Winter 2020 – Newsletter
Welcome to In|Sight, Rogers Partners’ quarterly newsletter that offers our unique perspective on relevant legal issues and the internal happenings of the firm.
Courts have been hesitant to find a defendant liable for damages caused by the intentional tort of a third party. This notion was reinforced in Teglas v. City of Brantford et al, 2020 ONSC 7408 (“Teglas”), a case which involved an assault in a parking garage.
Justice Turnball found that even though the owner of the parking garage and a security company breached a duty of care owed to the plaintiff, the breach did not cause the plaintiff’s damages.
Teglas involved a personal injury action commenced by the plaintiff, Mihaly Teglas, arising from an unprovoked assault by two unidentified assailants in the stairwell of a parkade on February 24, 2012.
Mr. Teglas alleges that the defendants, The Corporation of the City of Brantford (the “City”), and Romex Security Inc. (“Romex Security”), were negligent for their failure to take proper security measures to keep the parkade safe for customers.
Damages were settled before trial. The action proceeded to trial on liability only.
Security at the Parkade
The City contracted with Romex Security for security services of a parkade, consisting of a three level parking garage, which included about 950 parking spaces, located in downtown Brantford, Ontario.
The system of security described by the City and Romex Security appeared to be quite thorough. Highlights of their security system included security staff on site 24/7, patrols conducted of the parkade every 45 to 60 minutes, a sophisticated electronic tracking system to monitor the exact time and location of the guard conducting the patrols, 24 unmonitored video cameras, an additional guard during busier times, and signage posted to notify that video cameras were in operation.
However, given that the altercation occurred in the stairwell, an obvious weakness in the security system was that no video cameras or signage were in the stairwell.
The Plaintiff’s Expert
David Black was qualified as an expert for the plaintiff to provide evidence with respect to threat/risk assessments. He explained that a threat/risk assessment mainly consists of identifying threats and making recommendations to eliminate or minimize such threats.
After his examination of the parkade, he concluded that no risk assessment had previously been conducted. He advised that this was in breach of a 2009 amendment to the Occupational Health and Safety Act R.S.O. 1990 c. O.1 (“OHSA”), which imposes an obligation on employers to conduct workplace analyses to identify risks which might lead to workplace violence or harassment.
He outlined various problems with the parkade, and specifically the stairwells, and opined on what could have been done to reduce risk, such as installing security cameras in the stairwells.
Analysis at Trial
At trial, the court considered the following issues:
1. Did the defendants owe the plaintiff a duty of care?
2. Did the defendants breach that duty of care?
3. Was it reasonably foreseeable that a breach of the duty of care might cause someone injury or loss?
4. Was the breach of a duty of care the cause of the plaintiff’s loss?
Duty of Care
Justice Turnball found that a duty of care was owed because both defendants assumed responsibility to see that persons entering into the parkade were reasonably safe while on the premises and that there was sufficient proximity to the members of the public who use the parkade.
Breach of Duty of Care
Justice Turnball found that both defendants breached their duty of care to the plaintiff because they failed to take reasonable care to carefully consider and recommend and/or implement reasonable measures to make the stairwells of the parkade safe for lawful users. Therefore, they failed to meet the standard of care to mitigate the foreseeable risk created by potential torts of a third party.
Justice Turnball found that the parkade was frequently attended by loiterers and homeless people. Moreover, based on police incident reports, the parkade was a regular concern on almost a weekly basis to the police.
Measures that should have been implemented included installing security cameras in the stairwells and installing sensors so that supervisors could confirm that the stairwells were being examined by security guards on a somewhat regular basis.
Justice Turnball found that it was reasonably foreseeable that the staircases in the parkade were a place of potential danger. He said that the nature of the specific occurrence need not be foreseeable. Instead, it is sufficient that the general nature of the occurrence be foreseeable.
Justice Turnball referred to Rankin (Rankin’s Garage & Sales) v. J.J. 2019 SCC 19, where it was held that whether something is “reasonably foreseeable” is an objective test. In other words, the test is whether a third person in the position of the defendants would have reasonably foreseen the type of incident which could lead to injury or loss by a lawful user of the premises.
The plaintiff’s action failed on causation.
Justice Turnball found that even if the defendants had taken all the proper steps to fulfill their duty of care, the incident could not have been prevented.
