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Court File No.: T-2084-12

FEDERAL COURT

BETWEEN:

UNITED AIRLINES, INC.

Plaintiff

– and –

DR. JEREMY COOPERSTOCK

Defendant

MOTION RECORD OF THE MOVING PARTY,THE DEFENDANT

(Motion to the Trial Judge,the Honourable Justice Michael Phelan)

Dated: November 11, 2016

DR. JEREMY COOPERSTOCK436 Strathcona AvenueWestmount, Québec H3Y 2X1Tel: (438) 808-6463

[email protected]

Defendant / Moving Party

TO: GOWLING LAFLEUR HENDERSON LLPMe Jay Zakaïb

Suite 2600, 160 Elgin StreetOttawa ON K1P 1C3Tel: 613-783-8806

Me Hélène D’Iorio

1 Place Ville Marie, 37th FloorMontreal, Quebec H3B 3P4Tel: 514-392-9564Fax: 514-878-1450

Solicitor for the Plaintiff,United Airlines, Inc.

TABLE OF CONTENTS

1 Notice of Motion 1

2 Affidavit of Dr. Jeremy R. Cooperstock,affirmed on November 11, 2016 4

A Email from Dr. Zeilinger,dated September 1, 2015 7

B Correspondence with Federal Court Registry,dated February 16-23, 2016 9

C Email from Dr. Zeilinger,dated October 30, 2016 12

D Email from Dr. Zeilinger,dated November 8, 2016 14

E “Courts turn to video-conference testimony to cutcosts”Globe and Mail, dated May 14, 2012 16

3 Written Representations of the Moving Party 19

Appendix A: Authorities

Appendix B: Case Law

4 Farzam v. Canada (Minister of Citizenship andImmigration), 2005 FC 1453 33

5 Chandra v. CBC, 2015 ONSC 5385 51

6 Slaughter v. Sluys, 2010 BCSC 1576 59

7 Grahovac v. Hartfiel, 2015 BCSC 1142 66

8 Pack all manufacturing Inc. v. Triad plastics Inc., 2001CanLII 7655 (ON SC) 84

9 Sacks v. Ross, 2015 ONSC 6432 89

1Court File No.: T-2084-12

FEDERAL COURT

BETWEEN:


Plaintiff

– and –


Defendant

NOTICE OF MOTION

TAKE NOTICE THAT Dr. Jeremy Cooperstock will make a motion to the Trial

Judge, the Honourable Justice Michael Phelan, in writing, under Rule 369 of

the Federal Court Rules, S.O.R./98-106.

THE MOTION IS FOR:

permission from the Court to permit the Defendant’s expert witness, Dr. Martin

Zeilinger, to testify and be cross-examined at trial by video-conference.

2THE GROUNDS FOR THE MOTION ARE:

1. In the fall of 2015, the defendant’s expert witness, Dr. Zeilinger, assumed

an academic appointment in Cambridge, UK.

2. The Court had initially proposed trial dates in May and June 2016, during

which time, Dr. Zeilinger could have traveled to Canada. However, since

only one week was available in the summer, and counsel for the plaintiff

was not available, the Court subsequently advised that the trial would

take place in December 2016.

3. Dr. Zeilinger has teaching responsibilities on Mondays 9:30-16:00, Tues-

days 14:00-18:00, and Thursdays 9:00-14:00 UK time. As a result, Dr.

Zeilinger indicated that it would be impossible for him to travel to Mon-

treal to testify.

4. An order permitting Dr. Zeilinger to testify and be cross-examined by

video-conference will allow this Honourable Court the ability to hear the

witness, and ensure that the defendant is not deprived of his ability to

present his defence of fair dealing under s. 29 and 29.1 of the Copyright

Act.

5. Rules 32, 33, and 369 of the Federal Court Rules, S.O.R./98-106.


FEDERAL COURT

BETWEEN:


Plaintiff

– and –


Defendant

AFFIDAVIT OF DR. JEREMY R. COOPERSTOCK

I, DR. JEREMY R. COOPERSTOCK, of the City of Westmount, in the Province

of Quebec, AFFIRM THAT:

1. I am the Defendant in this proceeding, and as such I have personal

knowledge of the matters deposed to.

