Court File and Parties

Court File No.: CV-19-614980-00CP Date: 2020-05-27 Superior Court of Justice – Ontario

Re: Anne Miller, Plaintiff And: FSD Pharma, Inc., Defendant

Before: E.M. Morgan J.

Counsel: Albert Pelletier and Ian Literovich, for the Plaintiff Samuel Robinson and Carlo Di Carlo, for the Defendant

Heard: May 27, 2020

Continued Case Conference

[1] On April 14, 2020, I issued a case conference endorsement in which I adjourned the previously scheduled motion dates for a leave motion under the secondary market provisions of the Securities Act (Ontario). At that time, the motion had been set to be heard for two days on May 4 and 5, 2020. I adjourned the matter to June 23 and 24, 2020.

[2] 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. Counsel for the Plaintiff was concerned that it would not be practical or procedurally fair to conduct a multi-day motion on a matter with a voluminous documentary record and complex legal issues by videoconference, and preferred to wait until an in-person hearing became possible. Plaintiff’s counsel was particularly worried that with a multi-lawyer team, where each team member is in a different location, it will be impossible for senior counsel to have the kind of support required during oral submissions if the hearing is done by videoconference.

[3] As is by now well known, the Toronto Expansion Protocol for Court Hearings During COVID-19 issued by the Regional Senior Justice for Toronto has specifically indicated that pre-certification motions in proposed class actions may be heard in a virtual hearing and need not wait until the courts re-commence regular operations. Likewise, Rule 1.08 of the Rules of Civil Procedure authorizes the court to order that a proceeding be conducted by videoconference with or without the consent of the parties.

[4] Both sets of counsel have advised me that the motion materials have long been exchanged, cross-examinations have been conducted, and factums have been exchanged or are on track to being exchanged in the upcoming week. From a documentary point of view, the parties are ready to go on June 23rd and 24th.

[5] Defendant’s counsel is happy to proceed with the leave motion by Zoom or other equivalent videoconference platform. Plaintiff's counsel, however, have reiterated their desire to wait until an in-person hearing can be done in court. They have stressed the awkwardness of doing a complex hearing remotely, and are understandably concerned not to prejudice themselves in any way given that there is substantial money at stake in this action and the rights of the entire putative class rest on this leave motion. In my endorsement of April 14, 2020, I indicated that I was cognizant of this concern and determined that a one-month delay was not too great a price to pay to meliorate any perceived disadvantage by a party to the motion.

[6] Since the beginning of the suspension of regular court operations, some things have changed considerably and other things have unfortunately not changed much at all. What remains unchanged is the unpredictability of the pandemic and the societal shutdown that it has brought about. As matters presently stand, in-court hearings are suspended until July 6, 2020, but there is no guarantee that the courtrooms will be available for personal attendances as of that date. The court administration has indicated that the courts will take their lead from the provincial government in terms of re-opening, and the government is so far non-committal on when the general stay-home orders will be lifted. The public health authorities cannot predict a return-to-normal date with any precision.

[7] What has changed over the past month or two, however, is the court’s overall use of and confidence in virtual hearings. As Myers J. has recently written in Arconti v Smith, 2020 ONSC 2782, at para 33, “…the need for the court to operate during the pandemic has brought to the fore the availability of alternative processes and the imperative of technological competency.”

[8] In the now two months since the courts restricted their operations and the six weeks since my last case conference endorsement in this matter, counsel and the judiciary have come to see remote hearings as a far more regularized part of the legal environment. While in my last endorsement I was wary of potential fairness concerns with a virtual hearing via Zoom or equivalent technology, I have 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.

[9] The ruling in Arconti addressed the question of a remotely conducted examination for discovery prior to an upcoming motion. While presenting a parallel question to that of a remote hearing, Plaintiff’s counsel here points out that it does not typically present the same kind of stakes as a hearing in a class action which could lead to final disposition of the case. I concede that if there are glitches in a major hearing leading to a final order, it could potentially have consequences beyond those in a pre-trial examination that will form only a small part of the evidence in a hearing down the road. That, however, only means that care should be taken to keep everything as fair as possible in the present hearing.

[10] There is nothing about a remote procedure, whether large, complex, and potentially final, or small, straightforward, and interim, that is inherently unfair to either side. This is particularly so now that the legal community has had time to digest the use of virtual hearing technology. As Justice Myers put it in Arconti, at para 33, whatever the strengths and frailties of a virtual hearing, everyone is in the same position: “All parties have the same opportunity to participate and to be heard. All parties have the same ability to put all of the relevant evidence before the court and to challenge the evidence adduced by the other side.”

[11] This applies equally to highly complex matters. It was just yesterday reported that a complicated, multi-party, high stakes appeal of a CRTC ruling on broadband rates will be held by the Federal Court of Appeal over the objection of some of the parties that mirrors the objection of Plaintiff’s counsel here: see Alexandra Posadzki, “Key telecom hearing on wholesale internet rates to go ahead virtually, The Globe and Mail, May 26, 2020, https://www.theglobeandmail.com/business/article-telecom-hearing-to-go-ahead-virtually/.

[12] It is evident that there are logistical and practical challenges to remote hearings – the filing of and reference to a voluminous evidentiary record, the conduct of hearings out of counsels’ homes with its potential distractions, etc. The Ontario Bar Association has published Best Practices for Remote Hearings, May 13, 2020, which addresses many of these issues. As an introductory point, the OBA states, at p. 5, that remote hearings require, among other things, “cooperation, communication and collaboration between parties, both before and during the hearing.” I also acknowledge that in a more lengthy and complex hearing, videoconferencing demands some flexibility from the judge to work with counsel to ensure a well-run hearing that comes as near as possible to replicating the courtroom. What may initially have struck me as potential due process concerns can now be viewed as practical issues to be addressed by work-arounds.

[13] The Coronavirus pandemic is a phenomenon with which courts world-wide are coming to grips. The specific problem of videoconference hearings where legal teams are not all in one location to assist each other was raised and addressed by the Federal Court of Australia in Capic v Ford Motor Company of Australia Limited, [2020] FCA 486:

[S]enior counsel for the Respondent raised with me the real difficulty of the practitioners not all being together in one place for the trial. It is common for the people sitting behind counsel to convey useful and sometimes critical information to senior counsel via junior counsel and likewise junior counsel frequently are able to assist senior counsel on the storm-tossed seas. The ability to do this where everyone is in their own home is certainly degraded. However, in the hearing last month to which I have already referred senior and junior counsel who were isolated from each other communicated with one another and independently of me using WhatsApp.

[14] I have full confidence that counsel in this case, who, while arguing adversarial positions, appear to have developed a very professional and civil working relationship, will be able to rise to the challenge of conducting a complex hearing by videoconference. They have already indicated to me a willingness to work together to provide the court with a convenient method for filing and accessing the voluminous materials through cloud-based storage.

[15] The hearing will take place on June 23 and 24, 2020, as previously scheduled.

Morgan J. Date: May 27, 2020