Ontario Bar Association backs proposed guidelines for remote court hearings

OBA provides list of matters that should presumptively proceed remotely

Ontario Bar Association backs proposed guidelines for remote court hearings

The Ontario Bar Association has backed the proposed guidelines issued by the Superior Court of Justice (SCJ) concerning the conduct of remote hearings amid the ongoing COVID-19 pandemic.

In its written submission, the OBA confirmed that it has been working with the SCJ’s civil working group to ensure “efficient and effective” conduct of remote hearings and continuously supporting the SCJ for its ongoing work in this matter.

According to the OBA, resorting to remote hearings can promote efficiency and cost-effectiveness and ensure the appropriate allocation of judicial resources.

“Scheduling courts, brief chambers appointments, and brief motions in courtrooms hearing multiple matters on the same day are clear examples of these efficiencies,” the OBA wrote.

The OBA also noted that there are neither due process concerns surrounding the conduct of remote hearings nor proof to establish that these hearings can compromise a judge’s ability to evaluate witness credibility.

“As such, it is suggested that the necessity of a ‘credibility assessment’ is generally not a relevant factor for determining whether a hearing should proceed remotely or in-person,” the OBA wrote.

In addition, the OBA provided a list of matters that should presumptively proceed remotely. These matters include:

  • Procedural matters, chambers appointments, and scheduling appearances;
  • Pre-trials;
  • Short motions or applications;
  • Motions that do not require witness attendance and are comprised of argument by counsel only;
  • Summary trials.

The OBA recommended that the SCJ consider hybrid hearings in instances where costs, travel time, and inconvenience associated with a witness’s attendance are disproportionate to the nature of the hearing.

If there are extenuating circumstances, such as age or health-related concerns, the OBA suggested that the SCJ permit the witness to testify remotely despite the in-person nature of the hearing.

“We believe that these recommendations will help improve the use of remote hearings, create a foundational basis for post-pandemic processes that will be cost-effective, improve efficiency for the courts, and make the best use of available judicial resources,” the OBA wrote.

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