Alberta – videoconferencing for cross-examination on affidavit authorized, despite objection, because “It’s 2020” – #334

In Sandhu v. Siri Guru Nanak Sikh Gurdwara of Alberta, 2020 ABQB 359, Mr. Justice Michael J. Lema concluded that, despite no express mention in the applicable rules, the court has authority to direct remote questioning on affidavits despite a party’s resistance.  In his reasons, Lema J. referred to Alberta case law from 2000 and Ontario case law from 2009 which clearly supported the use of videoconferencing for cross-examination on affidavit as “a normal process” in modern international litigation or arbitration.  Lema J. also cited from the May 1, 2020 decision in Arconti v. Smith, 2020 ONSC 2782 authorizing videoconferencing because “It’s 2020”. Lema J.’s reasons include extensive references to key cases discussing the evolution of technology while acknowledging concerns for irritants and mischief.

Respondent, a religious society incorporated under Alberta’s Religious Societies’ Land Act, RSA 2000, c R-15, owns and operates a Sikh temple.  Applicant is a member of Respondent.  Applicant disputed Respondent’s decisions taken in regard to Applicant’s role as president of Respondent.  Lema J. briefly described the dispute as involving Applicant contesting his “ouster as president” and instituting “reinstatement litigation”. 

For more facts relevant to either the parties or the context of their disputes, see Sandhu v. Siri Guru Nanak Sikh Gurdwara of Alberta, 2013 ABQB 646, aff’d on appeal in Sandhu v. Siri Guru Nanak Sikh Gurdwara of Alberta, 2015 ABCA 101, leave to appeal denied in Siri Guru Nanak Sikh Gurdwara of Alberta v. Sakattar Singh Sandhu and Baldev Singh Hundle, 2015 CanLII 52181 (SCC)

For a series of decisions regarding a stay execution of certain decisions involving the parties, see Siri Guru Nanak Sikh Gurdwara of Alberta v. Sandhu, 2014 ABQB 169 and Siri Guru Nanak Sikh Gurdwara of Alberta v. Sandhu, 2014 ABCA 181 regarding a stay of the decision in first instance pending appeal to the Court of Appeal and see Siri Guru Nanak Sikh Gurdwara of Alberta v. Sandhu, 2015 ABCA 219 regarding a stay pending the application for leave to appeal to the Supreme Court.

Despite Lema J.’s direction to the parties to negotiate a procedural timetable for their litigation, the parties’ discussions stalled over disagreement regarding how to conduct the cross-examinations on affidavits.  Due to COVID-19, in-person cross-examinations were not currently permitted under Alberta’s directives.

Applicant argued for videoconferencing for cross-examinations. Respondent argued that the parties wait until COVID-19 restrictions were lifted.  Lema J. reviewed the applicable rules and precedents, both within and from outside of Alberta and agreed with Applicant to authorise videoconferencing.

Applicant argued the following in support of videoconferencing for cross-examination on affidavit:

1. the organization has had plenty of time to prepare its affidavits, having been served with the application on April 30. It should file its affidavits by June 12 (position advanced as of May 22);

2.  as for cross-examinations, “we do not know exactly when social-isolation directives will come to an end. … We should be trying the technology and the other alternatives that we have to deal with these circumstances. [A court reporting service] has confirmed … that the Questioning can be completed over Zoom and the proceedings can be transcribed. [discussion of practical requirements to ensure an orderly examination and a good transcript]  … since there may be many rounds of Questioning during these proceedings … it will be more practical to complete Questioning over Zoom if it cannot be completed in person”; and

3. with his term as president to have expired at the end of April 2021, “if the Application … is not decided on [the] merits within a reasonable time due to the pandemic, and [if] the [Court] finds that the decision … to terminate him as President was wrong, these proceedings may not provide the actual relief that the Applicant is seeking i.e. to declare the [ouster] decision … to be void ab initio. It is likely that due to the pandemic, and especially due to in person Questioning, these proceedings may be significantly delayed if the social-isolation directives by the Government are not ended soon or are in place again in the near future. The delay will be prejudicial to the Applicant and not to the Respondent”.

Respondent argued the following in support of videoconferencing for cross-examination on affidavit:

1. in-person cross-examinations on affidavits are not currently permitted under Alberta’s Covid-19 directives or, alternatively, will be difficult or impractical in light of those directives. Here they point to the large number of people involved – up to five members of the executive committee, the two lawyers, a (Punjabi-English) translator, a court reporter, and the applicant;

2.  cross-examination by videoconference will be impossible or at least unwieldy, given the number of parties to be cross-examined (up to six, as noted above), the EC members being in their 60s and 70s and not necessarily up to speed with technology, and the additional complication of translation; and

3.  as a result, while affidavits can be prepared in fairly short order (i.e. by the end of June, from the standpoint of May 22), the deadline for the completion of cross-examinations should be “dates mutually acceptable to the parties but within 15 days of the end of social-isolation directives by the Government (the “Pandemic End Date”)”.

