Canadian Lawyer InHouse

August/September 2020

Legal news and trends for Canadian in-house counsel and c-suite executives

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10 LITIGATION Adam Bobker is a partner at Bereskin & Parr LLP. His practice focuses on the litigation of patents and other intellectual property rights, as well as intellectual property-related commercial disputes. Anastassia Trifonova is an associate at Bereskin & Parr. Her practice focuses on litigation in all areas of intellectual property, including patents, trademarks, copyright, industrial design and confidential information. THE COVID-19 crisis has created unique chal- lenges for courts, litigants and practitioners. When distancing restrictions to avoid trans- mission of the virus were first implemented in March, courts responded swiftly. Deadlines to carry out pre-hearing steps in existing proceed- ings and limitation periods to commence new proceedings were suspended. Many hearings were postponed. Nevertheless, courts have remained open through the use of e-filing and telephone and video conferencing. The justice system had been somewhat behind the times when it came to the use of electronic documents and communications technologies. That being said, in the Federal Court, which sits across the country, the court has been using its dedicated video confer- encing facilities quite routinely to allow counsel to attend hearings remotely. Nevertheless, having had to quickly increase the use of e-filing and electronic communications tools during the pandemic, these tools will only become more commonly used in the courts. The courts have even, in some cases, been proactive about ensuring that cases proceed during the pandemic through electronic means, despite the parties' expressed concerns about doing so. The recent Federal Court decision in Rovi Guides, Inc. v. Videotron Ltd, 2020 FC 596 (May 6, 2020) is an example. The court had started hearing the trial of this patent infringe- ment action on March 9, before the suspension period began in the Federal Court. The hearing was already being conducted as an electronic trial with most documents relied on by the parties being managed through the Federal Court's document database managed by the court's registry. The trial was scheduled for 22 days, but after four days of evidence, it was adjourned due to the COVID-19 outbreak. The parties discussed resuming the hearing during the suspension period. Videotron objected to its fact witnesses appearing by video when Rovi witnesses had appeared in person and expressed concerns over the security of the proposed Zoom platform for videoconferencing. The trial judge, 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. The trial resumed virtually via Zoom in accordance with a detailed protocol (Rovi Guides, Inc. v. Videotron Ltd., 2020 FC 637) governing the conduct of the remote hearing. The trial protocol included guidelines for witnesses and for exchanging documents for examinations and cross-examinations. The virtual trial in this matter was completed on June 17 (Federal Court Docket No. T-921-17). In the May 13 notice to the profession, titled "Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media," Ontario Superior Court Chief Justice Geoffrey Morawetz specifically directed counsel to move cases forward, including seeking and attending virtual court attendances. Moreover, where COVID-19 prevents lawyers and parties from fulfilling their obligations, they are expected to "explain to the court why COVID-19 has rendered compliance not feasible." The Supreme Court of Canada has also began conducting virtual hearings, including a series of appeals that were heard via Zoom from June 8 to June 19 (Supreme Court of Canada's Agenda dated May 29, 2020). The hearings were livestreamed on the court's website and observer spaces were available to ensure the open-court principles were upheld. As the COVID-19-related restrictions ease and businesses begin to reopen, many safety precautions still remain, including the require- ment of social distancing. Even though some courts will resume in-person hearings this summer, it is unlikely that litigation can be conducted in the same manner as it had been done pre-pandemic. The further adoption and implementation of electronic systems and technologies in the courts' operations are likely to continue and lead to broader moderniza- tion of the civil justice system as a result of the pandemic. Courts adopt electronic technologies amid COVID-19 It is unlikely that litigation will ever be conducted in the pre-pandemic manner, write Adam Bobker and Anastassia Trifonova "Even though some courts will resume in-person hearings this summer, it is unlikely that litigation can be conducted in the same manner as it had been done pre-pandemic."

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