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Federal Court and virtual and electronic trials

May 14, 2021 - Albert Brunet

The Federal Court has put wind in the sails of virtual and electronic trials during the COVID-19 pandemic, even in a case involving highly sensitive and confidential proprietary information.  Justice Lafrenière’s trial management decision in Rovi Guides, Inc. v. Videotron Ltd., 2020 FC 596, provides a strong answer to those who may seek to delay justice until another, post-pandemic, day.

The circumstances in the case are unique, as the trial of this patent infringement action was already underway in March 2020 when public health requirements forced the trial to adjourn after four days of evidence.  In the weeks following the adjournment, counsel discussed various options for the continued hearing of the trial. However, counsel to one of the parties objected to its fact witnesses appearing virtually. Counsel argued that this would unfairly advantage the other party whose fact witnesses appeared in-person prior to the adjournment. The same party also expressed concerns about the security of using the Zoom videoconferencing platform.

In his decision, Justice Lafrenière rejected these two objections, finding they were not true impediments to a fair and safe virtual trial. He observes that the Federal Court Rules expressly allow for hearings to be conducted by videoconference and that any benefit that may exist from having heard one of the party’s fact witnesses will be lost by the passage of time between the in-person portion of the trial and the continuation through video conferencing. While Justice Lafrenière accepted that attendance in-person “is the rule and generally preferable”, he observed that given the circumstances, such objections would result in delaying the trial indefinitely.

Regarding the security of the Zoom platform, Justice Lafrenière writes that the Federal Court Technology Committee has been monitoring the appropriateness and security of various platforms. While certain security issues regarding Zoom had been identified, they appear to have been resolved. In any event, the Court indicated its willingness to consider the use of various platforms, and that it would decide on the platform to be used prior to the continuation of the trial.

The Federal Court has shown that while it is alive to the significant challenges and risks involved in proceeding virtually and electronically, these are outweighed by the injustice of an indefinite adjournment. Importantly, Justice Lafrenière also indicated that he would be willing to reconsider his Order should developments occur regarding the COVID-19 pandemic causing a material change in circumstances.  

Justice Lafrenière aptly concludes his decision by citing Mr. Justice Nye Perram’s observations in a recent Federal Court of Australia matter:

[…] 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.

In this unprecedent period, counsel and the Courts should heed these wise words. While it may not be perfect, as officers of the Court, lawyers must at least try to ensure access to justice through access to the Courts. Where the Court offers a way, counsel should find a will.