From an advocacy stance, 'it's a case-by-case assessment' says Bogoroch's Linda Wolanski
This article was produced in partnership with Bogoroch & Associates LLP.
On April 19, 2022, Ontario Superior Court of Justice guidelines mandating “presumptive methods of attendance” for all manner of proceedings came into effect.
The guideline for discoveries, substantially identical to the guideline for mediations, could not have been promulgated more clearly: “All examinations for discovery will be held in person, unless the parties consent to it being conducted virtually or unless the Court specifies a different mode of proceeding,” it read.
More than a year later, the presumption appears to have fallen under the bus.
“The practical reality, with very few exceptions, is that everyone is continuing to do discoveries and mediations virtually,” says Linda Wolanski, a highly experienced personal injury lawyer at Bogoroch & Associates LLP, a Toronto-based civil litigation boutique whose focus includes medical malpractice and personal injury cases. “The guidelines state that, presumptively, these proceedings must be in person, but very few lawyers are choosing to do so anymore.”
With over 30 years’ experience encompassing complex disability, medical malpractice, dog bites, slips and falls, product liability and motor vehicle accident cases, Wolanski is well-placed to observe the quantum shift brought about by the pandemic.
“Prior to the pandemic, who’d have thought we’d all be on laptops conducting Zoom meetings and sharing screens as the norm for discoveries and mediations?” Wolanski asks. “The last discovery I did when counsel and lawyer attended the examiner’s office involved a client in his eighties who was very uncomfortable with technology.”
Unanticipated as the ubiquity and pace at which virtual proceedings’ emergence may have developed, it all smacks of a perfect storm.
“Insurers love the new way of doing things because virtual proceedings are so convenient and they save a great deal of money,” Wolanski says. “So unless there is a compelling reason to have an in-person proceeding, or unless our clients – to whom we always give the option – prefer one, we’re not going to exacerbate settlement prospects by making insurers do what they don’t want to do just for the sake of it.”
But quite apart from a PI client’s wishes, there are circumstances that call for in-person attendance.
“For example, if the credibility of a party is at issue where it would benefit one side or another to observe the party’s demeanour and body language, or the client isn’t techsavvy or requires an interpreter, in-person may be the way to go,” Wolanski says. “From an advocacy point of view, it’s a case-by-case assessment, so if counsel requests an in-person discovery or mediation, there’s usually a reason for it.”
But clearly, the reasons favouring virtual proceedings are trumping those in support of in-person hearings – and in spades.
“This is happening because clients prefer the comfort of their own home, especially when there are mobility issues and especially when staying home is more efficient,” Wolanski says. “Clients don’t have to drag themselves downtown by hopping on a subway that’s not getting very good reviews right now or perhaps waste time navigating around rush hour construction sites finding a place to park and paying exorbitantly for it. As well, discoveries and mediations can be lengthy, but at home you can grab a drink and lie on the couch when you’re taking a break.”
The flexibility of virtual proceedings minimizes cancellations and delays. Wolanski cites the case of defence counsel whose four-year-old son fell ill on the date scheduled for mediation.
“We did the mediation anyway because defence counsel was able to participate virtually from home and check up on his son during the breaks,” Wolanski says.
And staying home is not the only option for clients. Wolanski, for example, likes to bring her clients into the office for virtual mediations and even for discoveries when clients are not comfortable handling technology on their own.
“Even if they’re not at home, clients are more at ease when they’re in their own lawyers’ offices,” Wolanski says. “That way, they’re controlling their environment instead of being in an unfamiliar setting.”
The conveniences, of course, benefit counsel as well. “You don’t have to lug around computers and productions,” Wolanski says.
“And the technology, like screen sharing, makes handling, identifying and discussing documents much more seamless.”
Virtual proceedings, however, do require more vigilance on counsel’s part.
“You have to make sure the other party is alone with no document in front of her to prevent any possibility of coaching,” she says. “But it’s also true that frequently counsel can’t see the entire room where the opposing party is, and all you can do is caution them and take their word that they’re alone and have no documents.”
Sometimes vigilance isn’t enough, however.
“I was in a discovery where all counsel could hear the voice of the witness’ husband in the background while she was testifying on a contentious liability issue,” Wolanski says.
The discovery was adjourned and defence counsel subsequently obtained instructions to admit liability. Still, there’s no question that technology has depersonalized PI cases – even between counsel.
“You don’t just run into counsel anymore or end up alone in the room with each other when the clients and the examiner have left,” Wolanski says. “That’s why it’s important not to shut off your screen when the formalities are over, because you can still stay online and chat with the other lawyer, just like the old days. It’s still all about advocating for your client, so you just have to ensure that you communicate even when you’re virtual.”
The elephant in the room, however, is: given the popularity and benefits of virtual discoveries and mediations, why did the powers-that-be mandate in-person as presumptive?
“It’s a recognition that discoveries are still really important and can dictate the outcome of a case, so they’ve left it open to counsel to make the judgment call where appropriate,” Wolanski says “At Bogoroch & Associates LLP, our clients come firstregardless of whether the discovery or mediation is virtual or in person. We thoroughly prepare our clients for all important steps in the litigation and proactively move our cases so that settlement can be achieved at the earliest possible date.”