2. In support of my fair dealing defence under sections 29 and 29.1 of

the Copyright Act, I obtained an expert witness affidavit of Dr. Martin Zeilinger,

which was served and filed with the Court on May 1, 2015, in preparation for

trial.

53. In the fall of 2015, Dr. Zeilinger, wrote to tell me that he had as-

sumed a permanent academic appointment in Cambridge, UK. A copy of Dr.

Zeilinger’s email is attached and marked as Exhibit “A”.

4. In early 2016, the Court had initially proposed trial dates in May

and June 2016, during which time, Dr. Zeilinger could have traveled to Canada.

However, since only one week was available “and counsel for the plaintiff is not

available”, the Court subsequently advised that the trial would take place in De-

cember 2016. A copy of the correspondence from the Federal Court regarding

scheduling of trial is attached and marked as Exhibit “B”.

5. On October 30, 2016, Dr. Zeilinger indicated his teaching respon-

sibilities as being on Mondays 9:30-16:00, Tuesdays 14:00-18:00, and Thurs-

days 9:00-14:00 UK time. A copy of Dr. Zeilinger’s email regarding his teaching

schedule is attached and marked as Exhibit “C”.

6. On November 3, 2016, at the instruction of the Honourable Justice

Michael Phelan, I spoke with counsel for the plaintiff, Me Jay Zakaïb, asking his

consent for Dr. Zeilinger to testify and be cross-examined on his testimony by

video-conference. However, Me Zakaïb refused.

7. On November 8, 2016, in response to my request to ascertain

whether he could travel to Montreal to testify during the trial, Dr. Zeilinger indi-

cated that it would be impossible for him to do so, but that he can arrange to

have access to state-of-the-art video-conferencing facilities to testify by video-

conference. A copy of Dr. Zeilinger’s email is attached and marked as Ex-

hibit “D”.

Subject: Re: untiedFrom: Martin Zeilinger <[email protected]>Date: 2015-09-01, 4:41 AMTo: Jeremy Cooperstock <[email protected]>

Hi Jeremy,

I think any time between February and June will work. As a general rule, early or late in the week will be best, as it will be least likely to interfere with my teaching schedule.

Please keep in mind that I just moved to the UK to take up a permanent position here in Cambridge, so I will have to travel from here.

However, there is a chance that I will be in Toronto for about a month some time in June/July for the Vector festival, so that might make it more economical to get me to Montreal.

All best,Martin

On Aug 31, 2015, at 15:07, Jeremy Cooperstock <[email protected]> wrote:

The Federal Court has asked me about scheduling preferences for the trial, if this goes ahead. I wanted to check with you on potential availability in 2016 -- what periods of the year would be best for you to make a trip to Montreal for one day of testimony and examination on your expert report?

8

Subject: RE: T-2084-12 United Air Lines Inc. v. Jeremy CooperstockFrom: "Morin, Yolande" <[email protected]>Date: 2016-02-23, 11:56 AMTo: "Jeremy Cooperstock" <[email protected]>

Good morning, Please take note that we do not need availability dates for the months of May and June 2016 since onlyone week was available and counsel for the plaintiff is not available. This is to advise you that the above noted matter will take place starting Monday, December 5, 2016 at9:30 in Montreal for a duration of 4 days. Please acknowledge receipt of this message. Thank you. Yolande MorinCoordonnatrice adjointe des audiencesAssociate Hearings CoordinatorBureau du juge en chef/Office of The Chief JusticeCour fédérale/Federal Court613-995-0108 From: Morin, YolandeSent: February-16-16 8:24 AMTo: 'Jeremy Cooperstock'Subject: RE: T-2084-12 United Air Lines Inc. v. Jeremy Cooperstock Good morning, This is noted. Thank you. Yolande From: Jeremy Cooperstock [mailto:[email protected]]Sent: February-16-16 6:28 AMTo: Morin, YolandeSubject: Re: T-2084-12 United Air Lines Inc. v. Jeremy Cooperstock Dear Ms. Morin,

I am contacting my witnesses to verify their availability for the time frame of May and June 2016. I willrespond once I have heard back from them.

