COVID-19 Forces Lawyers to Embrace New Technologies

by Chris Fleury
Lawyer using video call technology due to Covid-19 distancing measures

The practice of law is by its nature a conservative endeavor; resistant to adaptation and slow to accept change. This is largely a positive attribute as it prevents radical changes and keeps the legal system functioning in a consistent and predictable way.

But there are ways that this conservative tendency has not been positive. One example of this is lawyers’ slow adaption to technological change. To this day, service of legal documents by fax is the norm. For any millennials reading this who have never heard of a fax, for our purposes consider it an old fashion form of email that was popular in the 1980’s.

With the Covid-19 epidemic shutting down Ontario Courts and disrupting life as we previously knew it, the legal profession is being forced to adopt more current technological standards.  


When it comes to the use of technology, Covid-19 has made changes necessary.

In a compelling and strongly worded decision, Justice Myers on the Ontario Superior Court ruled that the plaintiffs did not have the right to insist on the examination of one of the defendants in person and must proceed by video conferencing technology (Arconti v. Smith, 2020 ONSC 2782). In responding to the plaintiff’s motion Justice Myers wrote:

“It’s 2020”. We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools anymore. We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.”

Justice Myers acknowledged that for more than 20 years the Rules of Civil Procedure have contemplated the use of video conferencing technology for pre-trial examinations. Lawyers simply have not taken advantage of this Rule or this technology.

Modern technologies for a modern legal system.

Lawyers are now on notice that the use of these types of technologies are a “basic skillset required of civil litigators and courts.” As lawyers we must adapt.

The decision also acknowledges the limitations of video conferencing and makes a persuasive case for in-person examinations. Justice Myers acknowledged that “Technology is a tool, not an answer.” In my view the most interesting and persuasive argument for in-person examinations is that:

“[the] physical presence of lawyers and officials in a neutral location creates a solemnity and discomfort for the witness that is important…. A witness sitting in his or her favourite chair at home on video may not feel the same pressure of the occasion as a witness who is face-to-face with an adversarial lawyer in court or in a crowded examiner’s chambers…. the physical discomfort may focus the witness on the event, on the solemnity of the process, and create…a morally persuasive environment.”

Relying more on technology could help the courts move forward after Covid-19.

In the aforementioned case, the need to create a “morally persuasive environment” did not supersede the importance of the case proceeding expediently through the Courts and toward the scheduled trial date.

Covid-19 is creating an enormous backlog of cases that will have to be dealt with when Courts begin to open again. Any technology that keeps cases moving forward and towards resolution will likely be embraced by the Courts. Only time will tell to what extent lawyers will embrace these and other technological changes that are being forced upon us.