Case Commentary on Carbone v McMahon, 2020 ABCA 388
In a new decision, the Alberta Court of Appeal has confirmed the court’s usage of “virtual court” proceedings during the Covid-19 pandemic, denying rescheduling to a litigant who wanted to make her arguments in person.
Carbone v. McMahon (2020 ABCA 328) was an appeal to the Court of Appeal by a self-represented litigant, appealing a judge’s decision to strike legal actions she had commenced against two lawyers (who had been legal counsel to a plastic surgeon Ms. Carbone had previously unsuccessfully sued for malpractice). The appeal was scheduled to be heard – like most court appearances since the emergence of Covid-19 – by WebEx, a program that allows parties to participate in court hearings via either video or phone. In the days prior to the hearing, Ms. Carbone wrote to the court seeking an adjournment saying she did not have the technology available to her use WebEx. The Court denied the adjournment request, saying the court house would provide her with a laptop computer to use, or she could attend by phone, or make her arguments in writing.
On the day of the hearing Ms. Carbone attended by telephone. She repeated her adjournment request and objected to opposing counsel attending by video, as she felt it gave counsel an unfair advantage if he could see the court but she could not. To avoid any perception of giving one side a litigation advantage, the court asked counsel to reconnect by telephone without the video.
The Court of Appeal then went on to consider the substance of the appeal and in the result, dismissed Ms. Carbone’s appeal.
While the part of the decision concerning the use of WebEx contains no legal analysis – it is a simple consideration of an adjournment request – it underscores the Court’s commitment to the use of alternatives to in-person court hearing. It is noteworthy that the Court requested responding legal counsel to forgo the use of video technology, but perhaps understandable to avoid even the appearance of unfairness when dealing with a self-represented litigant arguing against highly experienced legal counsel.
It has been our experience at Hendrix Law to this point in the pandemic that many self-represented litigants have been able to use WebEx successfully, both its video and phone components. While argument in person in court has a long tradition, the use of alternative court formats increases the accessibility of the courts, particularly for disabled litigants and those outside of major urban centres, and we welcome the Court’s holding steadfast on the use of this technology.