Alberta and Ontario courts warm to videoconferencing
Tuesday, June 23, 2020 @ 2:38 PM | By Julie Hopkins and Daniel Urbas
In Ontario, Rule 1.08 of the Rules of Civil Procedure specifically provides the court with the authority to order videoconferencing for all or part of specifically listed proceedings or steps in those proceedings. It lists a number of factors to be taken into account in making such an order including: “the general principle that evidence and argument should be presented orally in open court”; the impact on the ability of the court to make findings including credibility findings, the importance of the evidence to the issues and of observing the demeanor of the witness; and the “balance of convenience.”
This contrasts with Alberta, where the Rules of Court do not provide the court with the express authority to order remote questioning. Even so, in the recent case Sandhu v. Siri Guru Nanak Sikh Gurdwara of Alberta 2020 ABQB 359, Justice Michael Lema inferred he had the authority to order cross-examination of affiants by videoconference from the “combined effect” of a number of rules including one that grants the court the ability to order an electronic hearing and a number of general “foundational rules” which provide that the purpose and intent of the rules of court is to promote the timely and costs effective resolution of claims.
Among other things, he also relied on a case of the Alberta Court of Appeal, Alberta Central Airways Ltd. v. Progressive Air Services Ltd. 2000 ABCA 36, that specifically endorsed remote questioning on affidavits. That decision was made under a previous iteration of the Alberta Rules of Court which contained Rule 261.1 that provided “the Court may permit evidence to be admitted by telephone, audio-visually or by other means satisfactory to the Court.” However, the Court of Appeal made no reference to that Rule in its reasons for upholding the decision of a case management judge ordering cross-examination of an affiant by videoconference. Rather, the court saw the issue as being one of “logistics” that fell within a case management judge’s discretion.
It went on to state in its brief reasons: “We have not been shown that video conferencing is an ineffective or unfair way to cross-examine on these two affidavits. … We do not see this as a denial of the right to cross-examine, nor a matter of finding unusual circumstances, nor of reversed onus. It is simply a question of weighing practicality in the 21st century.”
In ordering the remote questioning of affiants, Justice Lema relied heavily on Ontario cases. One example was a master’s decision citing Midland Resources Holding Limited v. Shtaif 2009 99 O.R. (3d) 550 where Justice Frank Newbould observed that examination of witnesses by videoconferencing is a “normal process in modern international litigation or arbitration” and that given the costs of litigation the use of videoconferencing should be encouraged rather than discouraged for other claims so long as the discretion is exercised judicially.
Justice Lema specifically adopted the reasoning from another Ontario case, this one a COVID-19 era case, Arconti v. Smith 2020 ONSC 2782, where the judge authorized examinations for discovery conducted by videoconference.
In that case the party resisting depositions by videoconferencing argued:
- The need to be with their counsel to assist with documents and facts during the examination;
- It is more difficult to assess a witness’s demeanour remotely;
- The lack of physical presence in a neutral setting deprives the occasion of solemnity and a morally persuasive environment; and
- The plaintiffs do not trust the defendants not to engage in sleight of hand to abuse the process.
In response to these arguments Justice Frederick Myers observed the simple answer was “It’s 2020” and “we now have the technological ability to communicate remotely effectively.” In considering the factors under Rule 1.08 outlined above, Justice Myers stated “the general principle that evidence should be provided in court has never applied to examination for discovery or examination of a witness for a pending motion” and that discovery transcripts are used for admissions not “demeanour.” He also did not think “an amorphous risk of abuse is a good basis to decline to use available technology.”
At the same time, he acknowledged there are perceived, and perhaps real shortcomings associated with proceeding remotely. He noted in particular that giving evidence in the physical presence of lawyers, parties and officials in a neutral location creates a “solemnity and discomfort for the witness that is important to the examination process” that may not be replicated when the witness is on video from home sitting in his or her “favourite chair.”
However, he concluded “due process concerns” were not inherent to videoconferencing and the concerns raised by the resisting party “are soluble either by creative alternatives or by increased familiarity with the technology.” He did not accept that anything would be lost that is not more than offset by the proportionality of proceeding efficiently and affordably.
With this reasoning being adopted in Sandhu, it appears that although the Alberta and Ontario courts find their authority to order remote questioning from different sources, their reasoning and support for using videoconferencing is similar if not identical.
Julie G. Hopkins is an independent arbitrator based in Calgary and a member of Calgary Energy & Commercial Arbitrators. Daniel Urbas is an experienced arbitrator and mediator at Urbas Arbitral in Montreal.
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