Court Orders Videoconference Questioning For Discovery And Provides Guidance For The Use Of Technology In Litigation Proceedings

• Published date: 13 November 2020
• Subject Matter: Litigation, Mediation & Arbitration, Strategy, Coronavirus (COVID-19), Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Technology, Operational Impacts and Strategy
• Law Firm: Bennett Jones LLP
• Author: Mr David McKinnon, Justin Duguay and Shimon Sherrington (Articling Student)

Conducting questioning for discovery remotely by videoconference is a stable, predictable, safe, and efficient procedure during the COVID-19 pandemic and beyond, the Alberta Court of Queen's Bench confirmed in Mostafa Altalibi Professional Corporation v Lorne S. Kamelchuk Professional Corporation, 2020 ABQB 673 [Altalibi v Kamelchuk]. This recent decision of November 3, 2020, reflects the courts' continuing embrace of technology to facilitate litigation proceedings and avoid delays as the number of COVID-19 cases rise.

In Altalibi v Kamelchuk, the plaintiffs applied for an order to hold questioning for discovery by videoconference due to the current COVID-19 pandemic. The defendants resisted, by arguing that they would be deprived of a fundamental right to conduct in-person questioning, and by attempting to minimize the risks of COVID-19.

In rejecting the defendants' arguments, the Court found that nothing constitutionally guarantees a certain type or quality of questioning for discovery in a civil dispute, and that proceeding remotely by videoconference would not deprive the defendants of any fundamental right. The product of questioning is a transcript and neither a master, a judge, nor counsel see the demeanour of a witness when reading the transcript. The Court made clear it has the jurisdiction to direct questioning by video, citing with approval Sandhu v Siri, 2020 ABQB 359, and Arconti v Smith, 2020 ONSC 2782.

Further, the Court observed that litigation procedures should generally not fluctuate with daily COVID-19 case numbers. Rather, having a remote videoconference platform reinforces the principles of stability and predictability and makes our legal system less subject to the ebbs and flows of the pandemic.

COVID-19 has resulted in numerous public health directives related to social distancing and has already affected court procedures in Alberta and across Canada through, for example, the scheduling of many...