May 19, 2020

Ontario Courts Rising to the COVID-19 Challenge – Musings from our Estates Litigation Group

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Within the legal industry, the upheaval and chaos brought on by COVID-19 has rallied cries for immediate reform, greater modernization and improved use of technology. From personal experience, we can say that the Ontario courts and court staff have done a remarkable job of flipping the switch from a slow and antiquated paper-based system to near real-time electronic filings and scheduling. Virtual hearings of motions and applications using telephone and videoconference technology are the current norm.

While we have yet to see the virtual machinery of our courts replicate a full blown trial, we were able to easily follow along and witness some first rate advocacy during an appeal to a 3 judge panel of the Divisional Court, by live-streaming the hearing from our home offices. We have also been able to have an urgent application issued via email and heard and decided within a matter of days. A capable triage judge was able to quickly review our written material and to designate a suitable judge for the hearing. The opposing party’s objection to our filing in one courthouse didn’t carry much weight when our request was clearly stated to be for a telephone or video conference and the triage judge could designate the matter to be heard by any judge in their judicial region.

Overall, we have been impressed and encouraged by our experiences and observations. The judiciary, the legislature, and the bar have all worked cooperatively, and at lightning speed, to bring about changes and provide helpful guidance on pressing issues such as the virtual execution of wills, powers of attorneys and affidavits. Once slow-moving and reluctant to adapt, the Ontario Courts have been quick to embrace technology like Zoom videoconferencing.

Like many of our colleagues in the estate litigation bar, we are excited about the future. There is not a single commentary that we have read from any mediator that doesn’t boast about their success rates using virtual mediation.  We imagine the possibilities of changes to the Rules of Civil Procedure including amendments to the existing rules for out-of-court examinations. In an age of social distancing and working from home, it no longer makes sense for lawyers and parties to lug boxes of documents to a downtown office, where they “hunker down” for a minimum of 7 hours. In an age where the Ontario Courts are capable of receiving and reviewing electronic documents and files, the time and expense of producing written transcripts of evidence can hardly be justified. Why would a judge ever prefer a written transcript to a video recording of the witness giving answers?

The pain and suffering brought about by COVID-19 cannot be overlooked and will not be forgotten. However, much like Chief Justice Morawetz, we believe that there will be a silver lining for the legal system and that the practice of litigation will continue to embrace technology to improve access to justice by making the system less expensive and quicker.

Cambridge LLP is a leader among firms in the practice of estate litigation and estate planning and administration