VIRTUAL ARBITRATION – 4 PRACTICE ISSUES
April 8, 2021 | Joseph J. Sullivan, C.S., Q.Arb.
Recently, I was appointed as arbitrator to conduct an Insurance Act priority dispute between two auto insurers and the hearing proceeded by way of videoconference. Under section 20 of the Arbitration Act 1991 and on consent, I exercised my power to “determine the procedure to be followed in the arbitration and I used one of the popular videoconferencing programs. Novel issues arise with these hearings distinct from in-person arbitrations.
After the arbitration appointment has taken place and after the agreement has been signed, we moved on to the pre-arbitration conference stage. Among other items, I review the proposed procedures for the virtual hearing. I noted that counsel and myself were all very familiar with the use of the videoconference program we would use, but attention should be paid to the innovative process.
1. I advised the parties that I would be the host of the videoconference. This gave me ultimate control over the technology to avoid any missteps along the way. Arbitrators don’t have the luxury of court staff to set up the videoconference, which is fine with me as I like to be in command of my own procedure.
2. As I prepared the Notice of Hearing, I recognized that all participants on the videoconference including counsel, parties, witnesses and court reporters must give me their email addresses. What if an important witness refuses or doesn’t have email? I can issue a Summons, but what else can be done? I instructed counsel it was their responsibility to obtain the email addresses for their witnesses and if this became a problem, we could discuss at a later pre-arbitration conference. The matter gets dicier if a witness or party does not have the ability to connect to the hearing. I included a paragraph in the Notice notifying the parties that they should contact me to resolve these issues at a special pre-arbitration hearing. Typically, any technologically challenged persons have a friend, daughter, son, niece, etc. with a laptop, iPad, or iPhone to assist with the connection to the hearing. This all must be sorted out well in advance of the hearing date.
3. Court reporters are booked by counsel, if desired. With priority disputes, this usually takes place as large sums of money may be on the line. Of course, I need the reporter’s email contact information. The major reporting services have adapted well to the new virtual world. Don’t forget the court reporter during the hearing: many times on videoconferences, someone will “drop off” unexpectedly due to a tech glitch. If that person is the reporter, the transcript stops.
Evidence often moves quickly at trial or arbitration and I must avoid a circumstance where the reporter has been lost for many minutes. My practice is to check the participant listing on the Zoom program to make sure I see everyone, and I verbally check with the reporter every 15 minutes or so. If we have lost the reporter, we need to backtrack. This would be unfortunate if it occurred during an aggressive cross-examination where valuable admissions were made by a witness. A restart or do-over would advantage the witness who would be prepared for the cross-examination onslaught. If the evidence changed, the arbitrator might have to put the previously unrecorded evidence out of mind.
4. The Oath Administration has some important yet minor requirements. Under section 29(3) of the Arbitration Act, I have the authority to administer oaths to witnesses. In the videoconference realm, I turn to Ontario Regulation 431/20 (Commissioners for Taking Oaths Act , RSO 1990, c.17 as amended) which authorizes the administration of the oath “without being in the physical presence” of the witness.
There are a couple of technical requirements unique to virtual oaths which are simple but should not be overlooked by the arbitrator. Any error here arguably destroys the integrity of the arbitral record which is a serious obligation of any arbitrator. If witnesses are not sworn or affirmed properly, this would be a solid ground for later appeal.
First, a “record” must be kept of the virtual oath. I was careful to have it noted what that “record” was. I declared that our court reporter’s transcription was that record of the administration of the oath. If one did not have a court reporter, I suppose the arbitrator could create hers or his separate record of the oaths administered separate from the arbitrator’s personal notes bearing in mind that the arbitral record must be available in the event of an appeal.
Second, the arbitrator must note the location of the person administering the oath and that of the witness. This was simply read into the court reporter’s transcript.
These are easy requirements to follow but important nonetheless to protect the legitimacy of the evidence and the proceedings.