Virtual Hearing Guiding Principles

Purpose of this Document: This document has been prepared and made available to the parties by the Specific Claims Tribunal (Tribunal) for information on the technical aspects of a virtual hearing (the Hearing). It is not provided as legal advice and should not be relied upon as such.

1. Remote Hearing Technology Procedures

(a) The Registry will advise counsel on connection procedures. A link to connect to the virtual meeting will be sent to the parties the week prior to the Hearing.

(b) Counsel will consult with the Tribunal to determine applicable technological capabilities or restrictions for the Hearing.

(c) The platform will provide real-time connection between Hearing participants. It is not to be used for recording video or other images of the proceeding, other than for the purposes of the Tribunal. The Registry Officer is responsible for recording the audio of the proceeding only and will not be recording any video or images of participants.

(d) Counsel will provide the meeting link and related information to their witnesses and clients as required. Hearings remain open to the public unless the Tribunal instructs otherwise.

(e) It is understood that the Registry Officer will be the “host” of the platform session. During witness examinations, only the presiding Tribunal member, the witness, the examining counsel and one opposing counsel will have their video cameras turned on. Other than these individuals and the Registry Officer, all other participants will be muted and will have their video cameras turned off during the examination. At other times, all other counsel may also participate by audio and video, as appropriate.

(f) Participants are asked to spell their full name when joining the meeting. They can seek the Registry Officer’s help to be renamed if needed prior to the Hearing. Participants can only use the chat functionality to communicate with the Registry.

(g) During breaks, as much as practicable, participants shall mute their microphones and turn off their cameras for the duration of the break, rather than disconnecting from the session. At the appointed time, participants shall turn on their cameras to signal that they have returned from break. The Hearing will not resume until every essential participant has turned on their camera at the end of the break.

(h) The following technical aspects are highly recommended:

  • Disconnect from any Virtual Private Network (VPN) when joining the platform – only a reliable Internet connection is required;
  • Using two screens during the Hearing. One to view participants and the other to view documents; and,
  • If multiple devices are connected to the platform within the same room, only one computer should have its speakers and microphones turned on to avoid audio feedback which could compromise the quality of the audio recording. Another option is to use headsets equipped with a microphone.

2. Witness Preparation and Testimony

(a) The following guidelines apply to the witnesses while they are testifying and to counsel calling the witness.

  • Prior to the Hearing, counsel should enquire with their witnesses on their preference for being sworn in and inform the Registry. If a witness chooses to swear on a sacred object such as a Bible or an eagle feather, the witness must ensure to have the sacred object with him/herself/themselves at the Hearing.
  • While the witness is testifying, the witness should always keep their camera and microphone turned on unless the Tribunal instructs otherwise.
  • While the witness is testifying, the witness shall not review any documents or access any electronic resources other than:

i. Those documents put to them during their examinations as described herein; and,

ii. Documents they may ask and be permitted to review.

  • While the witness is testifying, the witness shall not communicate with any other person about the substance of their examination without first obtaining authorization from the Tribunal.

3. Documents

(a) Documents may be shown to a witness using screen-sharing functionality, including to orient a witness to a portion of a document. The Registry Officer is responsible to display documents on the screen using the screen-share function when prompted by counsel. The Tribunal has full discretion as to the form in which documents may be put to a witness using the platform and other Internet communication protocols.

(b) In advance of the Hearing, counsel for the parties will explain the procedure for marking documents to each witness who intends to mark documents electronically. The Registry Officer will schedule a test to go over the procedure with the parties and the witness(es) at least one week prior to the Hearing (see item 5 below).

(c) One week prior to the commencement of the Hearing, the parties shall electronically file with the Tribunal all individual documents intended to be marked as exhibits. The Registry won’t extract portions of, or manipulate, any documents during or after the Hearing. The parties are responsible for submitting exhibits in their final format. The following guidelines should be applied:

  • Exhibits must be provided in PDF and OCR format; and,
  • An exhibit must correspond to one PDF document. It is not possible to file several exhibits within one PDF document.

