NOVA OCULUS CANADA MANUFACTURING ULC v SATHER, 2026 ABKB 616

The Applicant sought leave to provide written interrogatories rather than be subjected to in-person Questioning. The Applicant had previously participated in Questioning on multiple occasions throughout the Action. However, their counsel advised that they would be unable to continue in-person Questioning due to medical issues and on advice from their doctor. The Applicant was in poor health, and their physician had concerns that the stress of participating in Questioning would be detrimental to the Applicant’s health.

The Applicant submitted that in the circumstances, the Court ought to permit questions to be answered through interrogatories, as permitted by Rule 5.22. The Rules contemplate that, subject to the limitations set out in Rule 5.28, questions can be answered under oath and in writing. The Applicant went on to argue that any prejudice to the Respondents would be remedied by requiring follow-up questions to be answered in the event of any deficient responses from the Applicant.

The Respondent took the position that the Applicant was a central witness to the matter; that his credibility was highly relevant and that the lack of spontaneity and immediacy in his responses would be highly prejudicial to the Respondents. Further, the Respondents argued that the evidence submitted by the Applicants was insufficient to demonstrate the necessity of written interrogatories rather than oral Questioning. The Respondent also proposed a litany of accommodations in an attempt to address the Applicant’s circumstances, while still recognizing the importance of the witness to the Action.

Justice Dario agreed that the Applicant’s evidence was central to the Action, and that their credibility was a principal issue in the dispute. The Court also noted the evidence from the Applicant’s physician regarding the medical risks that would come from oral Questioning. Given the accommodations proposed by the Respondent, the medical concerns outlined by the physician, and the hybrid processes available, the Court directed a modified procedure under Rule 5.24(b) wherein some questions would be answered in writing with the balance to occur orally.