The Applicant sought reinstatement as president of the Respondent organization. The Applicant’s term in office was otherwise set to expire approximately one year subsequent to the date of filing the Application, thus the Applicant endeavoured to advance the litigation in a timely manner, notwithstanding extant social isolation directives arising from the COVID-19 public health crisis. The Respondent was not so inclined. In particular, the Respondent had refused to consent to Questioning on Affidavits by video-conference while social isolation directives remained in place, preferring to defer cross-examinations until in-person attendance was possible.

The Court set out to determine the scope of authority provided by the Rules to compel parties to submit to Questioning on Affidavits by electronic means. Rule 6.7 was identified as the primary enabling provision by which Questioning on Affidavits are regulated. In addition, Rules 6.16, 6.17, 6.18, 6.19 and 6.20 addressed, respectively, “the contents of the appointment notice, payment of an appearance allowance, the responsibilities of a lawyer for a person served with an appointment, interpreters, and ‘form of questioning and transcript.’” Importantly, the Court acknowledged that these Rules are not written with reference to the means of Questioning on Affidavits, such as by in-person attendance or electronic feed.

The Court also considered Rule 6.10, which provides authority to compel parties to submit to electronic process, though only in circumstances where the Court presides. As the matter at hand involved steps “upstream” from Court involvement, Rule 6.10 could not be applied directly. However, the Court noted that Rule 1.7 confers authority to apply rules by analogy. The Court also noted the general authority in Rule 1.4 to make procedural Orders to implement and advance the purpose and intention of the Rules, including the timely progression of the litigation, an intention referenced multiple times in Rule 1.2.

Justice Lema found that the Court has authority to compel remote Questioning on Affidavits. On the facts of the case at bar, His Lordship exercised that authority, setting timely deadlines for litigation steps and ordering that Questioning on Affidavits proceed remotely in the event social isolation directives preclude in-person Questioning at the material times.