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 the top five ways the current pandemic is impacting Canadian litigation.
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:
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.
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.
“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.