Were it not for live video meeting platforms like Zoom allowing for virtual court hearings, the pandemic could well have left our justice system in complete disarray.
Instead, the justice system has shown that digital applications have the potential to make justice more readily accessible than any physical space could possibly allow with the potential of providing an elevated level of transparency.
"The lockdowns of society actually opened up access to the court system, and the significance of this experience cannot be overstated," says timeshare owner Karen Levins, who diligently attended every Superior Court hearing online in the year-long-plus insolvency process of Carriage Hills and Carriage Ridge timeshares in Oro-Medonte Township.
The Horseshoe Valley properties are being sold and profits will be divvied up among the 11,000-or-so timeshare owners — all of whom were given the opportunity to witness the court proceedings from their own homes.
Those hearings were broadcast live on YouTube and attracted up to 1,000 viewers after the Ontario Superior Court Justice Barbara Conway identified the need to make the process ready available to the many interested parties.
The issue of access was considered so important that when one of the law firms involved failed to properly circulate the sign-in details for one of the hearings resulting in very few being able to access it, the firm deducted its fees for that appearance, taking a $10,000 hit.
“Zoom has been a wonderful tool,” says retired Superior Court judge Lydia Olah, who worked in the family branch in Barrie. “I find it extremely effective. With Zoom, everyone is in a secure and safe facility and it is far more cost-efficient.”
The question now, as the prospect of a return to normal nears, is to what degree will hearings be conducted virtually.
In addition to volunteering in what she calls a very successful local dispute resolution program since retiring as a judge in 2019, Olah is also a mediator and arbitrator with Ex Juris ADR Centres in Barrie, which pivoted to the online platform when in-person hearings became verboten during the pandemic.
The recent experience that has allowed everyone to connect from wherever they are has the potential to level the playing field somewhat, resulting in cost and time savings were it to continue, she says.
In mediations, the remote format includes the ability to create breakout rooms, allowing the mediator to work independently with each party, similar to the “shuttle diplomacy” that takes place during in-person mediation.
When everyone involved is able to log in from their own location all those costs related to travel evaporate, resulting in savings for those who ultimately must pay the legal bills.
Simcoe County does have satellite courts, but many people from across the region find themselves having to go to Barrie for some court appearances. Making that trek to Barrie, says Olah, could prove challenging for some. Accessing the court remotely for some of those appearances can make justice a little more accessible.
“So I could see that some of the trials from the satellite courts could be conducted via Zoom” post-pandemic, says Olah.
The retired judge looks back earlier in her career in North Bay when a committee nearly 30 years ago explored expanding electronic services including telephone and video to provide court access to people in outlying locations.
“And that never happened. It just never happened. It took COVID to force the government to expand the electronic services to the courts, to judges and to courts’ administration,” she says.
“In the meantime, other jurisdictions in the United States, in South Korea, in Japan have had video-conferencing services and telephone-conferencing services and electronic filing of pleadings.”
As a criminal lawyer, Gary Pickard is often attending hearings via Zoom with some in a hybrid fashion involving an in-person court, but some people appearing virtually. Very few cases have required everyone to show up at the courthouse during the pandemic, he says.
“I think most of it will be permanent. I don’t think anybody wants to go back to showing up in court and driving through the winter and sitting there all day,” Pickard says. “I think they were trying to get where we are now even before the pandemic… the pandemic has forced them to do it faster.
“This was really the direction we were heading in.”
To help support the virtual process Pickard has dedicated space in his office where clients can attend court virtually. Advocacy groups have also established similar spaces, he said.
He feels many criminal cases were resolved somehow during the pandemic and those that have had to go to trial are now getting dates in the provincial court as soon as October. He expects the wait in Superior Court will be longer.
“Obviously, the pandemic is terrible, but some good has come of it and they’ve certainly advanced things technologically in the criminal justice world, that’s for sure,” he says.
There is potential for the government to support access from remote locations by providing quiet places for those who need it, says Toronto lawyer Kathryn Manning co-chair an e-hearings task force, which developed guidelines early on in the pandemic when in-person court appearances were quickly put on hold.
The task force, established through The Advocates' Society, the Ontario Bar Association, the Federation of Ontario Law Associations and the Ontario Trial Lawyers’ Association, worked with the Ontario Superior Court of Justice to expand virtual access to the courts.
“A lot of participants in the legal system would be very happy for it to stay,” said Manning, adding virtual platforms aren’t always ideal.
All users of the justice system had to figure out the technical requirements and challenges of a digital hearing during the pandemic or face the prospect of having none at all. And the uptick was swift — people figured it out.
And many embraced it.
Certainly, jury trials — which have been largely put on hold during the past 16 months — will be conducted in person. Criminal and litigation lawyers have also indicated that in-person trials are important to allow the judge and lawyers to assess the credibility of a witness. Although, some have said they’ve found that seeing someone on the computer screen is an advantage.
“Right now, it’s (Zoom) the best alternative we have because of PPE requirements and social distancing. But at the same time, it’s something that, as a litigator, we certainly miss, being able to gauge the reaction from a witness,” says Barrie litigation and employment lawyer Josh Valler. “I think, going forward, there is going to be a push to go back into the courtrooms for trials.
“But at the same time if that’s not something that is in the best interest of a particular case, at least now we have an alternative.”
As a lay observer who had direct interest in the insolvency process of the timeshare resorts, Levins says being able to attend was important to her, and obviously to others as hundreds signed on for every court appearance.
"The overwhelming feedback from our Facebook group was praise and appreciation for Madam Justice Conway’s clearly communicated mandate for transparency. This would never have been made visible if we didn’t 'attend' in person, because her instructions for transparency were, in fact, buried in amongst the 120-plus document links that were posted on the Administrator/Receiver’s website," Levins wrote in an email.
"Hopefully, this mandate for transparency doesn’t disappear when society 'returns to normal'."
