Court says ‘consent of the parties is not required’ to schedule the hearing by video conference
A new decision from Ontario’s Divisional Court notes that — while there are arguments for and against video-conference hearings — the decision to proceed lies with the bench.
The April 24 ruling, Association of Professional Engineers v. Rew, 2020 ONSC 2589, Justice David Corbett writes, that “policy arguments for and against video conferenced hearings are not matters on which this court should opine.”
“The court is faced with an unprecedented challenge maintaining the institutions essential for the continuation of the Rule of Law in the face of the COVID-19 crisis, and recourse to electronic hearings is a key aspect of the court’s response. Scheduling and conduct of court proceedings is not subject to the consent of the parties,” wrote Corbett.
Corbett gave detailed instructions for the hearing, that the panel would have three judges of the Divisional Court, for an estimated 3 hours, using Zoom. Speakers for the hearing would need business attire (but not gowns), and would need to ensure they wouldn’t be disturbed during the proceedings. Corbett also told the lawyers to submit all documents as labelled PDFs with hyperlinks to authorities, with special instructions for anything not on Canlii. All documents would be entered into a password-protected electronic drop box, created by the appellant's lawyer, who would submit the URL to the court by May 22.
Arnold Schwisberg, the lawyer who acted for the respondent in the case management conference for an application for judicial review, said his client was not consenting to the video-conference hearing. Schwisberg cited the late Justice [Marvin] Catzman of the who “counseled appellate counsel to ‘watch the judges’ pens’ during an appeal.”
But Corbett cited the court’s directions to the profession at the beginning of April, saying “concerns about the means chosen to respond to the crisis are matters to be taken up with the Office of the Chief Justice, not individual judges.”
“Of course, every judge retains the inherent jurisdiction to ensure that cases proceed fairly. However, the materials and arguments presented by Mr Schwisberg do no more than suggest that something may be lost in a video conferenced hearing,” wrote Corbett.
“Something will be lost if court business does not continue, as best as can be managed, during the COVID-19 crisis.”
Other considerations cited by Corbett included an existing, “lengthy” delay in bringing the case to court. Corbett also noted the hearing would be conducted based on a written record without oral testimony, concluding “there is nothing about this particular case that renders it unsuited for a hearing by video conference.”
“The parties are all represented by experienced and competent counsel, who should have no difficulty making their arguments understood to the court by means of video conference,” wrote Corbett.
“Mr Schwisberg made the argument that the stakes, for his client, are very important. Indeed, they are, as is often the case in matters of professional discipline, a regular aspect of this court’s docket. However, this court has already heard three panel hearings by video conference during the COVID-19 crisis all three of which were of substantial importance to the parties. The relative importance of the case has nothing to do with whether the case can be heard fairly and efficiently by video conference.”
On April 7, lawyers from Lenczner Slaght Royce Smith Griffin LLP noted that courts “absolutely” have jurisdiction to order virtual hearings.
“In many cases, such decisions will be on consent as all parties want to move their matters forward. Yet, in some cases, one or more parties will likely oppose their matters being heard by video or teleconference, either for genuine reasons—they believe it disadvantages their clients’ interests—or for purely tactical reasons—they believe they will benefit from the delay,” wrote lawyers Scott Rollwagen, Sana Halwani and Paul-Erik Veel, who were not involved in the Association of Professional Engineers v. Rew case and did not cite it.
“The inevitable question in those circumstances will be whether the courts have the jurisdiction to order parties to appear by video or teleconference. Our answer to this question is a resounding yes.”
Rollwagen, Halwani and Veel cited section 96 of the Constitution Act. They added that technology could accommodate other principles of hearings, such as open courts.
“While statutory courts do not have inherent subject matter jurisdiction, they do have a form of inherent jurisdiction to control their own process,” wrote Rollwagen, Halwani and Veel.