Executive Summary: Key Legal and Evidentiary Issues

• Contested pre-trial applications addressed whether the defendant (Kosc) could attend the entire trial remotely from Manitoba and whether the plaintiff's proposed expert witness (Wilken) could testify remotely from Montreal.

• Kosc cited a PTSD diagnosis and financial hardship as grounds for full virtual attendance, supported by physician and psychiatrist letters.

• Hamilton opposed Kosc's remote attendance, raising concerns about credibility assessment, prior disruptive virtual conduct, and logistical challenges with voluminous electronic records.

• The Court conducted an extensive balancing of factors under Alberta Rule 6.10, articulating a comprehensive non-exhaustive framework of considerations for contested electronic hearing applications.

• Kosc's application was granted in part — she was permitted to attend via CCTV from another room within the Calgary Courts Centre, but not from Manitoba.

• Hamilton's application for Wilken's remote testimony was dismissed due to insufficient justification and the impracticality of layering two different electronic platforms simultaneously.

The underlying dispute

Darren Hamilton, a Calgary lawyer, along with his professional corporation (Darren John Hamilton Professional Corporation doing business as Darren Hamilton Law Office), brought a civil action against Charlotte Kosc, also known as Charlotte Winslow, a resident of Manitoba. Hamilton sued Kosc for defamation, online harassment, intentional infliction of mental suffering, and breach of privacy. The claims arose from statements Kosc allegedly published online, which appear to describe, among other things, her assertion that Hamilton took advantage of her as a minor and sexually assaulted her. The trial was scheduled to commence on April 13, 2026, before Honourable Justice M.A. Marion at the Court of King's Bench of Alberta in Calgary.

The competing pre-trial applications

Both parties filed pre-trial applications before the trial judge, which were heard together. Kosc applied for permission to attend the entirety of the trial remotely from Manitoba. Hamilton sought permission to have one of his witnesses (a proposed expert), Sara Wilken, testify remotely from Montreal. Each party opposed the other's application.

Kosc's grounds for remote attendance

Kosc, who is self-represented, advanced two main reasons. First, she asserted she has been diagnosed with post-traumatic stress disorder, which she deposes is as a result of Hamilton's abuse — the alleged abuse that is a core disputed trial issue. She asserted that attending in court, particularly in close proximity to Hamilton, and in Calgary where she asserts the abuse she suffered occurred, would cause her psychological stress. She provided a letter from her physician recommending she be permitted to attend trial virtually due to "medical concerns and current social circumstances," as well as a 2024 letter from a psychiatrist. Kosc also asserted that attending trial virtually would allow her to maintain her composure and focus, to present her evidence clearly, and to conduct effective cross-examination. Second, Kosc asserted she is suffering financial instability as a result of this litigation and that the cost of travel, accommodation and related expenses required to attend the trial in person would cause her significant financial hardship. She has previously declared bankruptcy. She further noted that she has been permitted to attend several applications in this action virtually and asserted she has reliable internet (Starlink), appropriate technology to attend by Webex, and a private and quiet environment suitable for court proceedings. Kosc also argued that if Wilken is permitted to testify remotely, fairness and parity dictate she should also be permitted to do so.

Hamilton's opposition to Kosc's remote attendance

Hamilton opposed Kosc's virtual attendance on multiple grounds. He asserted that credibility will be a material issue at trial and that a virtual appearance "may limit the Court's ability to fully observe [Kosc's] demeanour, responsiveness, and conduct." He pointed to what he described as disruptions during Kosc's previous virtual attendances caused by her sister's involvement as well as Kosc's "disruptive conduct" including using the Webex chat function. He also deposed that, during virtual questioning in this matter, Kosc was obstructive and disruptive, at times was laughing, and spoke to her family during breaks (Kosc denies any substantive discussions took place). Kosc did not deny that she had to be muted by the court at least on one occasion. Hamilton was also concerned about Kosc recording the proceedings or using artificial intelligence during the trial, although he acknowledged there was no evidence of her doing so previously. Hamilton further asserted that technical difficulties were experienced with on-screen sharing of documents during Kosc's virtual questioning. He deposed that there is a substantial number of records in this matter, with his counsel estimating there are 1,000 text screen shots, and that it would impede effective presentation of evidence if Kosc attends virtually. Unfortunately, to date, there had not been any effort made toward putting together an agreed book of exhibits. Hamilton suggested there are other accommodations available to Kosc, including a McKenzie friend, access to medical professionals during the trial if needed, longer breaks, or the use of a screen. In response to an inquiry from the Court, Hamilton acknowledged that the use of CCTV in the courthouse could also be a reasonable accommodation.

