Virtual Hearings at Administrative Tribunals

The advantages and disadvantages of virtual hearings have been discussed by courts and tribunals in Canada since the onset of the COVID-19 pandemic.

As mobility and in-person gatherings were restricted during the pandemic, courts and tribunals held many hearings virtually. In brief, virtual hearings have advantages in terms of access to justice, efficiency and transparency; to the extent that there are disadvantages of virtual as opposed to in-person hearings, these can be remediated by skilful use of technology.

As Member Wright observed in College of Physicians and Surgeons of Ontario v. Dr. X, 2021 ONCPSD 38, “videoconference hearings are not an inferior necessity; in many circumstances they can be the best way to hold a hearing” (at para. 31); contemporary courts and tribunals have rejected “the proposition that an in-person hearing is necessarily the “gold standard” and anything else is inferior, with videoconference hearings seen only as a necessary evil during the pandemic” (at para. 20).

To begin with, courts and tribunals have regularly taken the view that there is nothing “inherently unfair” about virtual hearings: Miller v. FSD Pharma, Inc., 2020 ONSC 3291, at para. 10; see also Natco Pharma (Canada) Inc. v. Canada (Health), 2020 FC 618, at paras. 31-36; Law Society of Ontario v. Regan, 2020 ONLSTA 15, at para. 7. Courts and tribunals have held virtual hearings even when findings of credibility have had to be made, a point on which in-person proceedings have long been favoured: Law Society of Ontario v. Roper, 2019 ONLSTH 152, at para. 13; McHayle v. Ontario (CEO of FSRA), 2020 ONFST 10, at paras. 25-28; Hart (Re), 2020 LSBC 39, at para. 13; Law Society of Ontario v. Marusic, 2020 ONLSTH 18, at para. 104; Ontario College of Teachers v Mammarella, 2022 ONOCT 87, at para. 93.

Access to justice, efficiency and transparency can all be promoted by virtual hearings. In College of Physicians and Surgeons of Ontario v. Dr. X, 2021 ONCPSD 38, Member Wright denied a motion brought by a physician seeking an in-person hearing, because “the benefits to holding this matter in person are outweighed by the risks and challenges of doing so” (at para. 7). Member Wright noted that virtual hearings can (1) “increase access to justice, by allowing parties and witnesses far from the hearing site to participate without travel” (at para. 17), (2) increase efficiency as they are “are not subject to the same risks of being delayed or cancelled by snowstorms, traffic jams or cancelled/late flights” (at para. 17) and (3) increase transparency by permitting proceedings to be livestreamed so that “any member of the public or media can get the link for a hearing” (at para. 18).

The access to justice and efficiency advantages of virtual hearings were also recognized in First Global Data Ltd (Re), 2020 ONSEC 23, where Member Moseley noted the cost advantages of virtual hearings (at para. 19). Given that access to a well-run virtual platform “requires no special skill or software”, proceeding virtually would eliminate the “cumulative time required for parties, counsel and witnesses to travel to and from the Commission’s hearing room every day”, especially given the Commission’s experience with virtual hearings and the resources made available to participants (at paras. 53-58; see also Decision No.: 2022-0116, 2022 CanLII 12720 (AB WCAC), at para. 27). This was equally true of self-represented parties (at paras. 69-70).

Efficiency advantages are likely to be at their greatest where a matter is being heard on the basis of a written record. Here, a virtual hearing can be a fair and efficient means of disposing of the matter, which depends on the tribunal adjudicating the merit of arguments on the record rather than assessing oral testimony: Association of Professional Engineers v. Rew, 2020 ONSC 2589, at para. 8.

There has been some concern that access to justice, efficiency and transparency might not be fully realized, either because of lack of resources on the part of participants (or potential participants) or because of the inherent limitations of virtual hearings. These were neatly summarized by Member Wright in College of Physicians and Surgeons of Ontario v. Dr. X, 2021 ONCPSD 38, at paras. 13-16:

Technology has its challenges. We are not yet at the point where everyone has stable internet and someone may drop off a Zoom call. This can delay hearings and interrupt argument, examination and cross-examination. I can imagine how frustrating it is for counsel cross-examining a witness to have to stop at a crucial point to wait for someone to return. Counsel for Dr. X also rightly points out that when people talk over one another on a videoconference, one voice will cut out. While participants talking over each other can be a problem in person too, having a voice completely disappear can make examination of a witness more awkward.

