A New Yr’s Decision for Civil Observe: New rule modifications carry civil litigation into the digital age – litigation, mediation and arbitration

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Major changes to the Code of Civil Procedure will come into force on January 1, 2021. The COVID-19 pandemic has fundamentally changed the day-to-day practice of litigation, and these rule changes are a major attempt to capture the pragmatism and efficiency that the pandemic has imposed on litigators in order to keep their files moving.

The changes are contained in the amending regulation.

These changes:

• Establish a procedure to enable a hearing or part of a hearing, mandatory mediation, or oral examination for discovery by conference call or video conference (Rule 1.08);
• to approve an order for an oral examination of a person or a witness in court by videoconference (Rule 20.05 (2) (j.1));
• to authorize the electronic issuance of court documents that require issuance (rule 4.05 (1.1));
• Require the use of CaseLines to submit filings for hearings, pre-trial conferences, and case conferences as required by the court (Rule 4.05.3);
• Approval of e-mail service without consent or court order for documents that do not need to be served in person or as an alternative to personal service (Rule 16.05 (1) (f));
• remove the option of fax delivery (Rule 16.05 (1) (d) is revoked);
• the requirements for the affidavit of the changes in O.Reg. 431/20: Administer the oath or declaration remotely (Rule 4.06 (1) (e));
• Remove the requirement to submit 3 copies of Application Materials, Facts and Transcripts to the Divisional Court if the documents are filed electronically (Rule 61.03).
• Clarification of the processes in connection with the preparation and delivery of a draft decision to the court (Rule 59.03)

Certain of these changes consolidate the move to digital ways of performing some steps in the process process, such as: B. the electronic issuance of court documents and the use of the CaseLines platform to manage document intake in court proceedings. Others are sweeping away anachronistic practices like the use of fax machines.

The most notable of these changes is the provision in new Rule 1.08, which provides for steps such as hearings, parts of hearings, mandatory mediations, or oral discovery exams to be performed virtually. This rule does not apply to proceedings before the appellate court or to case conferences that are believed to be heard via conference call, unless the court orders otherwise. The rule provides that a party seeking a hearing or other step in a process that allows or requires the participation of parties shall determine whether to propose to participate in person, by telephone, or by video conference when initiating that step. In general, it is up to the responding party to object to the proposed method.

How much these changes will affect the day-to-day litigation reality may depend on how the new provisions in Rule 1.08 on the use of video conferencing interact with the cost implications provided for in the new Rule 57.01 (1) (h.1)) . This new clause provides cost consequences if a party inappropriately protests a conference call or video conference under Rule 1.08.

It is not immediately apparent which criteria should or should be used to assess the appropriateness of an objection to a virtual procedure under Rule 1.08. The specific criteria set out in this new rule are the only guidelines in the amendments against which to judge what type of objection may be considered appropriate or inappropriate. Rule 1.08 (6) stipulates that the following factors must be taken into account in order to determine whether a process step should develop virtually:

(a) the availability of conference call or video conference facilities;

(b) the general principle that evidence and arguments should be presented orally in court;

(c) the importance of the evidence in establishing the facts;

(d) the impact of a conference call or video conference on the ability of the court to make determinations, including establishing the credibility of witnesses;

(e) the importance of observing the conduct of a witness in the circumstances of the case;

(f) whether any party, witness or attorney for either party is unable to attend due to infirmity, illness or other reason;

(g) the balance between any party requesting the conference call or video conference and any party or parties who oppose; and

(h) any other relevant matter.

Significantly, with respect to discovery tests and mandatory mediations, the Court must determine the adequacy of a virtual trial by assessing only factors (a), (f), (g) and (h) in the list above. In particular, this excludes the emphasis in 1.08 (6) (b) on evidence and argumentation hearings in public sessions.

Obviously, limiting the factors to be considered in arranging discovery inquiries and making mediation mandatory makes it easier for parties to determine that a party is inappropriately protesting a conference call or video conference in these cases Has.

More generally, however, it remains to be seen how the provisions of Rule 1.08 will change the day-to-day litigation practice once life returns to normal. These new rules by no means establish the assumption that routine steps (other than case conferences) should not be carried out in person, so that, particularly with regard to hearings, the emphasis in sub-rule 1.08 (6) (b) is on “the principle” that evidence and arguments are oral and should be presented in court can result in more motions being brought into the courtroom where one party insists.

It is also noteworthy that the cost consequences mentioned in the new rule 57.01 (1) (h.1) only apply to parties who are unreasonably against a virtual procedure. There is no explicit cost consequence for a party who takes a routine step and insists that they take action personally over the objections of another party.

As with all changes to the rules, how revolutionary they will be depends on how they are applied. The rules have long stated that they must be interpreted liberally “to ensure the fair, expeditious and cost-effective resolution of any civil proceeding in its cause,” but their application has been slow to take into account the efficiency of digital litigation tools can bring. However, the pandemic provided an unprecedented opportunity for courts and lawyers to rethink established habits and focus on what really matters. The changes to the new rules are an important invitation to lawyers and the courts to take advantage of this opportunity.

The content of this article is intended to provide general guidance on the subject. A professional should be obtained about your particular circumstances.

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