In reaching his decision, Justice Turnball was guided by the Alberta Court of Appeal’s decision in McAllister v. Calgary (City) 2019 ABCA 214 (“McAllister”). In McAllister, the plaintiff was injured in an unprovoked New Year’s Eve assault as he was crossing a walkway towards a train station. The assault lasted 22 minutes. The two security guards monitoring the security cameras failed to notice it.
The Court of Appeal in McAllister found that even if all the proper steps had been taken by the defendant’s employees, at least 10 minutes would have passed before the police and/or security personnel could have arrived at the scene. Therefore, the defendant was responsible for some of the plaintiff’s damages because its security personnel did not respond in a timely way, but was not responsible for the damages sustained in the first 10 minutes of the assault.
In comparison, Justice Turnball reasoned that, based on the evidence, the entire altercation between Mr. Teglas and the assailants took about 30 seconds. He stated that even if video cameras were installed with a central monitoring system, it was very unlikely that the security guards could have responded in a timely way to prevent Mr. Teglas from suffering his injuries.
In addition, Justice Turnball was not satisfied that the presence or knowledge of video cameras would have deterred the assailants, as there was no evidence of loitering in the stairwell.
In tort actions, it is important to remember that a breach of a duty of care is not sufficient to prove liability on a defendant. The plaintiff must also show that the breach caused his or her losses. To put it another way, in order to establish causation, the plaintiff must prove, on a balance of probabilities, that but for the conduct of the defendant, the plaintiff would not have suffered injury or loss.
This case also serves as a reminder to occupiers of their duty to ensure that people entering onto their premises are reasonably safe. Occupiers are not required to eliminate all risks. However, if it is reasonably foreseeable that someone on the premises can be physically harmed due to a violent act, an occupier must carefully consider and implement reasonable security measures.
In Webster v. Inneractive Security Services Inc., the Ontario Superior Court of Justice recently granted summary judgment in a case where the plaintiff had sustained injuries at a heavy metal concert while dancing in a crowd.
In November 2015, the plaintiff went to a heavy metal concert. Shortly after the music started, he was found lying on the ground, severely injured, surrounded by a crowd of people. As a result of the incident, the plaintiff is an incomplete quadriplegic.
The plaintiff sued multiple defendants, including a security company, for negligence, occupiers’ liability and breach of the Ontario Liquor Licence Act.
The defendants brought a summary judgment motion to have the plaintiff’s claim dismissed.
The plaintiff submitted, among other things, that the security guards at the concert should have been better trained or engaged in different and better procedures.
He argued that there should have been pat downs and weapon checks, and that, following his fall, the security guards should not have moved him.
The defendants argued that the plaintiff could not prove what action had caused the injury, and had not put forward any credible theory as to who or what caused the injury.
Justice Skarica cited paragraph 49 of Hryniak v. Mauldin, which indicates:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
He stated that all three of those factors were met in this case.
Justice Skarica stated that the plaintiff had not provided a sufficient factual basis to establish that the harm was a reasonably foreseeable consequence of the defendants’ conduct.
He indicated that someone in the defendants’ position should not have reasonably foreseen the harm to the plaintiff. He held that the defendants had acted reasonably in the circumstances, which is all that was required.
Notably, Justice Skarica distinguished this case from cases where there is a prior risk of violence or risk of a violent confrontation.
He added that there was insufficient evidence of the defendants creating an objectively unreasonable risk of harm.
With respect to the plaintiff’s allegations against the security guards, Justice Skarica noted that there was no evidence that any of these alleged defects contributed to the plaintiff’s injuries. He added that there was no medical evidence indicating that the security guards injured the plaintiff by moving him after his fall.
Occupiers’ Liability Act Claim
Justice Skarica emphasized that the responsibility of an occupier is only “to take such care as in all circumstances is reasonable.” He stated that occupiers are not liable for any and all damages suffered by people on their premises. The plaintiff did not prove a breach of the Occupiers’ Liability Act.
Liquor Licence Act Claim
As there was no evidence that the plaintiff was intoxicated at the time of the accident, there was no violation of the Ontario Liquor Licence Act.
The court concluded that there was no genuine issue for trial, and the summary judgment motion was successful.
