Court File and Parties

COURT FILE NO.: CV-16-547346

DATE: 20200918

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Real One Realty Inc. and Jenee Liu

AND:

Jing Liu, Yu De Xing and Lauren Zhan

BEFORE: Madam Justice Steele

COUNSEL: Z.M. Kaslik, for the Plaintiffs

D. Awad, for the Defendants, Jing Liu and Yu De Xing

HEARD: September 18, 2020

ENDORSEMENT

[1] At a case conference held at 8 am on September 18, 2020, I informed the parties orally that I was ordering the trial scheduled for September 21, 2020 to proceed by videoconference and that I would release my endorsement later in the day. The following is my endorsement.

[2] A pre-trial conference was held before me on September 11, 2020 in respect of this matter, which is proceeding to trial on September 21, 2020. The trial is a non-jury trial, scheduled for 10 days. This matter arises out of the sale of a property in Toronto in respect of which a real estate agent and brokerage claim entitlement to commissions.

[3] In the discussion of trial management issues related to courtroom requirements, the Trial Management Report to the Trial Judge noted: “Parties are open to trial in Court or by video conference, as determined by the Court. Preference for electronic trial to the extent possible expressed due to health reasons.” At the time of the pre-conference there seemed to be some agreement among counsel that parts of the trial (such as examinations in chief) would likely proceed in person and other parts virtually (such as opening and closing statements).

[4] On September 17, 2020 an email was sent to the Court requesting an urgent case conference and directions from the Court regarding how the trial would proceed: “It appears counsel is unable to agree, as defence counsel has requested the trial proceed virtually due to health reasons, and plaintiff’s counsel has refused to proceed virtually”.

[5] The Court was also reminded that on March 6, 2020, Justice Archibald made an order that the September 21, 2020 10-day trial was peremptory for all parties.

[6] An urgent case conference was convened, at which plaintiff counsel argued that although there are some parts of the trial that he would consent to proceeding virtually, such as motions, opening arguments, closing arguments, he would not consent to the trial proceeding virtually. Plaintiff counsel is of the view that due to the nature of the trial, potential credibility issues, and the importance of the viva voce testimony, witnesses should be examined in person. There is the added complexity of the need for an interpreter for at least one key witness.

[7] Counsel for both defendants argued that the matter should proceed on September 21, 2020 but should proceed virtually. Neither defence counsel were requesting an adjournment. Both counsel raised health concerns given the recent escalation of COVID-19 numbers in the province. Further, one counsel indicated that due to their heightened health risk and ongoing medical treatments, their physician has advised that risky situations should be avoided to the extent possible.

[8] Rule 1.08 of the Rules of Civil Procedure provides that if facilities for video conference are available, “all or any part” of certain proceedings may be conducted by video conference, including “at trial, the oral evidence of a witness and the argument.” It further provides that if the parties do not consent to proceeding in this manner, then “the court may, on motion or its own initiative, make an order directing a telephone or video conference on such terms as are just.” And, the Rules provide that the presiding judge may set aside or vary such an order.

[9] Rule 1.08 also sets out the factors that must be considered in deciding whether to permit or direct a video conference:

a. The general principle that evidence and argument should be presented orally in open court;

b. The importance of the evidence to the determination of the issues in the case;

c. The effect of the telephone or video conference on the court’s ability to make findings, including determinations about the credibility of witnesses;

d. The importance in the circumstances of the case of observing the demeanour of a witness;

e. Whether a party, witness or lawyer for a party is unable to attend because of infirmity, illness or any other reason;

f. The balance of convenience between the party wishing the telephone or video conference and the party or parties opposing; and

g. Any other relevant matter.

[10] As I am the trial management judge, I will not be the trial judge. However, I am in the position of having to direct how this matter will proceed on September 21, 2020 in light of the brief oral submissions from counsel, the fact that the matter is peremptory on all parties, and the current pandemic.

[11] I appreciate the plaintiff’s position that counsel had anticipated proceeding in person for parts of the matter. However, circumstances have changed over the past week. Yesterday, Ontario recorded 401 new COVID-19 cases, the highest daily increase since early June. Further, the province reduced numbers of permitted social gatherings in three regions, including Toronto. And, as indicated above, counsel for one of the defendants has been advised by his physician to avoid risky situations to the extent possible due to his heightened health risk.

[12] In the matter of Arconti v. Smith 2020 ONSC 2782, Justice Myers considered whether the plaintiffs should be required to conduct an examination by videoconference. In holding that any examinations must be done remotely by videoconference, Justice Myers stated at paragraphs 19 and 20:

In my view, the simplest answer to this issue is, “It’s 2020”. We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools anymore. We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.