The Court's framework for electronic hearings

Justice Marion provided an extensive analysis of the legal framework for electronic hearings in Alberta. The Court traced the history of electronic hearings from the 1998 amendment to the Alberta Rules of Court, which added rule 261.1 permitting evidence to be admitted by telephone, audio-visually or by other means satisfactory to the Court, through to the current Rules that came into force in 2010, under which rule 6.10 provides the framework for permitting electronic hearings. The Court noted that the COVID-19 pandemic "compelled the use of electronic hearings wherever possible" to provide reasonable access to justice. The Court emphasized that under Rule 6.10, given that an application by the parties or the Court is required for an electronic hearing, the Rules contemplate that an in-person hearing remains the default. In the Court's view, if parties do not agree to depart from the default in-person hearing mode, the party seeking an electronic hearing has the onus to establish, on a balance of probabilities, the need for the proposed form of electronic hearing, that its benefits outweigh its negative effects, that it is proportional, and that it is consistent with the fair and just resolution of the dispute in a timely and cost-effective way in accordance with rule 1.2(1). Justice Marion then articulated a comprehensive, non-exhaustive list of factors that may be engaged in the exercise of discretion, including reasons for the proposed electronic hearing; access to justice; participant preferences; the nature of the hearing; importance of the issues; involvement of counsel; participant relationships; participant location and personal circumstances; participant roles; importance of proposed remote evidence; financial considerations; fostering reliable testimony or meaningful participation; fact finding and credibility assessments; maintaining the integrity of the evidentiary process; level playing field; hearing delay; hearing solemnity; mischief, abuse and privacy concerns; courtroom management; effect on other participants; proportionality; public interest; feasibility; effective contingency plans; other alternatives; timeliness; and cost consequences.

The ruling on Kosc's application

In assessing Kosc's application, the Court weighed several factors. Justice Marion noted that as a party in the action, Kosc bears a heightened responsibility to attend a trial in person. The Court was not persuaded that the financial burden and inconvenience of travelling and staying in Calgary was a strong factor supporting Kosc's application, noting that although there is some evidence of Kosc's financial situation in an earlier affidavit, Kosc provided no current details about her current income or budget, or availability of resources, and that the fact she has previously declared bankruptcy is insufficient. The Court observed that at least some of Kosc's alleged conduct was in or received in, or directed toward Hamilton in, Alberta, that Kosc attorned to the jurisdiction and never brought an application challenging that Alberta was an appropriate or convenient forum, and that she is presumed to have known the default mode of trial in Alberta is in person under the Rules. However, Justice Marion found Kosc's medical circumstances to be a legitimate, good faith reason for seeking to attend the trial and testify remotely. The Court noted that in July 2023, this Court previously granted Kosc permission to attend questioning remotely from Manitoba, and drew an analogy to criminal cases where this Court has accommodated complainants by allowing them to testify by CCTV, including in sexual assault cases. In the Court's view, these cases are analogous because the underlying truth of sexual assault allegations is a core issue in this matter. The Court further found it likely that Kosc will be better able to provide evidence and conduct her defence on her own behalf if she is not in the physical presence of Hamilton, while clarifying that this does not equate to a finding that Kosc's assertions against Hamilton are true. The Court noted that the case is of critical importance to both parties and that a core issue will be credibility, with Hamilton and Kosc being the only witnesses to testify about what happened between them — factors that, all else being equal, favour in-person testimony and attendance of both parties. The Court expressed concern about the logistics of Kosc's proposal for remote attendance from Manitoba, noting her proposal for how she intended to deal with the many electronic records was vague and lacking, and that if things did not go well mid-trial, having Kosc out of the jurisdiction would make it difficult to adjust without needing a trial continuation. The Court was also concerned about maintaining the solemnity of the trial and appropriate control over the trial and the integrity of the evidence-giving process, particularly given the history of challenges experienced in Kosc's remote participation and the absence of legal counsel on her side. For all of these reasons, Kosc was permitted to attend the trial from another room in the courthouse, through CCTV or such other technology as the Court may approve, under court supervision. This would allow the Court to best manage the proceedings, ensure a reliable connection, and provide the most flexibility and efficiency should unforeseen matters arise. The Court also noted Kosc will be entitled to be in the courtroom for any part of the trial if she changes her mind.

The ruling on Wilken's remote testimony and overall outcome

Hamilton's application to have Wilken testify remotely from Montreal was dismissed. Wilken is a licenced private investigator retained by Hamilton to prepare a "Social Media Investigation Report," and Hamilton intended to adduce her as an expert witness at trial. The Court noted there was no evidence that there was a need to hire a private investigator from Quebec as opposed to one from Alberta, no details in the evidence about the cost of having Wilken attend in person or how long it is anticipated Wilken will be required to attend at the trial, and no evidence of any particular or unusual inconvenience to Wilken. The application appeared to be primarily about cost. Critically, the Court identified the impracticality of having Kosc attending by CCTV or other approved technology from the courthouse and Wilken attending by a different remote platform such as Webex. In the Court's view, it would not be workable, or fair to Kosc, to have Kosc cross-examine Wilken, potentially using various records, through the filter of two different electronic processes at the same time. The Court concluded it did not believe there is any effective or fair way to accommodate this using the Court's current resource capabilities. Costs of both applications were deferred to be dealt with after the trial. No specific monetary award was ordered or granted in connection with these pre-trial applications, as the decision addressed procedural accommodations rather than the merits of the underlying claims. The Court indicated it would be contacting the parties to schedule another pre-trial meeting as soon as possible to address remaining logistical matters and protocols.