Case Law Review: Good News for Family Arbitrators: Zoom Hearings are Just Fine!
Many of us have moved our practices to 100% remote work given the safety risks presented by Covid-19.
A recent decision of Justice Lafreniere of the Federal Court reassures those of us conducting private adjudication by Zoom that we are meeting the requisite standard of due process care to our clients.
The trial in the patent infringement case of Rovi Guides v Videotron (2020 FC 596) had started before Covid-19, and several of the Plaintiff’s witnesses had testified in person. When it came time to schedule a resumption of trial, the Defendant argued that it would be unfair to require them to give their evidence using remote technology when the Plaintiff had been able to give their evidence in person.
It was necessary, for procedural fairness, for both sides to be able to call their fact witnesses in person, argued Videotron’s counsel.
Noting that the Federal Court Rules permit the Court discretion in determining how the hearing is to be conducted, the Court noted that the appropriateness of proceeding by videoconference will depend on the specific circumstances of each case.
“The Court must weigh the relative prejudice that may accrue to any of the parties if a remote hearing is ordered against the general principle..that matters be dealt with in the most expeditious manner on their merits.”
The Court further noted that it does not follow that the ability of the trier-of-fact to assess credibility of a witness, or the effectiveness of counsel in examining a witness, will or will not be impaired by the use of videoconferencing technology.
“Given that Court facilities remain closed for the foreseeable future, Videotron’s objection must be rejected since it would result in delaying the trial indefinitely”.
The Court further endorsed the use of Zoom notwithstanding objections relating to possible security limitations of the platform.
This decision should give all arbitrators peace of mind when scheduling hearings using Zoom.