(d) During the Hearing, the Registry Officer will mark and file the electronic copy of the exhibits. The following guidelines should be applied:

  • Exhibits will be identified with numbers starting with EX-01;
  • The parties are requested to refer to the electronic page number and not the hard copy page number of an exhibit or document when the screen-sharing functionality is used by the Registry Officer;
  • If a witness needs to mark a document, the Registry Officer can display the document using the screen-sharing functionality and give control of the screen to the witness; and,
  • The electronic copy used by the Registry Officer during the Hearing will be considered the original copy of the exhibit.

4. Loss or Interruption of Internet Connection

(a) In the event that there is a loss of Internet connection to such a degree that an essential individual (as defined below) is no longer able to participate in the Hearing, the Hearing shall be adjourned until all Essential Individuals have a sufficient Internet connection to be able to meaningfully participate in the Hearing.

(b) Essential Individuals include the following:

(i) The presiding Tribunal member;

(ii) The Tribunal Registry Officer;

(iii) The testifying witnesses;

(iv) The counsel conducting the examination-in-chief; and,

(v) The counsel conducting the cross-examination.

5. Test Run in Advance of the Hearing

(a) One or two weeks prior to the Hearing, the parties and the Registry will conduct a joint test run to familiarize themselves with the agreed-upon process and the technology. All counsel and individuals who will be participating in the remote Hearing should participate in this test run.

(b) The test run will include:

(i) Marking documents;

(ii) Discuss the swearing in of witnesses;

(iii) Ensuring that the technology is functioning properly for all participants, including testing the video and audio feed of each party; and,

(iv) Confirming the procedures to follow and taking steps to resolve any technological issues prior to the Hearing, if applicable. If any issues were identified by the participant(s) but not resolved during the test run, they shall make best efforts to get help to fix the issue by contacting their IT support team or any other person who can provide support.

(c) The Registry will provide separate links for the test run and Hearing to the parties by email approximately one week prior to each event. Counsel shall share the links with their clients and their witnesses.

(d) It is recommended that the set up used for the test run be the same set up used during the Hearing, if possible.

6. Virtual Hearing Best Practices and Etiquette

(a) Hearing participants shall have an appropriate technical set-up and observe the etiquette that is appropriate to the nature of virtual hearings. The following list provides best practices that will ensure effective participation in the remote Hearing. However, the list is not exhaustive and is provided with the understanding that the circumstances of each participant may vary:

i. Counsel, parties and others attending the Hearing should participate in a private and quiet space:

  • Minimizing background noise is advisable; and,
  • Counsel, parties and others participating should ensure their microphones are muted when not speaking to reduce echo and background noise.

ii. At the beginning of the Hearing, each participant shall identify him/herself/themselves and any other persons present at that participant’s physical location.

iii. Counsel, parties and others participating should speak slowly and clearly, keeping in mind that possible Internet connectivity issues and technical difficulties could cause delays or unintended sound distortions during the Hearing.

iv. Counsel, parties and others participating in virtual hearings are expected to dress in appropriate professional attire.

v. Unless otherwise directed by the Tribunal, it is not necessary to stand when the presiding Tribunal member joins the Hearing or when addressing the presiding Tribunal member.

vi. Counsel, parties and others participating should ensure that their electronic device is plugged in and fully charged. vii. Counsel, parties and others participating shall join the Hearing 15 minutes prior to the scheduled start time. The Hearing shall not begin until the Tribunal is satisfied that all necessary counsel for the parties and other participants are adequately connected to the platform.

vii. Counsel should consider a way to communicate with clients and co-counsel privately during the Hearing (e.g., email, text messages, etc.) in a manner that ensures confidentiality, is separate from communication channels with opposing parties and allows counsel to keep a record of client instructions. The use of virtual breakout rooms may also be an available option to parties should the virtual meeting platform support the functionality.

7. Other

(a) In the event it becomes impractical or unfeasible to comply with these guidelines, the parties may seek such further orders and directions from the Tribunal as may be required.