While the principles applied in this case are well-known, Webster v. Inneractive Security Services Inc. acts as a reminder that the fact that a plaintiff sustains an injury on a premises, no matter how severe, does not equate to a finding of liability against an occupier.
 2020 ONSC 6957.
 2014 SCC 7.
There are many frustrations in the litigation process, the most recent of which crossed my desk during the course of an examination for discovery of an opposing party where at the conclusion of my examination, the opposing lawyer chose to conduct a re-examination of their witness.
The Applicable Rules
The right of a lawyer to re-examine his or her own witness is governed by Rule 34.11(1) of the Rules of Civil Procedure which states that a person being examined for discovery may be re-examined by his or her own lawyer and by any party adverse in interest to the examining party.
The Rules stipulate that the re-examination shall take place immediately after the examination. Pursuant to Rule 2.03 of the Rules of Civil Procedure however, the court may dispense with this requirement where the interests of justice so require (for example, if the witness became seriously ill and could not proceed).
Rule 34.11(1) itself is silent to the scope of re-examination during examinations for discovery, but does include a clear prohibition against a re-examination taking the form of a cross-examination. The Ontario Court of Appeal addressed the nature of this concern in the context of a criminal proceeding and recognized that a witness, who in many instances favours the party who calls him or her, may readily agree to the suggestions put in the form of a question rather than give his or her own answers to the question.
The Rules in Practise
The primary purpose of an examination for discovery is:
(a) to enable the examining party to know the case he or she has to meet;
(b) to enable him or her to procure admissions which will dispense with other formal proof of his or her own case; and/or,
(c) to procure admissions which will destroy his or her opponent’s case.
An examination for discovery can be a carefully crafted and strategically planned dissection of your opponent’s case, where there may be issues or questions you purposefully chose not to ask or explore during the examination (while at all times being fair to the witness and the evidentiary record).
On the other hand, the purpose of re-examination is to allow a witness to correct or clarify answers given during the examination that may be wrong or ambiguous.
The case law is clear that counsel is not entitled to use re-examination as a “wide-open opportunity” to neutralize the effect of any favourable admission received by the examining party and/or to conduct lengthy examinations with a view to recasting the opposing party’s examination in a more favourable light. Rather, this effort should be reserved for the party’s examination-in-chief at trial.
The Court considered this type of situation in Roumeliotis v. David where counsel went beyond the scope of permissible re-examination and was found to have embarked upon a new avenue of examination with two proposed questions, both of which invited a yes or no answer. The following is one such example:
Q. You talked – Mr. Ozere put a letter to you from Dr. MacGregor that she had written to your family physician, Dr. Davidson, where you had indicated to her that you thought you were 50 per cent better.
Q. After the injury and over the course of the year since the date of the injury, has there ever been an occasion where you thought that you were 50 percent better?
The Court agreed with the examining party that counsel was attempting to address new issues that had not arisen during the examination for discovery process. The questions were found to be leading and constituted cross-examination of the witness.
At all times during the examination for discovery or re-examination process, counsel should remind themselves of the words of Master Dash:
Counsel must not communicate with his or her client during the examination except on the record, and even then, this communication should be made sparingly so as not to interfere with the flow of the examination. Counsel must not lead his or her own witness after the witness has given a damaging or incorrect answer since this serves to cue the witness to offer an explanation for his damaging answer. Counsel must not suggest directly or indirectly to the client how a question should be answered.
Remedying the Breach
Where the Court finds that counsel asked improper questions during re-examination, it may order that the answers to those questions be struck from the record of the examination for discovery.
As such, and if you find yourself in the midst of a re-examination where you feel counsel is asking questions beyond the bounds of permissible re-examination, whether that be in an effort to rehabilitate testimony that is damaging to their client’s case or otherwise, it would be sensible to make your objections regarding the impropriety of said questioning known on the record.
Thereafter, and in the aftermath of the examination, consider whether it is necessary to move to have the Court strike the answers from the record of the examination for discovery, if counsel will not otherwise agree.
If you find yourself considering whether to re-examine your witness at the end of an adverse party’s examination, consider whether it is most appropriate to do so, or whether it would be better to provide any necessary clarification, correction or completion of the answer in writing after the conclusion of the examination.
