May 13, 2020
By Adam Bobker and Anastassia Trifonova
As discussed in the first part of our article, the Courts have been proactive in ensuring that they keep functioning and allow litigation to proceed during the COVID-19 pandemic through electronic means. The recent Federal Court decision in Rovi Guides, Inc v Videotron Ltd1, is a good example of this. The underlying action dealt with patent infringement and the trial commenced on March 9, 2020 (before the suspension period began). The hearing proceeded as an electronic trial with most documents relied on by the parties being managed through the ‘eTrial Tool Kit’, the Federal Court’s document database managed by the Court’s registry. The trial was scheduled for 22 days but after 4 days of evidence, the parties requested that the trial be adjourned given the COVID-19 outbreak and its impact on witness availability. The trial was adjourned, however the parties continued discussions on resuming the trial during the suspension period. Videotron objected to the trial being held without its fact witnesses appearing in person (as was done with Rovi’s witnesses) and expressed concerns over the security of the proposed Zoom platform for videoconferencing. In his decision, Justice Lafrenière rejected Videotron’s objection, noting that until circumstances permit people to travel safely, assemble and return to work in person, hearings of the Federal Court will have to be conducted using the appropriate and available technology. He also held that the trial should continue remotely using the eTrial Tool Kit and Zoom, noting that while the latter platform is anything but perfect, “the vast majority of the issues have been fixed or patched”. Justice Lafrenière stated that the Court’s Technology Committee continues to monitor the security of Zoom to ensure that best technology is used for remote hearings. This trial is now scheduled to resume on May 25 for a duration of 15 days.
The courts also continue to issue new directions and notices to litigants regarding the practice during the COVID-19 pandemic. Most recently, the Federal Court of Appeal released its Notice to the Parties and Profession2, extending its suspension period until Friday May 29, 2020 and temporarily allowing for the remote commissioning, swearing or affirming of affidavits to be used in legal proceedings. During the suspension period, affidavits sworn or affirmed remotely, using methods deemed acceptable in any Superior Court, will be accepted by the Federal Court of Appeal. Stay tuned for more of our updates on these developments.
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