A Federal Court trial previously adjourned as a consequence of COVID-19 will now be heard remotely. In an effort to maintain judicial operations during this time of social distancing, Justice Lafrenière in Rovi Guides, Inc v Videotron Ltd, 2020 FC 637 ordered the hearing of the trial to proceed via videoconference and in doing so, provided detailed directions for how the virtual trial will be conducted. A brief summary of certain aspects of the protocol to govern the conduct of the remote hearing is set out below.
The hearing and document management technology
The hearing of the trial was ordered to continue using the Zoom platform, with particular provisions made in order to have necessary break-out rooms and other suitable technological functionality available as need be.
With respect to document management, in addition to the use of the eTrial Tool Kit database, the Court approved the circulation of documents by email or an agreed-upon file transfer system depending on the file size.
The witnesses and their examinations
The Court held that subpoenas were not required and proposed witnesses will instead be treated as if under subpoena for the purposes of making alternative arrangements if they fail to appear by videoconference. While giving evidence, a witness is expected to comply with a specific protocol set out by the Court aimed at ensuring that the witness can be seen and heard, and is not being assisted by documents, scripts, notes or another person. Counsel who intends to call a witness must advise the witness of this protocol, and provide them with a copy of the "Handout for Witnesses" attached to the decision as Schedule "A".
Additionally, the Court set out a specific protocol for documents to be put to witnesses during the hearing. The protocol provides guidelines for preparing a brief of documents, including a document naming protocol that all documents be labelled with the "FC number" identified in the trial database and, insofar as it is feasible, be in PDF format with Optical Character Recognition (OCR) technology applied.
For examinations-in-chief, a copy of any documents intended to be put to a witness must be distributed to the witness and other trial participants prior to the witness' testimony.
For cross-examinations and re-examinations, counsel may choose any one or more of the following methods of putting a document to a witness:
- Transfer individual documents immediately prior to such time as the party intends to put the document to the witness.
- Circulate the documents in advance of the witness' examination and possibly protecting the documents with a password which may be revealed during the course of the examination.
- Provide hard copies of the documents with directions that such documents not be opened until an appropriate time during that witness' examination.
The Court further authorized the use of Zoom's screen-sharing functionality for the purposes of briefly showing a document to a witness such as to orient a witness to a portion of a document.
The loss of internet connection
In the event of a loss of internet connection, the trial will be adjourned until all "essential individuals" have a sufficient internet connection to be able to meaningfully participate in the trial. The list of individuals deemed "essential" differs depending on whether a witness is being examined, legal submissions are being made or motions are being heard, or at any other times. If participants other than the "essential individuals" lose internet connection, the Court has the discretion to continue or adjourn the trial under the guiding principle that the hearing is to continue with all participants in attendance at all times.
To object to a question being asked of a witness, counsel must physically raise their hand or otherwise verbalize the objection. If, however, poor internet connection prevents counsel from promptly raising such an objection, counsel is permitted to still raise the objection after the witness has already answered the question, provided that it is done so as soon as reasonably possible. The Court will then consider the objection and if ruled to be proper, the Court will disregard the witness' answer.
Open courts principle and confidentiality
In view of the open courts principle, the Court outlined the procedure for how members of the public may attend a virtual hearing. The process involves emailing firstname.lastname@example.org two business days before a scheduled videoconference hearing after which the Court will provide an email invitation/link to register for either a Zoom meeting or webinar. Virtual attendance at these hearings will only be to observe as members of the public will have their microphones and cameras turned off. Additional information is expected to be found in a Federal Court posting entitled "User Guide for the Public and Media".
Where confidential information is being heard, the break-out rooms feature on Zoom may be used as appropriate to exclude virtual attendees who are not entitled to hear such information.
Other miscellaneous matters
Understandably, the Court advised counsel to ensure that they and their witnesses have appropriately tested the technical requirements necessary to participate in the hearing.
While use of the Zoom chat functionality for private discussions is prohibited, with prior notice using the audio channel, the Court may permit use of the chat functionality to disseminate information to all parties (eg. a password).
For arguments relating to the relevance or admissibility of evidence which ought not to be heard by a witness, the Court may hear such arguments using the break-out rooms feature on Zoom.
As the Federal Court begins to hear more and more matters virtually, all Court participants must learn to adapt to this unprecedented change in our court system. These directions provide very helpful guidance as best practices for conducting a virtual trial continue to evolve.