Sincerely,- Jeremy Cooperstock

1 of 2

10

On 15 February 2016 22:35:46 GMT+02:00, "Morin, Yolande" <[email protected]> wrote:Good afternoon,

Would it be possible to please provide your availability dates for the months of May and June 2016 for theabove noted matter?

Thank you.

Yolande MorinCoordonnatrice adjointe des audiencesAssociate Hearings CoordinatorBureau du juge en chef/Office of The Chief JusticeCour fédérale/Federal Court613-995-0108

2 of 2

11

Subject: Re: untiedFrom: Martin Zeilinger <[email protected]>Date: 2016-10-30, 6:40 PMTo: Jeremy Cooperstock <[email protected]>

Hi Jeremy,

My teaching schedule is as follows (UK time): Monday 9.30-16:00; Tuesday 14:00-18:00; Thursday9:00-14:00.

If my availability is required during this time, please let me know as soon as possible. Please note that itwill be difficult for me to be available during the morning Quebec time, since there is a 5 hour timedifference.

All best,Martin

P.S.: When the dates are coordinated, it would be good to catch up on phone and strategise how toprepare for the hearings.

On 30 Oct 2016, at 19:27, Jeremy Cooperstock <[email protected]> wrote:

Hi Martin,

No worries about the stray skype call last month... :-)

I have a trial management conference with the Federal Court on Tuesday to set the agenda forDecember's trial, so I'm checking in again to make sure you're still available (for at most one morningor afternoon) between Dec. 5 and 8.

Thanks,- Jeremy

13

Subject: trial datesFrom: "Zeilinger, Martin" <[email protected]>Date: 2016-11-08, 4:25 PMTo: Jeremy Cooperstock <[email protected]>

Dear Jeremy,

The trial dates you have indicated would require me to miss an entire week of teaching, which I am afraidis impossible. This will be the second-to-last week of our teaching term, just a few weeks before mystudents submit their end-of-term assessments, and I am scheduled to have review meetings throughoutthe week.

I am sorry for this inconvenience. I will arrange to have access to state-of-the-art videoconferencingfacilities that will satisfy the court’s requirements for this hearing.

Best regards,

Martin Zeilinger

-- Martin Zeilinger, PhDLecturer in Media, Dept. of English & Media, ARU, Cambridge/UKHEL 267 | http://tiny.cc/mz-aru | http://marjz.net/Office Hours: Tue 3-4pm | Thu 10-11am and 12-1pmResearch Day: Friday

--http://www.anglia.ac.uk/email-disclaimer

1 of 1

15

May 14, 2012

Courts turn to video-conference testimony to cut costsBy KIRK MAKIN

But traditionalists object to remote cross-examination of witnesses, saying it's harder to spotfalsehood or honesty in body language

Faced with increasing costs and delays associated with hearing cases, a growing number of judges are trying to dragthe court system into the electronic age, including using video links to allow witnesses to testify from afar.

Legal traditionalists are aghast at the prospect of cross-examining witnesses via video, but others believe the newmoves will enhance justice and keep the courts credible and accessible.

"The legal system is going to be exposed to ridicule if we don't move forward with innovative ways of taking evidence,"said Brian Gover, a veteran Toronto lawyer at Stockwoods LLP. "One of the great issues for us in a time of austerity isgoing to be cost control and delivering justice in an efficient way. Technology has provided an answer to the problem."

Two recent rulings broke new ground, opening the door to testimony by Skype and teleconferencing.

The first case involved a witness in a child custody case, Linda Veronica Paiva, who said she could not afford to travelto Toronto from her home in Denmark to testify. Family lawyer Phil Epstein persuaded Madam Justice Ellen Murray ofthe Ontario Superior Court to allow her to testify via Skype.

"Skype is now in HD and has an internal automatic checking system," Mr. Epstein said in an interview. "You can seepeople in the courtroom and they can see you. This is clearly the way of the future."

In the second case, the Ontario Court of Appeal overturned aggravated assault convictions against two alleged Asiangang members. It criticized their trial judge for not exploring the feasibility of letting a key Crown witness testify and becross-examined by teleconference from Singapore.