 Green v Mirtech International Security Inc, 2012 ONSC 7500, at para. 13
 R. v. Rose (2001), 2001 CanLII 24079 (ON CA), 53 O.R. (3d) 417 (Ont. C.A.) at p. 421
 Green v Mirtech International Security Inc,, 2012 ONSC 7500
 Roumeliotis v. David, 2004 CarswellOnt 426,  O.J. No. 471
 Kay v. Posluns (1989), 71 O.R. (2d) 238 (Ont. H.C)
 Roumeliotis v. David, 2004 CarswellOnt 426,  O.J. No. 471 at para. 14
 Ibid at para. 14
 Ibid at para. 17
 Madonis v. Dezotti, 2010 CarswellOnt 2195, 2010 ONSC 2180 at para. 16.
 Roumeliotis v. David, 2004 CarswellOnt 426,  O.J. No. 471 at para. 18
 Rule 31.09(1)(a) of the Rules of Civil Procedure
In today’s digital society, we give our personal information to organizations all of the time, sometimes unknowingly. Even when we provide an organization with consent to collect our personal information, we often do not know how it is being used or whether it is being shared with others.
Other jurisdictions have stringent measures on the collection, use and disclosure of personal information. In May 2018, the European Union implemented the General Data Protection Regulation (“GDPR”). This was significant in the global effort to drag privacy law into the digital era.
Prior to its enactment, governments around the world had been trying to fit a square peg into a round hole, applying pre-digital and pre-internet legal precedent on privacy to a world that had dramatically changed. The GDPR has been held up as a model for regulation of personal information, and a laudable attempt to strike that key balance between privacy and economic activity.
Now it looks as if Canada may soon have its own answer to these 21st century challenges, in the form of Bill C-11, which had its first reading on November 17, 2020. Bill C-11 would replace the Personal Information Protection and Electronic Documents Act (“PIPEDA”), and would introduce real and significant changes to the law of privacy in this country.
Consumer Privacy Protection Act
Part of the Bill is the introduction of the Consumer Privacy Protection Act (“CPPA”). The CPPA’s stated purpose echoes the push and pull between personal privacy and business operations:
…to establish — in an era in which data is constantly flowing across borders and geographical boundaries and significant economic activity relies on the analysis, circulation and exchange of personal information — rules to govern the protection of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances.
While the CPPA sets out to attempt to strike a balance between privacy and economic activity, the key sections of the Act clearly tilts the playing field in favour of consumer rights and remedies.
A key purpose of the CPPA is the accountability of organizations. Similar to PIPEDA, every organization will have to implement a privacy management program. This will include putting into place policies, practices and procedures regarding:
(a) the protection of personal information;
(b) how requests for information and complaints are received and dealt with;
(c) the training and information provided to the organization’s staff respecting its policies, practices and procedures; and
(d) the development of materials to explain the organization’s policies and procedures put in place to fulfil its obligations.
Organizations will have to take the following factors into account when determining whether a “reasonable person” would consider it appropriate to collect, use or disclose personal information:
(a) the sensitivity of the personal information;
(b) whether the purposes represent legitimate business needs of the organization;
(c) the effectiveness of the collection, use or disclosure in meeting the organization’s legitimate business needs;
(d) whether there are less intrusive means of achieving those purposes at a comparable cost and with comparable benefits; and
(e) whether the individual’s loss of privacy is proportionate to the benefits in light of any measures, technical or otherwise, implemented by the organization to mitigate the impacts of the loss of privacy on the individual.
As with PIPEDA, consent is needed to collect, use or disclose an individual’s personal information, but this requirement is expressed in stronger terms in the CPPA.
The CPPA provides for fines and penalties that are much more significant than PIPEDA. An organization found not in compliance with the Act can face penalties of up to $10,000,000 or 3% of the organization’s gross global revenues (whichever is higher). If an organization knowingly breaches certain sections of the Act that relate to the reporting of privacy breaches, or interferes with the Privacy Commissioner of Canada’s investigation, it may face penalties of up to $25,000,000 or 5% of gross global revenues (whichever is higher).
