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COVID Problems, Technological Solutions

June 19, 2020

Motions judge orders cross-examination on affidavits to proceed online

In Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta, the applicant in the underlying application was seeking to be reinstated as president of the respondent organization. He made a motion for a judge to direct that cross-examination on affidavits be permitted to proceed by way of some form of video-conference. The respondent objected, arguing that there was a substantial number of cross-examinations to be completed, where some of the affiants were old and some amount of translation was required; they sought an order that the cross-examinations would be completed within two weeks of the COVID-19 order being lifted (which was indeterminate at that point).

The motions judge, Justice M.J. Lema, first turned to the question of whether the Alberta Rules of Court actually permitted cross-examination by video. The existing Rules provided only for electronic “hearings,” which were to be in the presence of the court and did not necessarily apply to “upstream” litigation activities like cross-examination at motion hearings. However, case law under the predecessor Rule had expansively interpreted that rule to allow discoveries, etc. by video, and the evidence around the formulation of the new rules did not indicate that this expansive interpretation was to be somehow repealed. It was clear that, particularly since the onset of COVID-19, the use of video was being viewed in a more friendly way by motions courts and moreover it was clear that the “foundational-rule imperatives” (i.e. those promoting the inexpensive and timely resolution of disputes) could favour the use of video in appropriate circumstances. On this basis, Justice Lema concluded that the court had authority to order direct remote questioning on affidavits.

In granting the order this case, Justice Lema cited approvingly the decision of Justice Myers of the Ontario Superior Court of Justice in Arconti v. Smith (reported in a recent edition of this newsletter), where an in-depth analysis produced a conclusion that the benefits of cross-examination by video-conference outweighed the risks. Regarding the need for an interpreter, Justice Lema relied on previous case law to the effect that proceeding by video-conferencing was a beneficial route for “modern international litigation,” and had ordered that individuals be subjected to cross-examination with the use of an interpreter who was physically present with the affiant in his/her location. This solution would work well in the present case. He also noted with approval the May 2020 Alberta Protocol for Remote Questioning, which had been formulated by experienced litigators and stakeholder organizations, and which would likely prove useful.

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