Lema J. observed that the Alberta Rules of Court, Alta Reg 124/2010 (“Rules”) applicable to cross-examination on affidavits did not speak expressly to the nature of such cross-examination though Rule 6.10 “comes close”.  His review of the case law since the 2010 update to the Rules prompted him to remark that “Alberta case law on remote questioning, at least since the “new” (2010) rules, largely takes as given that such questioning is permitted i.e. without finding it necessary to explore the specific “rule authority” for it”.  See Geophysical Service Incorporated v. Falkland Oil and Gas Limited, 2019 ABQB 314 paras 43-45; Swagar v. Loblaws Inc. (The Real Canadian Superstore), 2014 ABQB 58 para. 83; Aircraft Finance Services Inc v. Miller, 2018 ABQB 1005 para. 77; SRG Takamiya Co Ltd v. Sprung Instant Structures Ltd, 2015 ABQB 174 para. 1; Saveva v. Flight Centre, 2012 ABQB 477 paras 9 and 20; Franiel v. Toronto-Dominion Bank, 2020 ABQB 66 paras 37, 42-43, 139.

Rule 6.10 mentions “electronic hearings” but implicit in its provisions is Rule 6.10’s application to those proceedings in which the court is present.  Lema J. therefore concluded that Rule 6.10 “does not, at least at first glance, reaches upstream steps like discoveries and questioning on affidavits, where the “Court” is not present (or typically present)”.  Alberta case law on Rule 6.10 supported Lema J.’s reading of that implicit limitation which focus “on hearings i.e. not on such upstream steps”.  See D’Amico v. Wiemken, 2010 ABQB 785 para. 38; Abou-Morad v. Aboumourad, 2015 ABQB 584 para 2; Deadman v. Jager Estate, 2018 ABQB 985 para. 60; Nexen Energy ULC v. ITP SA, 2020 ABQB 83 para. 260.

Having considered the current iteration of the Rules, Lema J. looked back to Rule 6.10’s predecessor, namely former Rule 261.1 which anticipated evidence by telephone, audio-visually or otherwise.    The cases identified by Lema J. either referred to Rule 261.1 or issued at the time when Rule 261.1 was in effect.   See Alberta Central Airways Ltd. v. Progressive Air Services Ltd., 2000 ABCA 36 paras 1-3 and De Carvalho v. Watson, 2000 CanLII 28217 (AB QB) paras 14-17.

Following a further reference to “foundational rules” Rule 1.2(2)(b), 1.4 and 1.7(2), Lema J. at para. 30 drew up a list of conclusions governing remote questioning on affidavits and concluded that the court has authority to direct remote questioning on affidavits:

1. the Court of Appeal endorsed remote questioning on affidavits in 2000;

2. the expansive interpretation accorded Rule 261.1;

3. the absence of any new Rule since 2010 expressly barring or restricting remote questioning on affidavits;

4. no signal, even implicit, in the 2010 Rules that the prior acceptance of videoconferencing questioning was “off-base”;

5. Rule 6.10’s express recognition of electronic hearings, whether occurring by the parties’ agreement or by order, during which all manner of questioning, including cross-examination, may occur via video or audio link;

6. the Court’s post-2010 decisions reflecting the possibility, and fact, of remote questioning;

7. the Court’s own increasing acceptance, since mid-March of this year, of remote (video or audio) proceedings;

8. the overall improvement in video-link technology over the last twenty years;

9. growing recognition of the utility of remote evidence-giving and questioning; and,

10. the foundational-Rule imperatives to apply and augment the Rules to ensure the fair, just and timely resolution of parties’ claims.

Having concluded that the court had authority to direct remote questioning on affidavits, Lema J. devoted para. 31 and following, in the section entitled “Exercise of that authority here”, to determining whether to direct remote questioning.  He did.

Lema J. disagreed with Respondent that COVID-19 social distancing requirements were justification for pausing the litigation “until the pandemic “all clear” has been sounded” or that “cross-exams cannot usefully be conducted unless done in person, in due course”.

Lema J. drew on decisions issuing from Ontario and included significant-length excerpts in his reasons at paras 33-36.  See Arconti v. Smith, 2020 ONSC 2782 paras 19-27, 32-33, 37, 40; Falsetto v. Falsetto, 2020 ONSC 3374 para. 8; Alves v. Gaughran, 2016 ONSC 5645 paras 34-44; Code Inc. v. Independent High Electoral Commission, 2012 ONSC 2208 paras 20-21; Ronald Humphrey v. Attorney General of Canada, 2016 ONSC 2659 paras 17-25; Concord Adex Inc. v. 20/20 Management Limited, 2017 ONSC 3897 paras 5-13.

Of those decisions, Lema J. focused on Arconti v. Smith and Alves v. Gaughran.  In Arconti v. Smith, Mr. Justice Frederick L. Myers listed the concerns raised against conducting the cross-examination by videoconference.

[19] In my view, the simplest answer to this issue is, “It’s 2020”. We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools anymore. We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back”.

