A recent case out of the province of Alberta demonstrates the willingness of Canadian courts to use video conferencing as a tool to facilitate court proceedings even where there is no express authority to order video conferencing.
The issue in Sandhu v. Siri Guru Nanak Sikh Gurdwara of Alberta, 2020 ABQB 359, was whether cross-examinations on affidavits should be deferred until COVID-19 social-distancing restrictions were lifted or whether they should be ordered to proceed by video-conference.
Under the applicable rules of court there is no express authority for the court to order remote questioning without the agreement of the parties. However, Justice Michael J. Lema of the Alberta Court of Queen’s Bench inferred the authority from the “combined effect” of a number of rules including one that specifically grants the court the ability, on application, 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. In doing so, he also relied on a case of the Alberta Court of Appeal from 2000 that specifically endorsed remote questioning on affidavits, albeit under a previous iteration of the rules of court.
The respondents’ main argument to resist cross-examination by video conference was that it would be “impossible or at least unwieldy, given the number of parties to be cross-examined (up to six . . . ) [with most] being in their 60s and 70s and not necessarily up to speed with technology.” There was also the additional complication that the questioning would require translation.
Despite these issues, Justice Lema ordered remote questioning. He noted the 2009 case from Ontario of Midland Resources Holding Limited v. Shtaif, 2009 CanLII 67669 (ON SC) where it was observed that examination of witnesses by video conferencing is a “normal process” in “modern international litigation or arbitration” and that given the costs of litigation the use of video conferencing should be encouraged rather than discouraged for other claims so long as the discretion is exercised judicially.
In making the order, 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 depositions conducted by video conference.
In that case a party resisted depositions by video conferencing arguing:
In response to these arguments Justice Frederick L. Myers observed “It’s 2020” and “we have the technology to communicate remotely effectively.” Justice Myers noted that there can be legitimate issues with the use of video conferencing. However, he concluded “[t]he plaintiffs’ concerns, in the main, are soluble either by creative alternatives or by increased familiarity with the technology. I do not accept that anything will be lost that is not more than offset by the proportionality of proceeding efficiently and affordably.” In arriving at that conclusion, Justice Myers made the following observations which were given particular emphasis by Justice Lema in Sandhu:
I respectfully do not find the presence of any “due process concerns” inherent in the format of a video hearing. All parties have the same opportunity to participate and to be heard. All parties have the same ability to put all of the relevant evidence before the court and to challenge the evidence adduced by the other side. The only possible “unfairness” is a lack of comfort by one counsel that he or she will be at their best in presenting evidence and making arguments using technology. . . .
In my view, in 2020, use of readily available technology is part of the basic skillset required of civil litigators and courts. This is not new and, unlike the pandemic, did not arise on the sudden. However, the need for the court to operate during the pandemic has brought to the fore the availability of alternative processes and the imperative of technological competency. . . .
Sandhu illustrates that Canadian courts are supportive of the use of video conferencing for all aspects of court proceedings and that this willingness pre-dates the present pandemic conditions that have brought its use to the forefront. The case also shows an expectation on the part of the court that counsel will have the skills and flexibility to overcome the procedural challenges the use of video conferencing may pose.
Daniel Urbas is an arbitrator and mediator at Urbas Arbitral in Montreal, Quebec, Canada. Julie G. Hopkins is an independent arbitrator based in Calgary, Alberta, Canada, and a member of Calgary Energy & Commercial Arbitrators.
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