In Flying E. Ranche Ltd. v. Attorney General of Canada 2020 ONSC 8072, Justice Schabas recently rejected an adjournment sought due to pandemic-related delays, and ordered a class action trial to proceed via Zoom. In doing so, he confirmed that the courts have adapted to conducting proceedings virtually and that parties are expected to make similar efforts and adhere to court-ordered schedules for virtual hearings.
This action was commenced in 2005, arising from the impact of the federal government's response to Bovine spongiform encephalopathy (mad cow disease) on Canadian cattle farmers. Similar class actions were commenced in other provinces but were suspended or postponed in favour of the Ontario proceeding. A 77-day trial on the merits was scheduled to begin in January 2021.
In December 2020, the defendants sought an adjournment, stating for the first time that the COVID-19 pandemic had impacted their readiness and they require more time to prepare for trial. The defendants also raised concerns about their ability to meet with and prepare their witnesses virtually and stated some of their witnesses wished to have counsel present while they testified. As a result, the defendants sought to adjourn the trial until September 2021.
COVID-19 not a sufficient reason to request an adjournment
Justice Schabas postponed the commencement of the trial by two weeks but declined to adjourn the trial. He noted that the pandemic has been ongoing for many months, and in that time the courts and the legal profession have learnt how to prepare for and conduct remote proceedings using videoconferencing platforms and other technologies. Moreover, at no point prior to December 2021 had the defendant raised any issue regarding COVID-19's impact on trial preparations.
In response to the defendants arguments that they would not be able to sufficiently prepare or communicate with their witnesses remotely, Justice Schabas noted that “[t]he use of virtual breakout rooms and other means of communication (e.g., chat functions, email, texts and telephone) between co-counsel and with witnesses (where appropriate) has allowed for very effective communication during hearings.”
Justice Schabas concluded that an adjournment would be contrary to the interests of the parties and the administration of justice, both of which would be better served by ensuring the timely delivery of justice, particularly during this unprecedented public health crisis.
This decision underscores the Ontario Superior Court's expectation that class actions scheduled for trial in the coming months proceed virtually. Since the release of this decision, Chief Justice Morawetz emphasized in the Notice to the Profession and Public Regarding Court Proceedings, that all non-jury proceedings should proceed virtually wherever possible. Despite their length and complexity, the Court has signalled that class action trials are not in and of themselves a reason to require an in-person hearing. Counsel and parties should therefore take the necessary steps to adapt to the use of videoconferencing platforms and other virtual meeting technology as an essential tool in class proceedings for the duration of the COVID-19 pandemic.
Originally Published by Osler Hoskin, February 2021
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