Embracing technology: Navigating procedures in complex construction litigation during COVID-19 Embracing technology: Navigating procedures in complex construction litigation during COVID-19

In spite of the circumstances arising out of the COVID-19 pandemic, parties continue to proceed through the resolution of complex construction disputes. Some of the steps in the dispute resolution process have been modified as a result of the pandemic and counsel and parties have quickly adapted to many of the new virtual means of dispute resolution. Below we discuss some of the practices that parties and their counsel are now using to navigate in this “new normal”.

Affidavits:

As a result of physical distancing, parties may find that they are not able to meet in person to review, swear and commission affidavits to be used in court or arbitral proceedings. While some Courts may be willing to admit unsworn affidavits based on certain parameters defined by the Court, it is possible to virtually commission affidavits. Given the common use of affidavits in litigation, the Law Society of Ontario offers the following suggestions for virtual commissioning (see here for a full list):

• Ensure that you and the deponent both have a paper copy of the affidavit, including all exhibits in front of them.
• Review each page of the affidavit and exhibits on the video conference to verify that the pages that you and the deponent have are identical. During this process, ask the deponent to initial each page to illustrate that no pages were added after the fact and observe this being completed.
• At the conclusion of the review,
  1. administer the oath, affirmation, or declaration;
  2. listen to the deponent verbally confirm the oath, affirmation, or declaration;
  3. observe the deponent sign the affidavit; and
  4. ask the deponent to electronically share or send a high resolution copy of the signed affidavit with exhibits to you.
• Upon receipt of the electronic copy received from the deponent, you should print it and
  1. compare each page of the copy received from the deponent against the copy reviewed with the deponent during the video conference and ensure they are identical; and
  2. if not previously done, amend the jurat and the way in which the exhibits, if any, are marked to ensure it is clear that the affidavit and its exhibits are commissioned by virtual means.

The Ontario government has posted a draft proposal (accessible here) to add a new regulation to the Commissioners for Taking Affidavits Act to legislate the process for virtual commissioning. Key elements of the proposal include:

• requiring that participants can see, hear and communicate with one another in real-time during the transaction;
• requiring the commissioner to verify the client’s identity;
• Setting out a modified jurat that indicates the document was commissioned virtually and captures the location (city, province) of both the client and commissioner; and
• Requiring the commissioner to take reasonable precautions in the execution of his/her duties as a commissioner, such as ensuring that clients are fully informed and understand what they are signing.

Examinations for discovery:

Many court reporters have set up electronic platforms to allow examinations to be conducted virtually. Keep the following key points in mind in connection with virtual examinations:

• Consider whether multiple monitors will be required for the discovery witness and the witness’s counsel, the examining lawyer and the court reporter. This is especially important when the examination will include questions on technical documents such as contracts, drawings and specifications.
• Consider whether the virtual platform can restrict attendees, such that only those necessary to the examination will be admitted. If others are permitted to attend, consider a mute option so as to minimize disruptions. Also consider whether it makes sense to have a “gatekeeper” monitoring the admission into the virtual platform and a policy that once a person is in the examination, that person cannot leave and then be re-admitted.
• Consider agreeing upon the various technology requirements and expectations for the examination.
• Where possible, conduct a test run before the examination date to ensure all technical issues are addressed before the morning of the examination.

Virtual court hearings:

Notwithstanding that some of the Courts in Ontario have started to open their doors to a wider range of non-urgent matters, many hearings are proceeding virtually, and it is unclear when this practice will abate. The Advocates’ Society has prepared a set of best practices for remote or virtual hearings, which can be accessed here. Some key takeaways include:

• Counsel should consult the specific practice directions applicable to the Court and judicial region to ensure that all requirements are understood.
• Counsel and parties who will be participating should conduct a test run before the hearing date to ensure all technical issues are addressed before the hearing itself.
• Remote hearings require counsel to act with civility, to cooperate and to collaborate both before and during the hearing.
• Parties should not take unfair advantage of the fact that the hearing is held remotely and in particular, should not take advantage of technical issues or mistakes, or inadvertence.

Vacating liens:

Specific to the context of construction lien litigation, there are several notices to the profession that address the process for vacating liens under the Construction Act and counsel and parties should be sure to consult the applicable regional practice direction for guidance. For instance, the Notice to the Profession for Toronto (accessible here) states that:

Subject to resumption of in-person construction lien ex parte court, all ex parte, consent and unopposed construction lien motions will presumptively be heard in writing, unless the master hearing the motion directs otherwise.  Parties are encouraged to continue bringing non-urgent ex parte, consent and unopposed matters in writing pending return to regular operations of in-person construction lien ex parte court

This Notice also sets out various steps for vacating a lien that include using a draft Order that takes into account current necessary directions to the Accountant of the Superior Court of Justice, current pre-conditions to the vacating order taking effect (i.e., the posting of security), and service of the Accountant’s receipt. A copy of the general form of draft order is available here.

Lasting effects?

The Courts have yet to indicate whether any of the changes to practicing litigation as a result of the COVID-19 pandemic will be long-lasting, though the proposal for a regulation regarding virtual commissioning of affidavits seems to indicate a more permanent change. We continue to monitor the effects of the COVID-19 pandemic on the practice of complex litigation. In the meantime, the Osler Coronavirus page, accessible here, remains an excellent resource for all of our COVID-19 related updates.