Get With The Times: Alberta Court Of Appeal Greenlights Videoconferencing

• Published date: 18 August 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: CLC (Canadian Litigation Counsel)
• Author: Kara Shaw (Brownlee LLP)

In the recent case of Mostafa Altalibi Professional Corporation v Lorne S. Kamelchuk Professional Corporation, 2022 ABCA 239, the Alberta Court of Appeal held questioning did not have to occur in person and instead, could occur via videoconferencing.

In May 2020, amidst the COVID-19 pandemic, the respondents sought to conduct questioning by way of videoconference. In November 2020, the master granted an order directing the appellant and respondent to schedule questioning by videoconferencing. He further held that questioning should not be postponed indefinitely until the pandemic subsides.

The appellant then appealed the master's order as it applied to the appellant's questioning of the respondent's witness and costs. The appeal was heard by the chambers judge and dismissed.

Grounds of Appeal

The appellant further appealed and claimed the chambers judge erred by:

• Not considering in-person questioning provided a better credibility assessment of the witness;
• Denying the appellant's entitlement to conduct in-person questioning of the respondent's witness;
• Awarding costs and upholding the master's cost award.

Parties' Submissions

The appellants re-argued the same issues as presented before the master and the chambers judge. They stated the "dismissal of their appeal was an unreasonable exercise of the Court's discretion." The appellants submitted the Rules of Court are silent on allowing videoconferencing for questioning. They argued the master and chambers judge failed to fully consider the importance of assessing credibility during questioning.

The respondents agreed that the Rules of Court do not necessarily guarantee a certain mode of questioning. They submitted the master and chambers judge did not err in finding they have the authority to order questioning by videoconference and were within their jurisdiction to do so. The chambers judge considered credibility as an issue.

Analysis

The chambers judge accepted the reasoning in Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta, 2020 ABQB 359 at paragraph 30, where the court summarized the rule governing remote questioning on affidavits and stated:

1. the Court of Appeal had endorsed remote questioning on affidavits as far back as 2000;
2. there was no new-era (2010 onwards) rule expressly barring or restricting remote questioning on affidavits or otherwise casting a shadow on such questioning generally;
3. there was no signal, even implicit, in the 2010 remodeling of the Court's rules that the pre-2010...