Further, the CPPA introduces a statutory private right of action for individuals affected by breaches of the Act. The relevant section of the proposed Act reads in part as follows:
Damages — contravention of Act
106 (1) An individual who is affected by an act or omission by an organization that constitutes a contravention of this Act has a cause of action against the organization for damages for loss or injury that the individual has suffered as a result of the contravention if
(a) the Commissioner has made a finding under paragraph 92(1)(a) that the organization has contravened this Act…
Such a cause of action would only arise if a finding by the Privacy Commissioner of Canada (“Commissioner”) that the Act was breached is either not appealed, or is dismissed on appeal.
A plaintiff would need to show that damages or injury resulted from the breach of the CPPA. This represents a new horizon for litigants, in terms of articulating loss and damage in the context of collection, use, or disclosure of personal information. It can be anticipated that actions commenced pursuant to the CPPA will borrow heavily from the case law on the tort of intrusion upon seclusion, and specifically the idea that a breach of privacy itself, in certain contexts, entitles an individual to compensable damages.
Personal Information and Data Protection Tribunal Act
The second proposed piece of legislation forming part of Bill C-11 is the Personal Information and Data Protection Tribunal Act (“PIDPT”). The PIDPT would create a new body (“the Tribunal”) that would be responsible for ordering the penalties outlined above for breach of the CPPA. The Commissioner would have the power find that a breach of the CPPA had occurred and to order an organization comply with the Act.
Jurisdiction to order penalties under the CPPA, however, would rest exclusively with the Tribunal. If a matter is brought before it by either the organization or the Commissioner, the Tribunal would have the right to seek submissions from both. It would have the power to order penalties regardless of whether the Commissioner recommended that penalties be imposed.
Bill C-11 outlines a number of other requirements on organizations as relate to the collection, use, and disclosure of personal information. For example, the Bill seeks to clarify the circumstances in which personal data may be exchanged and shared across borders, and clarifies to some extent the circumstances that amount to proper collection, use and disclosure of personal information.
On the other hand, Bill C-11 makes it easier for individuals to access and transfer their own information that is held by an organization, so that it can be reviewed and challenged by the individual.
Response from the Commissioner
Bill C-11 has only passed first reading, so there is much debate still to be had on the form and content of the proposed Acts and other changes within. He will be called upon to provide submissions to Committee on the legislation, but on November 19, 2020, the Commissioner already published his preliminary thoughts.
The Commissioner’s impression is primarily supportive of Bill C-11, pointing to the clarity of the proposed Acts, and to the fact that it would provide the Commissioner with real powers to issue orders.
The Commissioner did, however, express some hesitation regarding the fact that the penalties to back up these orders would lie with a different body (The Tribunal). He also expressed concern that this additional layer of bureaucracy would impact the remedies available to individuals affected by breaches of the new Act.
Brave New Digital World
Most of the commentary surrounding Bill C-11 has been positive. There is recognition that legislation of this nature was long overdue, and that it is high time that Canada follows the lead of the European Union and its GDPR.
If there is surprise at the proposed Bill, it is with respect to its ambition: in its current form, it is a genuine attempt to provide robust protection to individuals. The creation of a private right of action is an interesting addition that will be brought before the courts by eager litigants if Bill C-11 receives Royal Assent. We will see how it all plays out, and whether other countries follow suit with similar legislation.
- Rogers Partners wishes everyone a safe and happy holiday season! It’s been an interesting year to say the least with the COVID-19 pandemic, and we’re looking forward to 2021. Our thoughts are with those who have been affected by the pandemic.
- In October 2020, Stephen Ross and Gemma Healy-Murphy were published in The Lawyer’s Daily in a two-part series called “Summary judgment post COVID-19”.
- Andrew Yolles wrote a comprehensive article on a recent Supreme Court decision addressing pure economic loss. The article was published in The Lawyer’s Daily in November 2020.
- In December 2020, Gemma Healy-Murphy was quoted in Canadian Underwriter on issues related to additional insureds.
- In December 2020, Carol-Anne Wyseman was published in The Lawyer’s Daily in an article addressing the limitation period in the context of injuries that are more significant than initially thought.
- Tom Macmillan and Andrew Yolles recently conducted articling interviews. We’re pleased to advise that Annie Levanaj and Pip Swartz will be joining us in 2021!
- Stephen Ross is part of a task force of The Advocates’ Society examining a court decision in which a lawyer was found to not bring a relevant case authority to the court’s attention. Meryl Rodrigues is working with Stephen on the task force.