That is not to say that there are not legitimate issues that deserve consideration. Technology is a tool, not an answer. In this case, the parties cannot attend in the same location due to health concerns and governmental orders. So, the question is whether the tool of videoconference ought to be required to keep this matter moving or if the mini-trial ought to be delayed further due to the plaintiffs’ desire to conduct an examination for discovery in person.

Justice Myers further noted at paragraph 22 that:

Initially, an order for the use of remote proceedings required the consent of all parties or, in the absence of consent, that a party bring a motion. In 2008, Rule 1.08(3) was amended to enable the court to require remote proceedings at the court’s own initiative. This reflects an evolution of the acceptance of the use and perceived value of remote communication technology whereby it can be ordered even where neither side asks for it or wants it.

[13] I note that the Arconti decision related to examinations, whereas the issue before me relates to a non-jury trial. The Australian case of Capic v. Ford Motor Company of Australia Limited [2020] FCA 486 is instructive in this regard. This was an application for an adjournment of a trial where the respondent was requesting the delay in light of the COVID-19 pandemic. The applicant was of the view that technology could be used and the trial could proceed on the intended date. In this matter, Justice Perram addressed various issues that had been raised by the respondent as to potential difficulties that could be encountered if the trial proceeded.

[14] In the Capic case, Justice Perram made the following remarks before refusing the requested adjournment of the trial, at paragraphs 23, 24 and 25:

If I could be sure that the crisis would have passed by October I would not hesitate to adjourn all the trials in my docket (save urgent cases) and then begin a process of relisting my entire docket from October 2020. The effect of that would be a postponement of six months with all cases being reallocated thereafter. However, there is simply no guarantee that the situation will be any better in six months’ time. It may be that this is a state of affairs which persist for a year or so. It is not feasible nor consistent with the overarching concerns of the administration of justice to stop the work of the courts for such a period. Nor is it healthy for the economy. A prolonged cessation of business will be a very poor outcome. Those who can carry on should, in my view, do their best to carry on as inconvenient and tedious as this is going to be.

…To adjourn the trial because of the pandemic at this stage may be to adjourn it for an indeterminate period. The case has been pending for years and should be resolved if it can be…

Under ordinary circumstances, I would not remotely contemplate imposing such an unsatisfactory mode of a trial on a party against its will. But these are not ordinary circumstances and we have entered a period in which much that is around us is and is going to continue to be unsatisfactory. I think we must try our best to make this trial work. If it becomes unworkable then it can be adjourned, but we must at least try.

[15] I agree with this. I’m not happy ordering a virtual trial on a party against their will. However, we must find a way in these times to keep matters moving. Unfortunately for all of us, we don’t know how long these unusual times may last. We have to embrace technology in the current environment. This may mean doing things through technology that are outside our comfort zone. Through this pandemic we have all had to make significant changes, and technology has played a very significant role in this regard – businesses had to move many or all of their employees to work remotely, many universities are operating their classes online, and courts have continued to hear many matters through platforms such as “zoom”.

[16] I am not prepared to order a trial to proceed in person, which would mean that an individual with heightened health concerns would have to attend at court in person contrary to medical advice, given COVID-19 and the recent rise in cases in the province. I am also not prepared to order the delay of this matter, which was made peremptory on all parties.

[17] While I appreciate the plaintiff’s concern regarding examining and cross-examining witnesses virtually, as opposed to in person, all the parties will be in the same position. That is, all witnesses will be examined and cross-examined virtually. Where an interpreter is needed for a witness, it will be required for both examination in chief and cross. None of the parties are in any better position vis-à-vis the other where the proceedings are held by videoconference. They are all in the same position. All of them are likely wishing that circumstances were different and they could be in court, but unfortunately that is not the case for this matter.

[18] Rule 1.08 is very broad and gives me the discretion to order that this 10-day non-jury trial proceed by video-conference on the Court’s initiative. I have considered the factors set out in Rule 1.08 and, in particular, the balance of convenience as between the party wishing to proceed in person and the parties wishing to proceed virtually. Given the significant health concerns raised by defendant counsel, the recent rise in the number of COVID-19 cases in the province, the fact that the trial on September 21, 2020 is peremptory on all parties and the court has the “zoom” technology in place to proceed, I order the trial to proceed by video conference on September 21, 2020.

Steele J.

Date: September 18, 2020