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Tele/Video Hearings in Ontario during the COVID-19 Pandemic

The COVID-19 global pandemic has significantly changed how Ontario courts and administrative tribunals operate. In response to the pandemic, these adjudicative bodies have adopted the following measures:

Ontario Court of Justice: As of March 28, 2020, all urgent criminal and all urgent family proceedings will be conducted by telephone and/or video conferencing, unless otherwise ordered by a judicial official. Attendance in courtrooms for those matters will be restricted to the judicial official and essential court staff, unless a judicial official orders otherwise.

Ontario Superior Court of Justice: Effective Tuesday, March 17, 2020, all regular operations were suspended except for urgent court matters. Starting on April 6, 2020, matters in addition to “urgent” matters will begin to be heard in the Ontario Superior Court of Justice. The matters that may be heard by the Superior Court vary region to region. See here for a list of the matters that will be heard by each region.

Court of Appeal for Ontario: All matters to be heard on or after April 14, 2020 will be conducted pursuant to this Practice Direction. Essentially, all matters will proceed either remotely or in writing, and the Practice Direction outlines all filing requirements. Instructions for remote appearances are available here.

Ontario Labour Relations Board: the Board has cancelled all in-person hearings scheduled until May 4, 2020. However, the Board has decided to use its discretion not to adjust its time limits for filings.  It will continue to receive applications, responses and any other submissions in accordance with its Rules of Procedure. All representation votes will be held electronically but votes will not be held where a workplace is closed as a result of the current public health situation. See here for a list of the Board’s notices to the community in response to COVID-19.

Human Rights Tribunal of Ontario: the Tribunal has suspended all in person hearings. Written and telephone hearings may be used where feasible.

Although the scale on which Ontario is now conducting tele and video hearings is unprecedented, the use of this technology is nothing new. Importantly, there are instances where using tele or video hearings may not be appropriate. In Sunnybrook Health Sciences Centre v Ontario Nurses’ Association, 2018 CanLII 39866 the union grieved the hospital’s refusal to allow the grievor to work her scheduled shifts during an influenza outbreak because she was not vaccinated against influenza. The union sought to have a key witness, a specialist in hematology, testify via telephone or video conference. The hospital opposed this request because they wanted to cross-examine the grievor in person.

In this reaching his decision on this procedural issue, Arbitrator Surdykowski reviewed the Board’s jurisprudence on when it is appropriate to permit a witness to testify other than in person by using the technology available. In accordance with the case law, he determined that a witness should only be allowed to testify by tele or videoconference in exceptional and compelling circumstances. Arbitrator Surdykowski cited 6 factors from a previous decision that can be used to assess whether circumstances warrant testimony via tele or videoconference:

• The importance of the testimony. 
• The significance of the credibility of the witness.
• The circumstances of the witness. 
• The cost to be incurred for the witness to attend in person.
• The practicality of the arrangements.
• The quality of the videoconference technology available

After reviewing these factors, Arbitrator Surdykowski determined that the circumstances were not sufficiently exceptional or compelling to make it appropriate for the witness to testify by tele or video conference.

Recently, in Ontario v. Ontario Association of Midwives, 2020 CanLII 25862 (ON SCDC), Justice Corbett of the Divisional Court issued a case management endorsement addressing the filing of documents and conduct of the upcoming hearing. This endorsement is useful to practitioners and the public because it shows the format hearings may take during the pandemic. In his endorsement, Corbett ruled that the hearing will be conducted as a video conference using Zoom. The hearing will follow a webinar format and able to accommodate up to 500 members of the public. Neither counsel nor the court will be required to robe for the hearing. Corbett also provided a list of filing guidelines for the hearing in his endorsement.  It does not however appear that this hearing will include witnesses, and presenting evidence to a court of administrative tribunal remains relatively new territory for most adjudicators. 

CCPartners continues to monitor announcements made by all adjudicative bodies as they are made and will continue to update you as they come. If you have any questions related to COVID-19 disruptions, CCPartners is here to help.