in
which a judge and some parties are present in the courtroom while
others attend virtually.
Electronic filing of court documents has also become increasingly
common. Some courts, including the Ontario Superior Court of
Justice, are implementing electronic document sharing platforms
like CaseLines to help courts and counsel electronically manage
documents before and during hearings.
Courts in some jurisdictions have ordered matters to proceed
remotely or in writing, even without consent from all the
parties.
2. ENHANCED ACCESS TO PROCEEDINGS
Many courts are now providing parties, the public and the media
with remote access to virtual hearings. This is a significant
change from requiring interested parties to attend at the
courthouse.
Some courts provide the participants with private login details or
phone numbers for remote hearings. In other cases, courts provide
login details directly to members of the public upon advance
request. The British Columbia Court of Appeal has posted links to
public livestreams of proceedings on their webpages, while courts
in Ontario have livestreamed some proceedings on platforms such as
YouTube.
3. GREATER OPPORTUNITIES FOR ALTERNATIVE DISPUTE RESOLUTION
Despite the increased use of technology in proceedings, many
courts are still faced with a significant backlog of cases, causing
litigants to employ alternative dispute resolution mechanisms,
including mediation and arbitration. In some jurisdictions, such as
Quebec and Alberta, courts are encouraging or even requiring
parties to use alternative dispute resolution.
Arbitration can be useful where parties are looking for a timely
resolution of disputes. It provides a flexible process that enables
parties to realize efficiencies by agreeing to expedited timelines,
choosing to use technology not available in the courts and
selecting arbitrators comfortable with the preferred technology.
Arbitrations can move quickly, allowing parties to avoid the
current wait times to have matters heard before many Canadian
courts.
Mediations can provide similar efficiencies. Virtual attendance,
including the use of virtual “breakout rooms,” have
made scheduling easier and more efficient for parties, particularly
when based in multiple jurisdictions. In a virtual mediation, it is
also easier for clients and counsel to use their time more
productively during inevitable downtime.
4. AN INCREASED APPETITE FOR SETTLEMENT
The significant court wait times and financial pressure caused
by COVID-19 have also made many litigants more willing to resolve
disputes to avoid long and expensive court proceedings. Settlements
are currently being achieved through virtual mediation and informal
discussions between counsel and their clients.
In some jurisdictions, courts have taken an active role in
encouraging settlement. In Alberta, case management judges have
encouraged parties to explore settlement in advance of trial by
engaging in discussions about the status of ongoing settlement
talks and canvassing the possibility of reaching a deal in advance
of booking the proceeding date. The goal is to reach a positive
resolution, where possible, while clearing up court time for other
matters.
5. NEW CONSIDERATIONS FOR REMOTE LITIGATION
Above all, counsel and clients proceeding with litigation virtually should expect the unexpected. There are a few key considerations that have emerged from the recent experiences of litigators to keep in mind:
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When working with witnesses in a virtual trial, advance planning is crucial. The witness's internet connection must be stable, and any lighting or other issues should be resolved in advance. Participants should consider using multiple screens or devices to refer to documents while maintaining a connection with the decision-maker.
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If referring to documents will be necessary, participants should carefully plan and practice the method for doing so. For example, “sharing” a screen with other participants has been known to unintentionally reveal materials that parties do not want the adverse party or decision-maker to see.
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“Zoom fatigue” is real. Participants should consider techniques to maintain the decision-maker's attention, for example, by keeping their presentation focused, having different team members participate and incorporating visuals, where possible.
You can learn more about the changes to Canadian litigation due
to COVID-19 and the firsthand experiences of litigators by viewing
our webcast
Disrupting Disputes: Litigation in a Post-COVID World.
Originally Published by Blakes, November 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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