By: Jordan Thompson, Associate Lawyer
Across all industries, the COVID-19 Pandemic has put strain on process by hindering the ability to host in-person meetings, and the justice system is no exception. Fortunately, the Courts are adapting and have moved towards more virtual hearings with respect to Motions, Applications, and Trials.
So, what does a virtual process look like for your case versus a traditional one?
Well, very similar to the in-person experience with respect to process, with the main difference being the use of video conferencing software to facilitate meetings at a distance.
At a Trial, the Plaintiff presents their case first, then the defendant, then closing arguments. Virtually, we would proceed the same way, except for testimony (viva voce evidence)). Generally, Motions do not have oral testimony and most Motions proceed by way of affidavit evidence.
Which cases would move forward virtually, and which would have to wait?
Straightforward cases presented virtually may go ahead at the discretion of the judge who is presiding over the matter while more complex matters that involve numerous witnesses and documents, would be virtual only in the instances of lockdown when in-person meetings aren’t possible.
Depending on the circumstances, the Courts may allow for some evidence to be presented virtually to keep things moving along. For example, short testimony from a lay witness (as opposed to an expert witness) may proceed virtually while more complex and vital witnesses may have to wait until they can appear in person.
Ultimately, the decision on how to proceed falls to the judge. The Rules of Court were recently amended to allow the judge hearing the matter discretion of over the question of virtual/telephone hearings. As with proceed to a Motion and Trial, the judge will likely be the final decision maker in how we proceed going forward.
What happens if you don’t have access to the video conferencing technology you need, or skills to operate it effectively?
If access to technology is a problem in your case, our team can assist in making our boardroom with all the necessary equipment available, so that you would be able to come in and testify. If that is not possible, then an adjournment of the matter would likely happen until the matter could proceed in person.
What are the benefits and drawbacks to doing things virtually versus waiting?
Comfort is a noticeable plus. Some clients may prefer doing things virtually as they feel safer at home (given ongoing pandemic concerns) while others just feel more relaxed outside of the formal Courtroom setting.
Timing is also an argument for going virtual. In some cases, virtual meetings (especially during tines of lockdown) could speed up the process, if in-person hearings are not possible.
But virtual meetings aren’t without their issues. While virtual connectivity helps to keep the wheels of justice remain spinning, there’s always potential for technical glitches (lags, sound issues, frozen videos, etc.) that could interfere with the flow of the meeting, or impact someone’s ability to join virtually. There are also some circumstances where in-person meetings are required for a case to proceed.
We understand that ushering legal cases along in a digital world is very new to everyone, and we are still learning and adapting to make things easier for all parties as we move forward. Working in this hybrid way with the Courts has proven to be effective to date, but should you have any questions about the virtual process or your unique case, please don’t hesitate to reach out.