The fundamental value of in-person proceedings is being questioned
While the pandemic has been with us for more than a year, many of the long-term impacts are just coming into focus now.
The first phase of the pandemic, which involved a panicked retreat from offices, courtrooms and other public spaces, is well behind us. Even the second phase, with Zoom calls, virtual hearings and paperless proceedings the new norm, seems well entrenched in the lives of most lawyers these days.
The third phase, which we are arguably now witnessing, is when the longer-term impacts come into focus.
For consumer-facing areas of the law, such as personal injury, a shift in how trials are done has followed this trajectory. At first, trials stopped and delays mounted. Eventually, virtual proceedings and physical distancing protocols allowed some proceedings to get back on track. But now, as the logistical difficulties of hearing witness testimonies and running jury trials causes further delays, the fundamental value of in-person proceedings is being questioned.
Is credibility better determined in person? Does a jury deliberating together in a room result in better access to justice? These questions, seemingly sacrosanct a year ago, are now being asked across the country with a new urgency.
In a recent decision, Justice David Brown wrote that he has “no hesitation” in concluding it is in justice’s interests to grant a stay of the Divisional Court order that reinstated the jury notices. No doubt more judges across Canada will come to the same conclusion, prioritizing expediency over sticking to a traditional approach.
For business clients, the cultural shifts are different but no less profound. While companies were hit hard by the pandemic like everyone else, they were quick to move to the second phase of virtual proceedings and paperless filing when the cost savings were apparent.
In the third phase, as arbitrator Louise Barrington says, businesses are realizing the “enormous financial savings” in holding hearings virtually. Without travel costs, “you can participate without spending a penny. That will have very far-reaching repercussions,” says Barrington.
While many the long-term impacts of the pandemic are still very much unknown, one thing is certain. There is no going back.