Like the construction industry, which has been the subject of criticism for a number of years for falling behind the productivity curve by failing to embrace technology-based tools, the courts have been subject to much criticism in failing to adapt to the “modern age” or to embrace technology. Perhaps one silver lining to the COVID-19 Pandemic (the “Pandemic”), has been the accelerated implementation of technologically based tools by both the construction industry and the courts to overcome the hurdles arising from the need to maintain “physical distancing’.
On Wednesday, September 30, 2020, the Construction and Infrastructure Law Section of the Ontario Bar Association (“OBA”) heard from Case Management Master Todd Robinson of the Superior Court of Justice (Ontario), Faren Bogach of Weirfoulds LLP, and Lena Wang of Glaholt Bowles LLP (the “Presenters”). The Presenters provided insight into the new world of virtual litigation, and tales from the trenches of the first virtual construction lien action in Ontario. The need for technology based solutions to overcome the health restrictions arising from the Pandemic, has led to virtual litigation, including discoveries, mediations, arbitrations, hearings, motions, and trials, which have become a new reality since March 2020. Construction litigation, particularly lien actions, are usually document-intensive undertakings and construction lawyers must be prepared to continue to move matters forward, even in the virtual world. This article provides a summary of the best practices and key takeaways for construction litigation in the new virtual world, but many of these best practices are applicable to all types of litigation.