It can be easier for counsel to confer with each other, clients or witnesses face-to-face, through whispers or notes during the hearing or discussions during breaks. Electronic tools can address some of these issues – for example, using texts instead of notes – but we sometimes lose something when we talk through screens.

Lack of access to technology may also lead to lack of access to justice. A litigant or witness without access to certain technology may be disadvantaged by using an inferior device (i.e. attending a hearing on a phone) or not being able to participate at all. In this context, that issue has been addressed by having the College IT department give participants access to devices as needed.

There is also a risk of a witness being coached off-camera or looking at documents or notes without the panel knowing. There may be a decrease in formality of the proceedings. The Tribunal will address this in part by adding a promise to the standard affirmation about not relying on anyone or anything else to assist with answers. A witness can also be asked to pan their camera around the room. But I accept that there can be a different atmosphere on Zoom than in a hearing room.

However, many tribunals have met these challenges by providing training to participants (see First Global Data Ltd (Re), 2020 ONSEC 23, at paras. 52-59).

Moreover, courts have observed that the access to justice and efficiency advantages can be replicated in virtual hearings featuring large numbers of participants. In Arconti v Smith, 2020 ONSC 2782, Myers J quoted from an Australian decision where the judge considered the possibility of providing virtual analogues to real-world practices:

Secondly, senior counsel for the Respondent raised with me the real difficulty of the practitioners not all being together in one place for the trial. It is common for the people sitting behind counsel to convey useful and sometimes critical information to senior counsel via junior counsel and likewise junior counsel frequently are able to assist senior counsel on the storm-tossed seas. The ability to do this where everyone is in their own home is certainly degraded. However, in the hearing last month to which I have already referred senior and junior counsel who were isolated from each other communicated with one another and independently of me using WhatsApp. In the virtual hearings I have conducted I have communicated with my associates on an instant messaging platform which has worked well. There is the difficulty of document sharing over such a platform which I accept. Receiving whilst in full flight a WhatsApp message with a document attached is not the same experience as having one’s gown tugged and a piece of paper thrust into one’s hands. Again, whilst I think this is a poor situation in which to have to run a trial I do not think it means that the trial will be unfair or unjust (Capic v. Ford Motor Company of Australia Limited, [2020] FCA 486, cited in Arconti v. Smith, at para. 36.

Myers J commented on the utility of technology to permit large groups to participate meaningfully in hearings: “I note that the Zoom technology, that is currently among the brands being utilized in this court, includes “breakout rooms” in which counsel can meet privately with colleagues and clients” (Arconti v. Smith, 2020 ONSC 2782, at para. 37).

More complex matters may justify an in-person hearing (Chisholm v. Ontario (CEO of FSRA), 2021 ONFST 11, at para. 20) but there does not seem to be any hard-and-fast rule in this regard.

Other administrative tribunals use virtual means either exclusively or by default. Some administrative tribunals are exclusively virtual, such the Civil Resolution Tribunal in British Columbia (Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2022 BCCA 163, at para. 231) and the Condominium Authority Tribunal in Ontario (Condominium Act, 1998, SO 1998, c 19, s. 1.39(2); Condominium Authority Rules of Practice, s. 3(1)(h)). Other administrative tribunals hold virtual hearings by default, such as the Immigration and Refugee Board (see “Practice Notice: Scheduling of virtual, hybrid, and in-person hearings at the IRB”, September 20, 2022) and the Landlord and Tenant Board (see “Updated Practice Direction on Hearing Formats”, November 30, 2022). Canadian courts have generally returned to in-person proceedings, but provide parties with the option to appear virtually (see Court of Appeal for Ontario, “Consolidated Practice Direction Regarding Proceedings in the Court of Appeal During the COVID-19 Pandemic”, s. 74) and sometimes permit public access to hearings via web platforms.

In summary, virtual hearings can enhance access to justice, efficiency and transparency. To the extent that there are obstacles to achieving enhanced access to justice, efficiency and transparency, courts have explained how these can be surmounted.

This content has been updated on July 23, 2024 at 02:24.