During the Pandemic many lawyers and insurers have been very helpful, kind and considerate given the global health crisis we are all dealing with.
At the same time, some lawyers and insurers have been the exact opposite.
As lawyers we have an obligation (or a duty) to be part of the solution and not part of the problem.
This means pivoting and adapting to make things work.
Filing documents with the Court electronically? We’ve made that change.
Conducting examinations for discovery, mediations, pre-trials, case conferences and trials electronically? Evolved to do this as well.
Serving documents on other parties electronically? Check!
E-transferring settlement funds? Yup!
Commissioning Affidavits virtually? Yes!
All of these changes have taken place over the Pandemic to make the practice of law safer for lawyers, litigants, judges, clerks, witnesses and everyone in between so that the legal system can move forward even in the face of a global Pandemic which has cost so many lives.
Participating in the legal process should not be dangerous. You should not have to put your health at risk participating in a case. This is exactly why these changes have been brought about.
Yet some lawyers, and some insurers continue to resist these changes.
Our lawyers have seen defence counsel which represent insurers insist on in person examinations for discovery, and other things which have compelled personal attendances.
This is the way things were done before COVID-19, so why change now? Why not just keep going as things had gone before for years and years and years.
This is a tone deaf position. It does not take in to consideration the health and safety of the actors involved in the discovery process (vaccinated or not), along with the contacts they make when discovery is over.
To understand the absurdity of an in person discovery during the Pandemic, let’s examine what an examination for discovery would entail.
It would entail hours of intense oral questioning in a small room. Inside of that room would likely be the lawyer(s) for the Plaintiff, the Plaintiff, the lawyer(s) for the Defendant(s) along with a Court reporter.
There may be a HEPA filter in the examining room, or not.
The windows of the examining room may, or may not be open.
The doors of the examining room may, or may not be open.
The discovery won’t take place outside, or inside of a large ventilated room.
Will everyone inside of that room be vaccinated? No guarantee.
Will everyone in that room be masked? I would assume so, but you never know.
Will the participants of the Examination for Discovery be tested for COVID before participating in said discovery? No requirements for that.
If there are COVID related risks involved to getting together for an examination for discovery; and conducting the discovery by way of video is an accepted, viable, safe and cost effective way of doing the examination for discovery; then why the resistance by some lawyers?
I can only assume that it’s because they want to intimidate a Plaintiff who has never participated in the litigation process before. I can assume that they want to leave a scary impression upon that Plaintiff to let him/her know that their case won’t be walk in the park. Let’s call a spade a spade. Insisting on in person discoveries isn’t because the process works better than via ZOOM. It’s because a sophisticated insurance defence lawyer with years of discovery experience wants to scare and intimate an innocent accident victim who has never participated in an examination for discovery before.
Recently the Honourable Justice F. L. Myers released a decision on the issue of in person discoveries vs. virtual discoveries in WORSOFF v. MTCC 1168, 2021 ONSC 6493. In his decision in favour or virtual discoveries as oppose to in person discoveries during the Pandemic, the Honourable Justice Myers noted:
In my view, a preference for remoteness while the pandemic remains with
us is reasonable all else being equal.
The court identified access to justice as the single biggest problem facing the
civil justice system. Yet the existing barriers to access to civil justice have
not really been addressed despite the highest court in the land calling for a
“culture shift” toward modernization, decreased cost, increased efficiency,
and overall enhanced proportionality in the civil justice system so many
If the cost of participation can be decreased for parties
and counsel by use of remote methods, access to justice will be improved.
Arrangements so that litigants do not have to take a full day off work; drive
downtown and pay $40 or more for parking; or take the bus for 90 minutes
each way; are real savings that promote participation and access to justice.
If a lawyer can avoid travel and waiting time because she is working at her desk until she signs-on to a virtual examination or hearing, transaction costs
are decreased for clients.
The court is not called on to make findings at a discovery. Use of a
transcript is all that is available in court after discovery in any event.
I do not accept that the pandemic is over so we should all just go back to the way it was. That
assumes that the “good old days” were actually good.
But I do not agree that examinations for discovery need to default to in person
attendance because it is “better”.
It’s now 2021. Virtual proceedings have proven to be one of the first
significant enhancements in access to justice since Hryniak was decided in
2014. I am not discussing trials (and the savings available by expert
witnesses testifying remotely) or even cross-examination on an affidavit out
of court under subrule 34.01 (c) for that matter. But I see no good reason to
put the defendants to any increased risk of COVID-19...
This is a classic example of lawyers not being a part of the solution and instead being part of the problem. Lawyers, court staff, reporters and litigants aren’t immune to COVID simply because they are participating in the litigation process for a few hours. Lawyers need to be more progressive when it comes to taking measure to reduce the transmission of COVID. When there are better ways, those ways must be taken out of an abundance of caution. As lawyers, we should set a better example for other professionals and the general public that participating in the litigation process will not put a participant in harm’s way given we have their safety and health in mind in the midst of a global pandemic. Let’s not be so selfish when it comes to what lawyers want. Instead put clients and the general public first and using technology to keep everyone safe and secure.