COVID-19: Federal Court of Canada orders parties to resume trial remotely

May 25, 2020 | Nicolas Sacha Nesviginsky

During the COVID-19 pandemic, uncertainties related to the duration of the public health emergency and the resumption of judicial activities have forced Canadian courts to adapt. A recent example of this new reality was observed in Rovi Guides, Inc. v. Videotron Ltd.,[1] in which the Federal Court of Canada ordered the parties to resume trial remotely despite the defendant’s procedural and cybersecurity concerns.

The case concerns a patent infringement claim, which began on March 9, 2020. Four days later, the Court granted the parties’ request to adjourn the trial in light of public health measures to limit the spread of the coronavirus. On the same day, the Chief Justice adjourned all scheduled hearings and trials indefinitely. The matter proceeded as an electronic trial, with all relevant documents stored in the Court’s database, eTrial Toolkit.

While the parties initially agreed to resume trial, in person or remotely, Videotron objected to its resumption by videoconference. It argued that it would be unable to have its witnesses testify in person, as Rovi had had the opportunity to do, thus violating its right to procedural fairness.

Following two trial management conferences, and despite Videotron’s requests, Justice Lafrenière stated that any concerns regarding procedural fairness were inapplicable as it had been over two months since Rovi’s witnesses had testified. As such, any potential advantage had, by now, been diluted. Furthermore, pursuant to the Federal Court Rules,[2] it is up to the Court to decide to continue the trial by means other than open court testimony. The Court recognized that the current situation warrants new measures:

“[21] Until a vaccine to prevent COVID-19 is widely available in Canada, or until public health officials lift stay-at-home orders and relax restrictions so as to allow people to travel safely, assemble and return to work, hearings of the Federal Court will have to be conducted remotely using the appropriate, available technology. Given that Court facilities will remain closed for the foreseeable future, Videotron’s objection must be rejected since it would result in delaying the trial indefinitely.”[3]

The Court also addressed Videotron’s concern about the use of Zoom to conduct remote hearings in light of potential privacy and security breaches, coupled with the fact that sensitive commercial and financial documents would be tendered as exhibits. The Court stated that “while Zoom is anything but a perfect platform, the vast majority of the issues have been fixed or patched by Zoom.”[4] Accordingly, it ordered the trial to be conducted remotely using the eTrial Toolkit and Zoom, or any other platform of its choice.

While time will tell whether other Canadian courts will adopt the same stance, we can conclude that judges intend to adapt to this new situation and to enable the judicial system to pursue its work.

[1] Rovi Guides, Inc. v. Videotron Ltd., 2020 FC 596

[2] Federal Court Rules, SOR/98-106, Rule 32

[3] Rovi Guides, Inc. v. Videotron Ltd., supra, at para. 21

[4] Rovi Guides, Inc. v. Videotron Ltd., supra, at para. 23