The two rulings exposed a sharp division of opinion within the legal profession. While lawyers such as Mr. Gover seetechnology as a way to relieve pressure on a fraying court system, critics insist that only in-court testimony can permitjudges and juries to properly observe a witness's demeanour.

Steven Benmor, a lawyer who represents Ms. Paiva's estranged husband, Michael Corpening, said the Skypearrangement approved by Judge Murray threatens the integrity of testimony.

"The very nature of the right to trial is to allow a judge to see, hear and experience a witness's demeanour so as toassess not only the answers but 'how' they are delivered," Mr. Benmor said in an interview. "If demeanour were notimportant, we would have trials by affidavits and paper records."

He said that family law cases involve highly nuanced questions about the quality of parenting, the ability of a parent tomeet the child's needs and the reasons one parent wants to limit the other parent's access to a child.

"Skype and other technological advances in communication are applauded, but do not replace the need for a judge tolook the person in the eye and 'judge' them," he said. Mr. Benmor also worries that use of such technology will impedesettlements, which frequently benefit from the dynamics of having all parties in the same room.

17

The Globe and Mail, Inc.

The Globe and Mail Inc. All Rights Reserved.. Permission granted for up to 5 copies. All rights reserved. You may forward this article or get additional permissions by typing http://license.icopyright.net/3.8425?icx_id=4178446 into any webbrowser. The Globe and Mail, Inc. and The Globe and Mail logos are registered trademarks of The Globe and Mail, Inc. The iCopyright logo is a

registered trademark of iCopyright, Inc.

Mr. Gover said that what critics are missing is a growing realization that analyzing an individual's demeanour is a poorway to judge honesty. Wrongful convictions have frequently been rooted in erroneous conclusions a judge or jury drewfrom a defendant's voice and body language, he said.

In fact, legislation permitting the use of video technology has been on the books for several years, but few lawyers andjudges were willing to explore it.

18


FEDERAL COURT

BETWEEN:

UNITED AIRLINES, INC.Plaintiff

– and –

DR. JEREMY COOPERSTOCKDefendant

WRITTEN REPRESENTATIONS OF THE MOVING PARTY, THEDEFENDANT

PART I – STATEMENT OF FACTS

1. In the fall of 2015, the defendant’s expert witness, Dr. Zeilinger, assumed

an academic appointment in Cambridge, UK.

Cooperstock affidavit Tab 2A, P7

2. The Court had initially proposed trial dates in May and June 2016, during

which time, Dr. Zeilinger could have traveled to Canada. However, since only

one week was available in the summer, and counsel for the plaintiff was not

available, the Court subsequently scheduled the trial for December 2016.

Cooperstock affidavit Tab 2B, P9

3. Dr. Zeilinger presently has teaching responsibilities on Mondays 9:30-

16:00, Tuesdays 14:00-18:00, and Thursdays 9:00-14:00 UK time.

Cooperstock affidavit Tab 2C, P12

204. As a result, Dr. Zeilinger indicated that it would be impossible for him to

travel to Montreal to testify.

Cooperstock affidavit Tab 2D, P14

5. The present motion seeks an order permitting Dr. Zeilinger to testify and

be cross-examined by video-conference so as to allow this Honourable Court

the ability to hear the witness, and ensure that the defendant is not deprived

of his ability to present his defence on the basis of the parody exception to

trademark and copyright infringement.

PART II – STATEMENT OF THE POINTS IN ISSUE

6. The sole issue to be determined in the present motion is whether the

Court should order that the defendant’s expert witness, Dr. Martin Zeilinger, be

permitted to testify and be cross-examined at trial by video-conference.

PART III – STATEMENT OF SUBMISSIONS

A. Legal Principles

7. Rule 32 of the Federal Court Rules, S.O.R./98-106 allow the Court to

order that a hearing be conducted in whole or in part by means of a telephone

conference call, video-conference or any other form of electronic communica-

tion.

218. With regard to the interpretation of “hearing” in Rule 32, Martineau J.

held:

[28] While it is not clear whether or not the word "hearing" usedin Rule 32 encompasses the "trial" of an action, it should be in-terpreted in a liberal matter. I note that Rule 4 provides that "[o]nmotion, the court may provide for any procedural matter not pro-vided for in these Rules or an Act of Parliament by analogy tothe Rules or reference to the practice of the superior court ofthe province to which the subject matter of the proceeding mostclosely relates". . .

