Ontario's Pandemic Procedure.

AuthorKing, Alyssa S.
PositionSpecial Issue: COVID-19 and the Law

Introduction I. Global Civil Procedure and Pandemic Procedure II. Common Solutions A. Challenges to Trans-Substantivity B. The Trial III. What Are Ontarian (and Canadian) Procedural Values? A. Access to the Multi-Link Courthouse B. Legality Conclusion Introduction

Around the world, courts have scrambled to adapt to an environment in which even dropping off documents poses a risk and small courtrooms with closed windows are often an unacceptable danger. Now urgent solutions are starting to gel into new policies. In Ontario, and elsewhere, these policies often rely on procedural borrowing. This sort of borrowing was going on before the pandemic and many of the solutions that are emerging reflect these existing trends. In examining these trends, it is useful to distinguish two types of procedural borrowing that share a family resemblance.

The first is global civil procedure, which is drawn from "the procedural rules, practices, and social understandings that govern transnational litigation and arbitration". (1) A global civil procedure norm is one adopted "with the purpose of making that jurisdiction or provider more competitive in attracting transnational litigation or arbitration", although that reason may not be the sole reason reformers want it. (2)

The drivers of pandemic procedure have less to do with attracting more litigation business than with managing what already exists. However, both pandemic procedure and global civil procedure developments have been driven by comparison and by coalescence around a few solutions. These solutions are not necessarily best practices, but they are common ones, and that ubiquity by itself is an advantage. Ontario's pandemic procedure could accelerate trends that also exist in global civil procedure, including moves away from trans-substantivity and common law-style trials. Global civil procedure has less to say to the value judgments underlying procedural choices. Although borrowing procedure can be a good strategy, Ontario should be sure that it aligns its changes with broader procedural values so that they support access to justice and legality.

  1. Global Civil Procedure and Pandemic Procedure

    Global civil procedure and pandemic procedure overlap in terms of the people and discourses that help develop and spread them and in their reliance on the ubiquity of a rule as a reason for adopting it. Global civil procedure users are not just multinational businesses and law firms who serve them, but also foreign parties and the international human rights organizations and lawyers they may engage in their causes. (3) Often, procedure that is familiar to these parties, and especially to their lawyers, is valuable because it is familiar and the lawyers know how to use it. Relative ubiquity then becomes an independent reason for other jurisdictions to adopt this procedure, especially if, like London or Singapore, they want to invite foreign parties in. (4) As procedure becomes more common, it also becomes common sense, and so global civil procedure can spread far beyond its original context, eventually becoming part of reform proposals that do not factor in transnational litigation at all.

    Mobility plays a part in procedural harmonization. Lawyers at multinational firms may work in a variety of jurisdictions. Arbitrators, who are sometimes former judges, may leave their home jurisdictions to sit somewhere else. We academics play our part. We bring in students and hire colleagues from abroad. We fly off (or Zoom in) to conferences. Those of us in international and comparative law depend on these exchanges to do our work. Even those who do not think of themselves as comparativists will find themselves comparing to other provinces and other countries. If you want to answer questions such as "what methods might a judge use to control the costs of e-discovery?" comparison is how you do it. (5)

    Competition for and the demands of transnational parties are factors in the choice to adopt global civil procedure. Eventually, procedural rules that seem to be successful can take on a life of their own, with more and more jurisdictions adopting them because others already have. An example is the creation of rules allowing class or collective actions. The existence of class actions in the United States, amajortradingjurisdiction, helped encourage their spread abroad. Others, notably European countries, offered alternative models. (6) Parties that could not get into US court sometimes wanted access to collective tools at home. (7) Along with some demands in this mode, the European Union's market integration efforts have pushed its member-states towards a model that more closely resembles the US federal rules. (8) Class actions developed in Canada to the point that they were common sense--the Supreme Court of Canada decided that it was within the authority of an Alberta court to create a class, despite the province not having a statute. (9) Comparisons continue to shape class action law in Ontario. The Supreme Court of Canada struck down Uber's arbitration clause in Uber Technologies Inc v Heller because the clause offered access to an expensive individualized process as opposed to a collective one, (10) an issue much debated in the US. The Ford government's bid to control class actions by adopting a stricter commonality requirement recalls rules developed by conservative US jurists, and reactions to it may reflect opinions of the US experience. (11)

    As COVID-19 spread, the pressure was on to adapt court procedures as fast as possible, and it was often directed at personnel with limited time and resources. It is difficult to imagine a more perfect situation for borrowing and for the quick emergence of global norms. Pandemic procedure is unlike global civil procedure in that the transnational is not necessarily an important part of the equation, even at the outset. Jurisdictions are trying to develop solutions for a wide variety of users at once rather than focus on the needs of transnational users. Yet some similarities also exist. The development of pandemic procedure in Canada has relied heavily on comparison and on the mobility of, or in this case Zoom access to, global procedural experts. (12) As with global civil procedure, common solutions are emerging, and ubiquity is a value in and of itself. As I argue below, some of these solutions have their roots in global civil procedure.

    Global experts were well-placed to offer their services in response to COVID-19. One prominent expert, United Kingdom academic Richard Susskind, began to track developments around the world in an effort to determine best practices across jurisdictions. (13) Law firms have joined in, documenting changes...

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