Ontario Court Addresses Tech Competence as a Tool to Increase Court Access.

Before we start, here’s an old-fashioned challenge.  “Old-fashioned” in the sense that you are not allowed to do any research or to ask for assistance.

What is a Gestetner?

Anyone who  emails me the correct answer will receive a spot on the next #fiveforfriday Honor Roll in Legal Ethics.

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Last week on his LawSites blog, Robert Ambrogi posted Ontario Court Lays Down the Law on Technology Competence and Video ProceedingsThe post recounts a discovery dispute that resulted in this order.

In short, Plaintiff’s counsel wanted to conduct in-person witness “examinations.”  Ambrogi reports that an “examination” is the equivalent of a deposition.  Defense counsel objected to appearing in-person, asking instead to proceed remotely.

The order summarizes the competing arguments.

Plaintiff’s counsel, who is in Toronto, argued that “that he has gone to a Toronto Blue Jays game with thousands of fans. Society is opening and he should be able to examine for discovery in person. He adds that in his view it is the ‘best’ method to conduct an examination well and properly.”

Meanwhile, the Ottawa-based defense countered that “we are in the fourth wave of the pandemic. While some parts of society are re-opening with appropriate precautions, the defendants prefer not to get together in an examiners’ office with the parties opposite, staff, and the crowd of other counsel, parties, and witnesses often there for other cases.”

In the end, the court sided with the defense, ordering that, absent an agreement to appear in-person, the examinations would be done remotely.  In reaching its conclusion, the court made several observations on how tech competence can increase access.  For example,

  • “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. Avoiding paying a lawyer to come to Toronto or to go to another place is also\significant cost savings for a client through virtual proceedings. Lawyers can participate in proceedings in multiple locations on the same day virtually. The increase in efficiency in their practices is substantial.”

Next, the court conceded that there are risks associated with virtual proceedings. Specifically, participants’ unfamiliarity with technology, off-screen coaching, and an informal setting that is not as likely to result in a “solemnity for the process.”

Nevertheless, noting that technology continues to evolve in helpful ways, the court concluded that, even when the pandemic ends, we shouldn’t necessarily “just go back to the way it was.” Doing so “assumes that the ‘good old days’ were actually good.”

Finally, and as Ambrogi reported, here’s where the court laid down the law on tech competence and court access:

  • “As to the balance of convenience and any other relevant matters, [Plaintiff’s counsel] submitted that just because virtual procedures are ‘easier and more convenient’ does not overcome the presumption that examination in person is the best way to examine a witness. Au contraire I say. Efficiency, affordability, and enhanced access to justice trump counsels’ comfort and presumptions every time. With the current pace of change, everyone has to keep learning technology. Counsel and the court alike have a duty of technological competency in my respectful view.”

Then, after noting that more experienced attorneys might not be as familiar with technology as newer lawyers, the court stated:

  • “Technological change affects everyone. Once upon a time, I had to learn how to use a Gestetner (Google it) and then a fax machine. I do not accept that in person is just ‘better’. It can be in some cases. But if counsel just prefers it because he or she is more comfortable with it, ought we to reject the printer because I liked my Gestetner (and Word Perfect for that matter)? The balance of convenience favours easier and more convenient processes with accompanying cost savings.”

There you have it. Competence includes tech competence, and tech competence can increase access.

Who’d have thunk it?

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