Farzam v. Canada (Minister of Citizenshipand Immigration), 2005 FC 1453

Tab 4, P40

9. Although the Federal Court Rules do not define the basis on which the

Court should order the use of video-conference communication, other Cana-

dian Courts have set out the factors to consider for exercising this discretion.

For example, Rule 1.08(5) of the Rules of Civil Procedure, R.R.O. 1990, Reg.

194 of the Ontario Superior Court lists the following factors to consider in per-

mitting trial evidence by telephone or video-conference:

(a) The general principle that evidence and argument should be pre-

sented orally in open court;

(b) The importance of the evidence to the determination of the issues

in the case;

(c) The effect of the telephone or video conference on the court’s

ability to make findings, including determinations about the cred-

ibility of witnesses;

(d) The importance in the circumstances of the case of observing the

demeanour of a witness;

22(e) Whether a party, witness or lawyer for a party is unable to attend

because of infirmity, illness or any other reason;

(f) The balance of convenience between the party wishing the tele-

phone or video conference and the party or parties opposing; and

(g) Any other relevant matter.

10. Justice Graeme Mew, of the Ontario Superior Court, wrote:

[18] While the general principle that trial evidence should ordi-narily be presented orally is clearly and unequivocally articulatedby rule 1.08(5)(a) it is appropriate, particularly in light of the cul-ture shift advocated by the Supreme Court of Canada, to take a21st century view of the use of video conferencing (and similartechnologies).

[19] The Advocates’ Society has taken up the challenge of propos-ing ways of making the trial process more effective, accessibleand affordable. In its June 2015 report, Best Practices for CivilTrials, a Task Force of the Advocates’ Society makes the follow-ing recommendation:

11.3 Where court resources permit, counsel and thecourt should also discuss the potential for out-of-townwitnesses to testify via videoconference. Counsel shouldensure that the court can accommodate the videocon-ference request and is comfortable with the testimonybeing heard by videoconference. Video technology hasadvanced such that courts have found that it is possibleto make findings of fact and decisions about credibilitybased on videoconference evidence. (Emphasis added)

[20] The use of video or similar technologies does not now rep-resent a significant deviation from the general principle favouringoral evidence in court. Such evidence is given orally, under oathor affirmation, and is observable “live” as it would be with the wit-ness present in the courtroom. Questions are asked and answersare given in the usual way. The witness can be closely observedand most if not all of the visual and verbal cues that could beseen if the individual was physically present can be observed on

23the screen. The evidence is received by the court and heard andunderstood by counsel and any members of the public who maybe present in the courtroom at the time.

[21] Available technologies include not only the ability to examinea witness but, also, to put to that witness in a contemporaneousway documents and other exhibits.

[25] While each request will necessarily turn on its own facts andcircumstances, provided that there is a reasonable explanationfor a witness not being able to attend in court to give evidence,and provided also that the technology is available and can readilybe deployed, a court should be reluctant to deprive itself and theparties of the opportunity to receive the testimony of a nonpartywitness through video conferencing.

Chandra v. CBC, 2015 ONSC 5385 Tab 5, P54

11. The same decision lays out a practical procedure to ensure that docu-

ments can be put to the witness efficiently, without depriving the cross-examining

party of contemporaneous or unvarnished answers in respect of a particular

document:

[28] . . .

(e) No less than two full court days before the witness is sched-uled to testify, the parties shall, subject to (f) below, identify andnotify to all other parties all documents which he/she/it wishes tohave included in a document bundle to be made available, elec-tronically, on paper or both, to the witness. The CBC shall beresponsible for assembling the witness bundles and making themavailable to the witness.

(f) Where a cross-examining party determines that the procedurein (e) may lessen the chances of the witness giving a contempora-neous or unvarnished answer in respect of a particular document,or where the need to refer to a document only arises from the trialtestimony of the witness, a document may be put to the witnessthat is not in the bundle. The CBC shall ensure that arrangementsare in place for such additional documents to be readily accessi-ble by the witness (electronically or otherwise).

