Virtual Discoveries Likely Here to Stay

The decision in Worsoff v. MTCC 1168, 2021 ONSC 6493, deals with a dispute over whether examinations for discovery should take place in person or by videoconference.

The plaintiff wanted to examine the defendants’ representatives in person.  The defendants objected to this and wanted to proceed by videoconference.

Justice Myers indicated that the method of attendance for examinations should be the subject of agreement among counsel or a quick, summary determination by the court on little, if any, material.

Justice Myers stated that a party who insists on a particular method of attendance should have a good reason for declining to cooperate when someone else puts forward an alternative preference supported by a reason.  He stated that, in most examinations for discovery, “parties are hard-put to show that there is a difference that actually matters practically” in terms of in-person or virtual attendance.

Further, Justice Myers indicated that most examinations for discovery are routine fare.  He said that even if some feel that conducting discoveries in person is “better”, the degree of difference in a routine step is of little import in most cases.  He did not agree that discoveries need to default to in-person attendance because it is “better”.

Moreover, Justice Myers stated that virtual proceedings have proven to be one of the first significant enhancements in access to justice since the Hryniak decision was decided in 2014.  He noted that he was not addressing trials or cross-examinations on affidavits, but for examinations for discovery, Justice Myers saw no good reason to put the defendants to any increased risk of COVID-19 or to make their lawyer travel from out of town for the discoveries.

Therefore, the discoveries were ordered to proceed by videoconference.