In light of the Omicron variant, in-person civil jury trials have been suspended in Ontario. This has impacted many cases, which were slated for trial in January 2022. One of these cases was Fraser v Persaud. In Fraser v. Persaud, 2021 ONSC 8429, the motor vehicle accident case was at risk of not being heard in 2022 (7 years post-accident). Therefore, plaintiff counsel requested that the matter proceed virtually. Defence counsel objected to this request. They wanted to wait to have the trial in-person. But, this could push the trial from January 2022 to January 2024.

Justice Richetti ordered that the trial proceed virtually.  In making his decision, Justice Richette noted that Rule 1.08 of the Rules of Civil Procedure allows for a trial by video conference. Additionally, Chief Justice Morawetz strongly encourages the use of virtual trials, where possible.

There were also many other factors in favour of a virtual trial. These factors included:

a. Plaintiff counsel’s desire to avoid an in-person trial, given his age (77 years old), and the contagiousness of COVID.

b. The trial had already been adjourned before. The future of in-person trials remains uncertain. There are large backlogs and staff shortages.

c. The case would have to be delayed at least two more years for an in-person trial in Brampton.

d. The events occurred more than 6 years ago. There is a risk for memories fading. Credibility is harder to assess with the passage of time.

e. Defence counsel’s argument that credibility is easier to assess in-person, without providing any specific details as to how this applies to this case, was not persuasive. The court has heard many serious cases virtually in the pandemic.

f. Most of the witnesses are doctors or experts who have provided written reports.  Credibility becomes less of an issue where expert reports are filed.

g. Justice Richetti found no factors in favour for waiting two years for an in-person trial.

This case shows the need for counsel to proceed virtually where possible to shorten pandemic related delays in the courts.

(This article was originally posted on Canada’s largest online legal magazine.)