1.2: Purpose and intention of these rules
1.4: Procedural orders
1.7: Interpreting these rules
10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
14.5: Appeals only with permission

Case Summary

The Appellants sought to appeal a Master’s Order permitting Questioning to be conducted remotely by video conferencing, and to comply with the Alberta Protocol for Remote Questioning. The Master granted the Order for five reasons: (i) as a matter of general knowledge that COVID-19 cases were on the rise and restricted social interactions correlated with decreased case numbers; (ii) Questioning is a lengthy interaction in a relatively small space; (iii) videoconferencing had been ordered before the pandemic; (iv) transcripts, prepared from Questioning, do not reflect witness demeanour; and (v) Questioning should not be postponed indefinitely until the pandemic subsides.

The Court of Appeal upheld the Master’s Order. The Court of Appeal relied on the “foundational rules” for guidance and, specifically, Rules 1.2, 1.4, and 1.7. Pursuant to those foundational rules, the Court found that the Master had the authority to direct remote Questioning, and that the Court had jurisdiction to grant that Order.

The Court of Appeal also affirmed the following factors supporting Questioning by video-conference: (i) the Court of Appeal previously endorsed remote Questioning on affidavits as far back as 2000; (ii) the absence of any rule expressly barring or restricting remote Questioning on Affidavits; (iii) Rule 6.10 expressly allows Courts to order “electronic hearings”; (iv) prior Court decisions reflect the possibility, and fact, of remote Questioning; (v) the Court has increasingly accepted, since mid-March of 2020, remote proceedings; (vi) the overall improvement in video-link technology; (vii) growing recognition of the utility of remote evidence; (viii) and the foundational-rule imperative to apply, and as necessary augment, the Rules to ensure the fair, just, and timely resolution of parties’ claims.

The Court of Appeal rejected the Appellants’ concern that videoconferencing would impair counsel’s ability to assess the credibility of the person being Questioned.

The Court of Appeal declined to consider the timelines imposed by the lower Court because the Appellants failed to seek permission to appeal the timeline as required by Rule 14.5(1)(b).

The Court of Appeal upheld the Master’s decision to impose costs. The Court rejected the Appellants’ argument that the issue of videoconferencing was a novel issue. The Court also relied on the discretion given to Courts in Rules 10.29(1) and 10.31.

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