Chandra v. CBC, 2015 ONSC 5385 Tab 5, P56

2412. Similarly, ss. 73(2) and (3) of the Evidence Act, R.S.B.C. 1996, c. 124,

provide:

73 (2) A court may allow a witness to testify in a proceeding bymeans of closed circuit television or any other technology thatallows the court, the parties and the witness to engage in simul-taneous visual and oral communication, unless

(a) one of the parties satisfies the court that receiving the tes-timony in that manner would be contrary to the principlesof fundamental justice, or

(b) the technology is not available for the proceeding.

(3) If a party objects to the court receiving evidence in the mannerdescribed in subsection (2), the court may consider any of thefollowing circumstances:

(a) the location and personal circumstances of the witness;

(b) the costs that would be incurred if the witness had to bephysically present;

(c) the nature of the evidence the witness is expected to give;

(d) any other circumstance the court considers appropriate.

13. In the Supreme Court of British Columbia, in concluding that certain

witnesses should be permitted to testify by video-conference, the Honourable

Justice A.J. Beames wrote:

[10] I am not convinced, as submitted, that it would be “funda-mentally unfair to the defendant to deprive him of the opportu-nity to have witnesses properly cross examined” in person in thecourtroom. Proper and full cross examination can take place evenwhen witnesses are appearing via videoconferencing. In my view,this is particularly so where the witnesses are experts and wherecredibility per se is not in issue and it is also the case wherethe evidence a witness may give is not overly contentious. On theother hand, the plaintiff cannot, alone, determine which witnesses

25are “important” and therefore should attend in person, and whichwitnesses are “not so important” and therefore should be permit-ted to testify via videoconferencing.

[11] I am also mindful of the submission that cross examination ofthe experts will be difficult if conducted via videoconferencing, asa result of the number of documents each witness may be askedto review. However, videoconferencing can be accompanied byequipment at each end of the transmission that allows both theexpert and the examiner to view the same document. Further, theexperts’ files are required, under the new Rules, to be producedfor review by opposing parties, on request, at least 14 days be-fore trial. File contents may be organized and numbered in such away as to minimize any concerns with respect to the use of docu-ments during direct or cross-examination via videoconferencing.I am satisfied that any need to refer experts to documents canbe satisfactorily accommodated and does not mean that expertsshould not be permitted to testify via videoconferencing.

Slaughter v. Sluys, 2010 BCSC 1576 Tab 6, P63

14. More recently, in the Supreme Court of British Columbia, the Honourable

Madam Justice S. Griffin held:

[36] As noted by the language of the statute, granting such anorder is discretionary, but there is an onus on the party opposingit to satisfy the court that receiving the testimony in this mannerwould be contrary to the principles of fundamental justice. Also,the applicant must establish that the technology is available forthe proceeding.

Grahovac v. Hartfiel, 2015 BCSC 1142 Tab 7, P73

B. Legal Test

15. Since the Federal Court Rules do not define a legal test for the Court in

exercising its discretion to order the use of video-conference communication,

the Defendant respectfully submits that the guidance of the Ontario Superior

Court is useful. Specifically, the factors listed under Rule 1.08(5) of the Rules

26of Civil Procedure, R.R.O. 1990, Reg. 194 of the Ontario Superior Court, to

consider in permitting trial evidence by telephone or video-conference, all weigh

strongly in favour of granting the present motion:

(a) The general principle that evidence and argument should be presented

orally in open court:

There is no genuine derogation from the open court principle in

the use of video-conference technology: the public has access to

see and hear the evidence and argument being presented by a

witness through the technology, provided that the public can enter

the courtroom where the monitors are placed.

(b) The importance of the evidence to the determination of the issues

in the case:

The evidence to be presented by the Defendant’s expert witness,

Dr. Zeilinger, is central to the fair dealing defence under sections

29 and 29.1 of the Copyright Act.

