On a recent podcast, we discussed the Worsoff decision and the future of virtual examinations and other litigation events, following the Covid-19 pandemic.

Another recent decision out of Alberta, Thompson v AltaLink Management Ltd, sheds further light on the thinking of Canadian courts and tribunals regarding virtual litigation, going forward.

In this dispute, one party argued that proceedings should occur in-person, rather than virtually. Making an appeal to “common sense,” he noted that (as of August 2021) there were no Covid-related restrictions in Alberta and that one couldn’t predict whether renewed restrictions would be imposed in the future. He also noted the advantages of observing witnesses and decision-makers and their natural reactions first hand.

The other party did not challenge this position, per se, but noted that the participants in the proceeding (including administrative staff) might not yet be comfortable “returning to normal,” risking exposure to infection during the ongoing pandemic.

It was ultimately decided that one party and his counsel would participate from a hotel close to his location in rural Alberta, while all other participants and staff would participate virtually. The degree to which in-person participation was allowed in this case was mainly a technological consideration, however, the overall reasoning in this decision involved a balancing of considerations of fairness of proceedings (favouring in-person) and safety of participants (favouring virtual). The latter consideration was deemed to be of greater significance, in light of Covid.

It remains to be seen when exactly the courts will go back to full in-person litigation, or whether elements of virtual or hybrid proceedings are here to stay. The pertinent question right now is under what circumstances would a party be compelled to attend in person, if they would prefer to remain virtual. Until the pandemic is over, this will likely remain an open question.

Thank you for reading!

Fred Tonelli