- In January 2021, Stephen Ross will be co-chairing the popular Tricks of the Trade conference organized by The Advocates’ Society.
- Brian Sunohara will be speaking at the Tricks of the Trade conference on trial practice issues and dealing with self-represented litigants.
- Rogers Partners is supporting the local bee population through the Toronto Bee Rescue. The firm has participated in a beehive share program which yielded 24 litres of honey this year.
- We’re excited to announce the Rogers Partners Occupiers’ Liability Handbook! It will soon be published in the Resources section of our website. We think it will be among the most comprehensive resources in Ontario on occupiers’ liability claims. Special recognition goes to Tom Macmillan and Emily Vereshchak for all of their hard work on the handbook!
- Please visit the RP Blog for frequent updates on the law and our firm.
- Follow us on Twitter.
Virtual Appearances – Let’s Not Turn Back
As I prepared to write something for this edition of our In|Sight newsletter, I took a look back to an article I wrote in October 2019. We were obviously in a very different time. The title of that article was “Promoting Efficiency in Litigation.” The last subheading in that article was entitled “Time to Embrace Technology and New Initiatives.”
At the time, I wrote that “I am confident in utilizing video conferencing and specifically look to schedule a discovery in such a manner if it is more practical and in consideration of costs.” Of course, I did not know at the time that within a few months a Zoom discovery would become the default choice and, in the process, lawyers would adapt and embrace the long needed shift towards a more virtual practice.
Here are some examples of different virtual appearances I have had recently and my overall positive experiences with each.
Examination for Discovery
I recently completed an examination for discovery with the deponent in Ottawa. Prior to the pandemic, I likely would have flown in to Ottawa the night prior and then arrived home late at night after a long day of questioning. Instead, I was able to complete the examination by the late afternoon without any lengthy and costly travel back home.
In addition, there were less breaks than what I used to experience and certainly no lengthy lunch break. It snowed quite heavily but there was no concern of any flight delays. Most importantly, I felt the discovery process was no different than if it was completed in person.
I recently argued an appeal before the Superior Court. I used sync.com to upload the documents (we were still required to file our paper documents for some reason). Rather than a book of authorities, we were instructed to provide a compendium outlining the pertinent aspects of each case.
The process was seamless. It was very easy to upload the documents and they were available for review by the Judge and also by counsel before and during the hearing.
The Superior Court tweeted last week that CaseLines will be expanded to all jurisdictions in Ontario by July 2021. Through CaseLines, parties can upload electronic copies of their documents for review by all participants before and during a court hearing.
I did not use CaseLines for my hearing but I have heard of issues from colleagues with the process. In some matters, not all counsel are uploading their documents. Further, in some matters, despite the direction to upload documents, CaseLines is not being used during hearings. Hopefully, the court will be able to remedy these issues with further directions to counsel.
Trial Scheduling Court
I recall being sent for trial scheduling as a first year associate. I was all excited for my first appearance before a judge. That excitement ended when I walked into a packed courtroom with half as many seats as there were lawyers and after frantically asking half the room if they were there for matter 67. Then I sat for three hours before getting called to speak for two minutes. It was an inefficient process.
Last week, I attended trial scheduling court through Zoom. I knew opposing counsel was present as all names were visible. Matters moved quicker than in the past and I may have caught up on an email or two while waiting. It was an efficient process.
I had a mediation last week. More shocking than the plaintiff’s demands was the amount of virtual rooms. There was even a room for the lawyers to meet if they wished to speak. All told, the travel time was removed and the mediation felt no different than it did in the past. Even the openings had the same effect.
The only thing missing was the mediator ordering lunch, or the sushi, fresh pizza, finger foods and more down the hall.
As I sit here writing, a vaccine is being shipped around the world that will hopefully bring some normalcy back to everyone’s lives. Whenever that does happen (and I hope it is really soon as I have four kids under the age of nine that interrupt at the worst possible times), I will certainly request virtual appearances whenever appropriate.
The cost savings and efficiencies are too great to revert back to an outdated practice. There will certainly be times when an in-person appearance is required but, when it is not, there is no reason to not proceed remotely – even if it is from an office rather than my basement.