While the courts are closed and the rules suspended, is there anything that condominium corporations can do to advance their lawsuits?
In light of the recent social distancing requirements brought on by the current pandemic, Justice F.L Meyers gave us a clear answer as to whether examinations ought to proceed using video-conferencing in the recent decision, Arconti v Smith. Justice F.L Meyers found that video-conference examinations ought to be required to keep the matter moving.
In his words, “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.”
Examinations for discovery, in this case, were already scheduled to occur, albeit in-person. In this instance, the Plaintiffs were not agreeable to utilizing video conferencing technology, citing lack of due process among other concerns. However, Justice F.L Meyers held that “I respectfully do not find the presence of any “due process concerns” inherent in the format of a video hearing. 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. The only possible “unfairness” is a lack of comfort by one counsel that he or she will be at their best in presenting evidence and making arguments using technology”
Furthermore, Justice Meyers highlighted that we already use technology in our daily lives, thus is it not uncharted territory, “in 2020, use of readily available technology is part of the basic skill set required of civil litigators and courts. This is not new and, unlike the pandemic, did not arise on the sudden.”
Although the use of technology isn’t new, delays may occur while some parties take time to become accustomed to using the available technology. Justice Meyers noted “Efforts can and should be made to help people who remain uncomfortable to obtain any necessary training and education. Parties and counsel may require some delay to let one or both sides prepare to deal with unfamiliar surroundings.”
The takeaway? We should and must do what is within our capabilities to continue our operations with our clients. Of course, there is going to be a learning curve while everyone gets on board with videoconferencing technology and virtual meetings. Certain cases that are very complex, or “document heavy” may not qualify. But there is no reason why, in the vast majority of cases, we shouldn’t all be able to conduct business as usual and even thrive in this situation. After all, “It’s 2020”.
Don’t forget to sign up for this week’s webinar “We are in this together” – Episode 9 of the COVID-19 condo crisis panel. Click here for more information.