Myers J. was sensitive to concerns and alert that he was dealing with pre-hearing evidence and not for trial.  Myers J. recognized certain limitations inherent in remote questioning but elected to direct that they be conducted remotely.  Lema J. included Myers J.’s comments at para. 33 of his reasons.  Myers J.’s comments merit highlighting:

[32] 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. …

[33] 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. Efforts can and should be made to help people who remain uncomfortable to obtain any necessary training and education. Parties and counsel may require some delay to let one or both sides prepare to deal with unfamiliar surroundings”[.]

In Alves v. Gaughran, excerpted by Lema J. at para. 35 of his reasons, the Master relied on Midland Resources Holding Limited v. Shtaif, 2009 CanLII 67669 (ON SC).  In that case, Mr. Justice Frank Newbould (now a panel member at Arbitration Place) relied on Rule 1.08 of Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194 as acknowledgement of the usefulness of taking evidence by way of video conference.  He noted that Rule 1.08 might not address situations in which the court was not present but it also did not exclude an order under Rule 34.07(1)(f).

[22] I have some difficulty with the statement of Master Dash that discovery by video conference should be ordered rarely and only in exceptional circumstances. Examinations of witnesses by video conferencing are a normal process in modern international litigation or arbitration. The reason, of course, is that often the time and expense involved in travelling to far distant places is not warranted if there is an alternative. In my view, taken the high costs of modern litigation, it should be encouraged rather than discouraged, so long as the discretion of the judicial officer in deciding whether to order video conferencing is exercised judicially. I see no purpose in starting from the position that it should be ordered rarely and only in exceptional circumstances. There is no basis, in my view, for any such presumption. Each case should be decided on its own facts with a view to determining what is the most just and convenient result in the particular case”.

Lema J. then reviewed the particular circumstances of the proposed cross-examination including the need for interpreters and having a reporting service confirmed as ready to report provide the service provider could clearly hear and understand all speakers and that speakers not interrupt or speak over each other.

Lema J. authorized that the cross-examinations on affidavit proceed remotely if the provincial social-distancing requirements preclude in-person examinations at the dates set out in the parties’ procedural schedule.

urbitral note – First, Newbould J. in Midland Resources Holding Limited v. Shtaif, 2009 CanLII 67669 (ON SC) addressed the issue of credibility in the context of videoconferencing.

[25] With respect to the credibility of witnesses, Master Dash stated that one of the reasons discovery by video conferencing should be rare is if the credibility of the witness to be examined is a key issue, and he stated that the importance of counsel directly observing the demeanour of the witness in that case is of great importance. I have some difficulty with that statement. Often it is not known before the examination for discovery takes place whether the credibility of the witness will be of importance. In any event, experience indicates that the video conferencing facilities available today provide clarity, and if requested, close up clarity, of the person being examined. Moreover, if the credibility of the witness becomes of importance at the trial, the fact that a videotape of the examination is available for the trier of fact, and not just a written transcript of the evidence, should assist the trier of fact in assessing the credibility of the evidence given by the witness on his or examination f or discovery. That of course is not available if a videotape of the discovery has not been taken”.

Second, Lema J.’s decision attaches as Appendix A a protocol for “remote questioning” generated by various participants in the province of Alberta.  The protocol is divided into three (3) sections: Before the Questioning, During the Questioning and After the Questioning.

Third, Lema J.’s reference to and excerpt from De Carvalho v. Watson 2000 CanLII 28217 (AB QB) provided further comments about the evolution of technology.  Readers should note that the decision issued May 12, 2000, over twenty (20) years ago:

[15] Another factor, and the one which in my view is, when coupled with the abovenoted factor, determinative of this particular issue, is the circumstance that technology continues to evolve apace. Video conferencing is now accepted as being a reliable and improving method of communication between persons. It has even improved to the point that in given circumstances, arrangements can be made so that a person being examined or cross-examined by video conference can even be presented with documents which can be dealt with appropriately. It would require one to have “one’s head in the sand”, as it were, to not recognize that there are circumstances where the use of such technology can properly be made use of.

[16] It is not the suggestion of this court that because video conferencing is an available form of technology suitable for examination and cross-examination of witnesses or potential witnesses that such use of technology should be used generally as a substitute for personal appearances on either trials, examinations on affidavits or examinations for discovery. But it seems to me that where there are circumstances such as the present where an individual is a long way away from the jurisdiction in which the examination would normally take place, where the costs for the personal attendance of that individual would be extremely substantial, where the examination can be carried out with a minimum of difficulty by the use of such video conferencing technology, and where there has already been an opportunity for counsel to engage in personal cross-examination of an extensive nature of the particular witness or potential witness, with the witness having been present for that examination or cross-examination, that this is an appropriate type of case for a court to look positively upon a request made on behalf of such witness that the witness be allowed in a civil action such as this to provide continued evidence on examination for discovery by way of video conference. This would be inappropriate only where there is some other circumstance which would cause a meaningful risk of causing prejudice to the party seeking to require the witness to appear in person”.