Examinations for Discovery during Covid: Is Zoom the default?

The Covid pandemic has definitively altered the way litigation is conducted in British Columbia, including conducting examinations for discovery. While the courts struggled initially to adapt to a new way of conducting hearings progress is (slowly) being made.

Trials are still being conducted in person, subject to various Covid related protocols. As of last week, chambers hearings under 2 hours are now being conducted by Microsoft Teams. This finally allows counsel to see whether a judge is nodding with them or rolling their eyes. Some mediations and examinations for discovery are being done virtually and some in person. As courts and litigants alike grapple with the reality that Covid is here for the conceivable future, there does not seem to be any bright lines with respect to when discoveries should be conducted in person and when a person may opt out.

There are clear benefits to conducting an examination of a witness in person, the major one being “discomfort”. The physical presence of lawyers, parties and officials in a neutral location creates a solemnity and discomfort for those being examined which is important to the examination process. Its undeniable that being in a reporter’s office next to your lawyer, a court reporter being asked questions by a live human being creates a necessary feeling of seriousness. Contrast this with a witness (who may or not be wearing pants) sitting in his or her favorite chair at home on video . They may not feel the same pressure of the occasion as a witness who is face-to-face with an adversarial lawyer in court or in a crowded examiner’s chambers. Where the issue is witness credibility, many lawyers (me included) find it crucial to assess the witness in person.

In terms of the Supreme Court Civil Rules, there is no way to “opt” for an examination by Zoom. Under Rule 7-2(14), a person must attend and submit to the examination for discovery and the Notice of Appointment requires a place for the examination to be listed. If there is to be examination by Zoom, it has to be of the court’s own order, not of the option of the examinee.

The Ontario Example

Ontario has produced the first major judicial decisions on these issues. Althought their situation is currently more dire than British Columbia. The decision of Arconti v. Smith, 2020 ONSC 2782 is often cited for the court’s discussion on the need to adapt to changes in the new Covid reality. In Arconti, a party did not want to proceed with an examination of a defendant lawyer by video conference. The court was not prepared to delay the claim until a time where in person examination could be conducted:

[44] In my view, the plaintiffs’ concerns with the prospect of conducting an examination remotely do not outweigh the desirability of proceeding with this matter and do not justify further delay. These actions have been outstanding for several years. The defendants are entitled to have their motion heard just as the plaintiffs are entitled to seek compensation. The plaintiffs’ concerns, in the main, are soluble either by creative alternatives or by increased familiarity with the technology. I do not accept that anything will be lost that is not more than offset by the proportionality of proceeding efficiently and affordably.

Its worth noting Arconti was heard during the early stages of the pandemic when it was not physically possible for the parties to attend in the same location due to health concerns and governmental orders. Protocols and measures have improve significantly.

In Miller v. FSD Pharma, Inc., 2020 ONSC 2253, a request for a virtual hearing was denied on the basis the two day hearing would deal with extensive documentary evidence which would create logistical difficulties for counsel.

The Situation in British Columbia

There is only one reported decision on point in BC that grapples with virtual examinations. In Hudema v Moore, 2020 BCSC 1502 Madam Justice Baker considered whether to grant an application to have examination of parties conducted with parties in the same room in the context of a family claim. With reference to the Arconti decision, Justice Baker readily granted the order for virtual attendance at the examination for discovery despite protocols in existence to address health concerns:

[23] Counsel for the respondent advised me that he has consulted with the reporting agencies and they have protocols in place to conduct discoveries remotely during the pandemic. While in ordinary times it is unusual for parties to conduct discoveries over video technology such as Skype or Zoom, these are not ordinary times. During the pandemic, witnesses’ evidence is often called in trials using these technologies, mediations are routinely now being conducted using remote technology, and discoveries are being conducted routinely using video technology. Given the pandemic, I would easily grant an order that the parties may attend discoveries using remote technologies. The judicial system must adapt and ensure that the participants are safe during these times as they continue to advance their litigation.
[…]
I adopt the reasoning of F.L. Myers J. in Arconti.

However, the circumstances of the Hudema were a bit unique in that there were allegations of abuse between the parties resulting and a no contact order in place. Proceeding with an examination for discovery in the same room would have been contrary to the no contact order and impossible in any event. The court also relied on the fact that public health agencies recommended avoiding unnecessary meetings of people in closed spaces.

As long as we live in the Covid era, there may be situations where zoom examinations will be necessary, especially where a person is immunocompromised or suffers from ill health, and also situations where zoom examinations are not appropriate because credibility needs to be tested in the solemn environment of a court reporter. As public health protocols continue to change and the COVID situation fluctuates, it is unlikely there can be any clear cut rules with respect to whether Zoom examinations for discovery should be the default and whether Zoom is appropriate should be decided on a case by case basis.