Canadian Lawyer

March 2021

The most widely read magazine for Canadian lawyers

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Page 35 of 43

34 LEGAL REPORT PERSONAL INJURY postponed into May of this year. Boyle adds that court cases in Halifax are booking well until 2023. And as events get pushed further into the future, Boyle says, "things become more detached from the actual events," people get older or more ill and memories dim. Jonathan Noorduyn at Litwiniuk and Company in Calgary says there have been challenges surrounding trials and other hear- ings related to personal injury law that gener- ally would be in court. However, he says the use of remote technology to keep things going has generally improved. Participants' under- standing and use of video conferencing and electronic filing has also improved. "People seem to be understanding and wanting to make it work." There is also, he says, a bit more openness and flexibility toward settlement opportunities as the prospect of civil trials in the relatively near zfuture for personal injury cases dims. "There are opportunities to [move] things forward, actually quicker in some ways." Salter Vecchio's Turner says the legal profession, in general, is going to emerge from this pandemic "much more efficient and resilient and able to deliver services at a more cost-effective and efficient way." That includes improving everything from cheaper photo- copying costs and efficiently sending docu- ments electronically to hiring and retaining the best talent thanks to remote working options. Travel costs and other disbursements would also be reduced. "It's going to be a different, more likely better, world." harder to gauge the jury's reaction to witness testimony because masks must be worn. "I found it really challenging," he says, noting that with missing facial expressions, he only had eyes to go on to make sure they were "getting" the testimony. However, for the most part, the remote aspects of the trial, whether with a jury or without, were a "fairly positive experience," even when expert witnesses had to give complex testimony by virtual means. For the most part, he says, there were not many differences. "Perhaps [it was] a little more distant and harder to get a flow going. But all things considered, we worked through the technical difficulties that occasionally came up." Hooper's colleague and Wagners partner Kate Boyle, who practises more in the area of class actions, says that the types of cases she deals with are known for their long timelines, even to get to the certification stage, let alone a trial, although settlements tend to happen relatively quickly after certification. However, COVID-19 has pushed her cases further into the future. She notes that one case, which was supposed to have been heard last May in Newfoundland and Labrador, was "Without the ability to go to trial, the ability to negotiate goes out the window." Richard Parsons, Collette Parsons Corrin LLP "Without the ability to go to trial, the ability to negotiate goes out the window." However, while the judge and lawyers are expected to be in the courtroom, witnesses and support staff aren't necessarily expected to be there, with much of their work being done remotely. Saro Turner, a partner at Slater Vecchio LLP in Vancouver, says that COVID-19 has derailed even trials or hearings that have been set to go. In one instance, a lawyer in one of the cases on which he was working felt he had "some sort of cold come on." He notified the judge, who said not to come back until he had a negative COVID-19 test, which lost three days of a trial set for 10 days. A similar thing happened to a colleague with a case that was put over indefinitely due to illness that turned out not to be COVID-19. Nick Hooper, who mostly handles medical negligence cases as a partner with Wagners Law Firm in Halifax, says he has been part of both a jury trial and a non-jury trial since the start of the pandemic. At the time, both formats were allowed for civil trials in Nova Scotia. One difference with jury trials under the COVID-19 rule, says Hooper, is that it is KEEPING THE COURTS GOING — VIRTUALLY Electronic sending of document rather than binders Witness testimony via formats such as Zoom, Microsoft Teams Electronic document signing Less travel, courtroom time allows for more productivity

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