A New Normal – Pre-certification motions go virtual in Ontario
In a matter of a few months, the coronavirus pandemic (“COVID-19”) has radically altered the normal practice of Ontario courts. The case management decision in Miller v. FSD Pharma, Inc., 2020 ONSC 3291 (“Miller”) provides a good snapshot of the steps taken by the Ontario judiciary to resume “normal” court operations amidst COVID-19. It is also indicative of the fact that there has been a shift in the mindset of courts and judges regarding the use of technology in proceedings with the result that even in a post COVID-19 world, there is likely to be a “new normal” – one that embraces technology irrespective of the complexity of the proceeding.
The parties in Miller had a two-day pre- certification motion in a proposed class action that had been scheduled for early May 2020. However, following the decision to suspend regular court operations in Ontario in March 2020, the parties’ case management judge, Morgan J., issued an endorsement on April 14, 2020 to adjourn the motion until late June 2020. Justice Morgan stated that the purpose of the adjournment was to “give some time for the suspension of regular court operations due to the Coronavirus pandemic to run its course and for the courts to resume regular operations.”
In the weeks that followed the decision to adjourn, “regular” court operations took on an entirely new meaning. The Toronto Expansion Protocol for Court Hearings During COVID-19 issued by the Regional Senior Justice for Toronto, Firestone J., specifically indicated that pre-certification motions in proposed class actions were among the matters that could be heard virtually.
Despite the plaintiffs’ preference to wait so that the motion could be heard in person in court, in light of the above direction and Rule 1.08 of the Rules of Civil Procedure, which authorizes the court to order that a proceeding be conducted by video conference with or without the consent of the parties, Morgan J. ordered the motion scheduled for late June to proceed virtually. He stated that, although he had initially been “wary” of proceeding virtually due to fairness concerns, in a matter of weeks he had “become convinced that counsel and the courts have developed the ability to conduct these hearings in a way that minimizes any of the problems originally foreseen with them.” Irrespective of the size, complexity, or nature of the motion (i.e. interim or final), Morgan J. said there was nothing “inherently unfair to either side”.
Having overcome the fairness hurdle, Morgan J. addressed some of the logistical and practical challenges to proceeding virtually, including a voluminous evidentiary record and distractions at home. He recognized that addressing these challenges requires the cooperation of the parties and the judge overseeing the matter. In the case at hand, Morgan J. was confident that, despite the adversarial positon of the parties, they appeared to have developed a professional and civil working relationship that would enable them to “rise to the challenge of conducting a complex hearing by video conference.”
It is likely, if not inevitable, that when the courts resume regular operations, what is normal will have taken on a new meaning. Judges will expect that parties will continue to “rise to the challenge”. There will, of course, still be in-person motions and trials, but advocates will also need to be conversant with mediums such as Zoom and other equivalent video conference technologies to advocate their client’s position even if they are not in a traditional courtroom setting.