Webinars and Some Thoughts on What Will Change and What Will Stay the Same

Predicting the long-term consequences of the COVID-19 pandemic has become a cottage industry. It is also something of a fool’s errand as the medium- to long-term outcomes depend in large part on how many waves of COVID-19 sweep over us and how bad the effects are. Nonetheless, for what little they are worth, let me offer a few observations.

To begin with, I have mostly enjoyed the move to online formats for academic panels and CPD events. I have done quite a few public and private events since the onset of the pandemic. For instance, for the Canadian Institute for the Administration of Justice, I did Six Months of Vavilov and, last week, with the Centre for Law, Technology and Society, Making Sense of the Making Available Right.

On the whole, my sense is that these events have worked very well. It is sometimes difficult to gauge an audience’s reaction to particular points but, equally, with a Powerpoint to lean on, a speaker can be confident of covering all relevant material. Question time is also much more effectively used, in my view: questioners who would be reluctant to approach the microphone in person can type their questions; and questioners who might deliver the notorious ‘shorter speech disguised as a question‘ are unable to monopolize the discussion (full disclosure: I am one of those questioners!). Moreover, webinars significantly increase the audience a speaker can reach, as people do not have to make it to a physical location to join in, and because organizations in far-flung places can invite a speaker from afar without having to arrange travel and bear the expense of getting the speaker to the venue — and of course, the personal and environmental costs of travel are avoided.

The downside is the loss of personal interaction. On the one hand, it is harder to know when the audience is reacting poorly to a particular point. In real life, a speaker can adjust on the spot but online this is not possible. On the other hand, the conversations and personal capital developed at the coffee break and over lunch are lost. It can also be difficult to sustain a discussion over a long period of time. Day-long academic conferences which are tolerable and even successful because of our ability to read non-verbal cues, disappear to the restroom to recharge and so on, are much harder to run online.

On balance, though, I find that the upsides are greater than the downsides. I predict that webinars are here to stay, certainly for short events and panels.

In other areas, reliance on electronic communication is likely to increase in response to the pandemic. The Canadian Council on Administrative Tribunals has a very useful list of resources for those moving some or all of their functions online. Ontario has legislated for electronic proceedings through the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020, s. 3(1): “A tribunal may conduct a hearing in person, electronically, in writing or by a combination of any of them, as the tribunal considers appropriate”. Section 7 provides that the legislation is to be repealed “on a day to be named by proclamation of the Lieutenant Governor”. I predict that this day will never come, such are the advantages to administrative decision-makers of being able to use whatever technology seems appropriate to the task at hand.

Judicial practice is also likely to change. Of course, some courts have already been using technology to grease the wheels of the legal system. As Stratas JA observed in Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108, at para. 4:

These things are largely old hat for the Federal Courts. For us, the pandemic has merely accelerated the pace of reforms we have been working on. For several years, we have been increasingly open to receiving and working with electronic documents. For even longer, we have offered video-conference hearings instead of in-person hearings. For even longer still, we have determined most motions on the basis of written materials alone. That often allows us to provide informal advice and guidance, particularly to unrepresented litigants, on how to progress their cases to hearing.

Other courts are likely to appreciate how technology can facilitate the smooth handling of litigation, especially on routine matters such as scheduling. I fondly remember my one and only trip to Brampton as an articling student to make ‘submissions’ in relation to the scheduling of a trial (which everyone knew was going to settle beforehand anyway); I spent most of the morning reflecting on the waste of time and resources occasioned by having a courtroom full of lawyers wait to speak with the judge for a couple of minutes about trial dates. I hope these days are behind us but as is said, predictions are difficult, especially about the future.

There is plenty of scope for substantive hearings to be conducted via electronic means. Judicial reviews, for example, which do not involve the consideration of live testimony, are a class of matter which lend themselves to videoconferencing or even written submissions (supplemented, perhaps, by teleconference discussion with the judge). As DL Corbett J observed in Association of Professional Engineers v. Rew, 2020 ONSC 2589, at para. 8, setting a matter down for an electronic hearing over the objections of one of the parties:

[T]here is nothing about this particular case that renders it unsuited for a hearing by video conference.  The hearing is conducted on the basis of a written record: no oral testimony will be heard.  The parties are all represented by experienced and competent counsel, who should have no difficulty making their arguments understood to the court by means of video conference.  Mr Schwisberg made the argument that the stakes, for his client, are very important.  Indeed, they are, as is often the case in matters of professional discipline, a regular aspect of this court’s docket.  However, this court has already heard three panel hearings by video conference during the COVID-19 crisis all three of which were of substantial importance to the parties.  The relative importance of the case has nothing to do with whether the case can be heard fairly and efficiently by video conference.

I am less hopeful that substantive matters will continue to be heard regularly by electronic means once the waves of COVID-19 have subsided, as courts and counsel are so used to in-person appearances. But at least the pandemic has helped to demonstrate that there are alternatives to the traditional methods of proceeding; and any increase in the use of technology is likely to improve access to justice. Sometimes it takes a systemic shock to change a system for the better.

This content has been updated on June 30, 2020 at 13:38.

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