December 3, 2018

By Amelia Phillips

Under what circumstances can a witness be compelled to attend cross-examination outside of the jurisdiction in which he/she lives versus, say, by video conferencing? While the law is evolving, examination by video conferencing is still the clear exception to the rule and for some good reasons.

In 1337194 Ontario Inc. v. Whiteley, 2004 CarswellOnt 2312, the defendants were located in the U.S. and the plaintiff in Ontario. The defendants requested that discoveries be held by video conference. Master Dash held that the importance of counsel directly observing the demeanour of a witness in person is of great importance, particularly in cases where the witness’s evidence is vital to the issues in the action. Master Dash concluded that discoveries by video conference should be compelled against the wishes of the examining party “rarely and only in exceptional circumstances, particularly where as here credibility of the witness to be examined is a key issue.” Whiteley is sound and, even approaching 2019, good law.
In the more recent case of Sacks v. Ross, 2015 ONSC 6432, a defendant lived in Edmonton, Alberta and was on maternity leave there with an infant son she was nursing. She wished to be examined for trial by video conference as attending in person in Toronto, along with the infant, would cause her considerable expense, inconvenience and disruption to her family. The plaintiff objected arguing she was a defendant in the lawsuit, her credibility was in issue and her evidence was important. In coming to her decision to side with the plaintiff, Madam Justice Darla A. Wilson (like Master Dash in Whiteley) considered Rule 1.08 of the Rules of Civil Procedure, which sets out when video conferencing is available in a proceeding before a court (such as a motion, pre-trial conference, and a trial). The Rule’s list of factors for the court to consider include:

• the importance of the evidence;
• the effect of video on the ability to make determinations about credibility and demeanour of the person;
• the balance of convenience; and
• whether the party is unable to attend because of illness or any other reason.

Madam Justice Wilson also cited the Rule’s general principle that evidence should be presented orally in open court. She went on to state at para. 12:
The Plaintiff has a right to have the parties he has sued attend in court as part of the process by which the adjudication of this dispute will be effected. It is part of due process to which a litigant is entitled as a fundamental right. Such a right could be abrogated in an appropriate case, but these are fact dependent. None of the cases relied on by counsel are cases where a party to the litigation requested that his or her evidence be done by videoconferencing. I am unaware that such an order has been made in a civil proceeding.
Indeed, there is no authority under the Rules or elsewhere permitting a judge to impose video conferencing on an unwilling party (Todd Archibald et al., Ontario Superior Court Practice, 2017 ed (Toronto: LexisNexis Canada Inc., 2016) at 770).

Cases that have ordered video conferencing have outstanding cost considerations.

Justice Neubold in Midland Resources Holding Ltd. v. Shtaif, [2009] O.J. No. 5216 at para. 22 opined that “[e]xaminations of witnesses by video conferencing are a normal process in modern international litigation [emphasis added]” because “often the time and expense involved in traveling to far distant places is not warranted if there is an alternative.”
In Alves v. Gaughran, 2016 ONSC 5645, the issue was the method of examination for discovery of a defendant who lived in London, England. Master Lou Ann M. Pope acknowledged the considerable travel and hotel costs for a face-to-face examination and found that an examination by video conference would be the most cost-effective.
In Concord Adex Inc. v. 20/20 Management Limited 2017 ONSC 3897, one of the plaintiff’s witnesses resided in British Columbia and the defendants sought to have him examined in Toronto for a pleadings motion. In ordering a video conference examination of the plaintiff’s witness, Master R. A. Muir concluded that the balance of convenience favoured video conferencing (at para. 7):
In my view, a video conference examination is appropriate in the circumstances. This is not a situation where Mr. Hui is proposing to give video conference evidence at trial or even for discovery or on a summary judgment motion. This is a pleadings motion. The evidentiary threshold on a motion under Rule 5.04 is low when it comes to discoverability and due diligence.
It is clear that the law in Ontario favours traditional, face-to-face witness examination but provides for exceptions to allow for video conferencing (and examination by written questions). This is the correct approach. In my relatively short legal career, I have witnessed the palpable force of counsel’s physical presence in backing a witness into the truth. It includes the force of looking a witness in the eye; seeing subtle body language; and even feeling the vibe, energy or atmosphere your witness creates. All unspoken cues that being in the same room with your witness provides.