Since the first reported cases of a novel coronavirus, called Covid-19, in December 2019, the outbreak has spread throughout the world causing an ongoing global pandemic in size not seen since the 1918 Spanish Flu. Due to the nature of the infection, many world governments have taken unprecedented steps to mitigate the spread. For example, in my home province of Alberta, Dr. Deena Hinshaw (Chief Medical Officer of Health) implemented, under the authority of section 29(2.1) of the Public Health Act, an order mandating “every person…[to] maintain a minimum of 2 metres distance from every other person.”[1] Accordingly, to comply with this physical distance and other similar orders, established institutions such as the courts were forced to adapt in order to continue to provide an essential service. So how did the courts adapt?
I will provide a brief overview of the 2020 case Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta[2] to demonstrate a courts ability to adapt by proceeding by video-conference when necessary.
Facts and issue:
In this case, the Applicant is a member of the Respondent and contests the Respondent’s decision to oust the Applicant from his position as President. After a failed application for an interim injunction, the parties were directed to develop a procedural plan for “reinstatement litigation.” It was at this point where the primary issue arose:
Whether cross-examinations on affidavits should be deferred until Covid-19 restrictions were lifted or whether they should be conducted by videoconference if Covid-19 restrictions remained in place.
As with all court matters, the Applicant and the Respondent had opposing views on using technological means to proceed with cross examinations. The Applicant argued for the use of videoconferencing because the operative timeline for Covid-19 restrictions was uncertain and a delay in proceedings would be highly prejudicial to the Applicant. However, the Respondent contended against using videoconferencing because the number, age and translation of the Respondent members would complicate the cross-examination. Given these positions, what did the court conclude?
Court decision:
The court concluded that the “cross-examinations on affidavit shall proceed remotely if…Alberta’s social-distancing requirements preclude in-person examinations at the material times.”[3] The court provided its reasons for this conclusion, as outlined below.
Court reasons and analysis:
After considering core rules 6.7, 6.16-6.20 of the Alberta Rules of Court[4], Justice Lema determined that the rules had not explicitly touched on the nature or form of a cross examination on affidavits. Therefore, without a core rule to apply, Justice Lema moved to consider case law.
The cases reviewed by Justice Lema demonstrated that videoconferencing a questioning is possible. However, since it is possible, are there any rules governing this? To answer that question, Justice Lema considered Rule 6.10 of the Rules of Court. Rule 6.10 defines “electronic hearing” as:
An application, proceeding, summary trial or trial conducted, in whole or in part, by electronic means in which all the participants in a hearing and the Court can hear each other, whether or not all or some of the participants and the Court can see each other or are in each other’s presence.[5]
The definition of an “electronic hearing” is limited to an application, proceeding, summary trial or trial where the court is present. However, a questioning on an affidavit typically occurs outside of the courts presence. So does that mean Rule 6.10 does not apply? Well, Justice Lema relied on predecessor Rule 261.1 and, in particular, De Carvalho v Watson[6] for some guidance. Rule 261.1 stated that “on application to the Court and on showing good reason for doing so, the Court may permit evidence to be admitted by telephone, audio-visually or by other means satisfactory to the Court.”[7] In Carvalho, Justice Jones, interpreted Rule 261.1 broadly to include an “examination of an individual on an examination for discovery by appropriate audiovisual techniques”[8] while acknowledging that there was no direct authority on this point.
It is to be noted that, unlike rule 261.1, rule 6.10 includes the word “presence.” The inclusion of the word presence, may indicate that rule 6.10 cannot be broadly interpreted similar to the previous rule and be applied. However, Justice Lema continued to seek guidance in the foundational rules 1.2, 1.4 and 1.7:
(a) Rule 1.2, repeatedly stated, in varying manners, that the rules are intended to provide a means to resolve court processes in a timely and cost-effective way. Therefore, in the presence of Covid-19 and the safety orders put in place, using video conferencing for the cross-examination of an affidavit would allow the court process to occur as the foundational rules intended.
(b) Rules 1.4 and 1.7, provide authority for the court to make any order with respect to practice or procedure, subject to any specific provisions, and for the court to apply the rules by analogy to matters not considered by the Rules of Court. Therefore, if the Court ordered the use of video conferencing for the cross-examination of an affidavit, it would be within its authority to do so.
Lastly, to counter the remaining arguments against video conferencing a cross-examination of an affidavit, Justice Meyers of Arconti v Smith[9] said it best that, “its 2020.” Here, Justice Myers is not referring to the absurdity that is 2020, with Covid-19, the sudden death of Kobe Bryant or the tragic downing of Iran Air Flight 655 – to name a few. Rather, Justice Myers is referring to the “technological ability to communicate remotely effectively.”[10] In essence, our technology is much better now than it was many years ago. Therefore, Justice Myers determined that any “due process concerns” inherent in the format of a video conference hearing is absent with an added benefit that litigation “will not be stopped in its tracks.”[11]
As a side note, in regards to the real possibility of fraud or abuse, Justice Myers stated that it is “important to remain vigilant… [but]… we have not yet reached a point where we presume it either.”[12] Why should we not presume it? There are a couple checks and balances in place. For example, lawyers are bound by the code of professional conduct to prevent any misconduct and the courts are receptive to evidence of abuse.
Conclusion:
The year 2020 has been a particularly difficult year and has changed the way society operates. Sandhu demonstrates how the courts had to quickly adapt to Covid-19 (a material time) by providing for video-conferencing to cross-examine an affidavit in order to prevent a complete standstill in our legal system.
[1] Alberta, Record of Decision – CMOH Order 26-2020, (26 June 2020) (Dr. Deena Hinshaw).
[2] Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta, 2020 ABQB 359 [Sandhu].
[3] Ibid at para 41.
[4] AB, Rules of Court, AR 124/2010, vol 1 [Rules of Court]
[5] Rules of Court, supra note 4 at r 6.10.
[6] De Carvalho v Watson 2000 CarswellAlta 438, [2000] AWLD 402 [Carvalho].
[7] AB, Rules of Court, AR 390/1968 at r 261.1.
[8] Carvalho, supra note 10 at para 24.
[9] Arconti v Smith, 2020 ONSC 2782 [Arconti].
[10] Ibid at para 19.
[11] Ibid at para 40.
[12] Ibid at para 26.