Cooperstock affidavit Tab 2, para. 2, P4

(c) The effect of the telephone or video conference on the court’s

ability to make findings, including determinations about the credibility

of witnesses:

As noted in the decision of Madam Justice Beames:[9] . . . Advances have been made in the quality ofcommunication via videoconferencing, which has allbut eliminated the problems often associated withvideoconferencing in the early days of its use, whichinvolved time delays in the transmission and whichin turn frequently resulted in counsel and witnessestalking over each other and which made for a lessthan satisfactory method of conducting both director cross examination. I have, in the recent past,

27found videoconferencing to be an acceptable andsatisfactory method of receiving evidence from awitness, which has not inhibited assessment of cred-ibility or the finding of facts.

Slaughter v. Sluys, 2010 BCSC 1576 Tab 6, P63

(d) The importance in the circumstances of the case of observing the

demeanour of a witness:

The Court will be able to make determinations of fact on the ba-

sis of the expert witness’ testimony. As an expert witness, Dr.

Zeilinger’s demeanor is less important than it might be in another

case, where, for example, there is a risk of a witness speaking

falsehoods.

(e) Whether a party, witness or lawyer for a party is unable to attend

because of infirmity, illness or any other reason:

In the case at bar, Dr. Zeilinger, would have been able to travel

to Montreal to testify in person had the trial been held in May or

June, as originally proposed. The inflexibility of Plaintiff’s counsel

prevented the scheduling of trial for that time period. Dr. Zeilinger

is unable to testify in person in December because of his teaching

obligations in his present academic position.Cooperstock affidavit Tab 2, paras. 4 & 7, P5

Tab 2D, P14

(f) The balance of convenience between the party wishing the telephone

or video conference and the party or parties opposing:

The balance of convenience strongly favours the Defendant. There

is minimal inconvenience to the Plaintiff in permitting Dr. Zeilinger

to testify and be cross-examined by video-conference. The Plain-

28tiff would simply need to have any documents that it wishes to

put before the expert witness available in electronic format, so

that these can be shown to the witness contemporaneously, or

alternatively, provided in advance in hardcopy.

(g) Any other relevant matter:

Given Dr. Zeilinger’s constraints, allowing his testimony by video-

conference is the only way in which his evidence may be pre-

sented before this honourable Court. Should Dr. Zeilinger not be

permitted to testify by video-conference, the Defendant will be de-

prived of his ability to mount a full defence.

C. Technology

16. Video-conference technology can offer the Court and counsel the ability

to interact with the witness to a degree that is as good as “in the flesh”. As was

noted by Justice Rutherford as far back as 2001:

[6] In my experience, a trial judge can see, hear and evaluatea witness’ testimony very well, assuming the video-conferencearrangements are good. Seeing the witness, full face on in colourand live in a conference facility is arguably as good or better thanseeing the same witness obliquely from one side as is the case inour traditional courtrooms here in the Ottawa Court House. Thedemeanor of the witness can be observed, although perhaps notthe full body, but then, sitting in a witness box is not significantlybetter in this regard. . .

Pack All Manufacturing Inc. v. Triad PlasticsInc., 2001 CanLII 7655 (ON SC)

Tab 8, P 85

17. Since then, the capabilities of video-conference technology have only

improved. As noted by a 2012 article in the Globe and Mail regarding cross-

29examination of witnesses via video, the popular Skype video-conferencing soft-

ware, is high-definition.

Cooperstock affidavit Tab 2E, P16

18. Citing with approval the decision in Chandra v. CBC, Madam Justice

Darla A. Wilson commented:

[11] . . . I also take note of the fact that in the cases where the courtpermitted a witness’s evidence to be done by videoconferencing,the results were entirely satisfactory and the concerns about thequality of the evidence or ability to scrutinize the witness wereunfounded.

Sacks v Ross, 2015 ONSC 6432 Tab 9, P91

19. The Federal Court in Montreal has excellent networking infrastructure

that supports high-definition video-conferencing.


20. The Defendant is able to provide any assistance with the setup of equip-

ment in Court, and to provide the Court with any additional equipment as

deemed necessary to support interaction with the witness, as well as the pre-

sentation to the witness of documents during cross-examination.


21. In the case at bar, dealing with the contents of websites, the documents

to which the witness will refer originate primarily from digital sources. Screen

sharing facilities of the video-conference systems allow for such documents to

be shown to the Court and to all parties, both during testimony in chief and

cross examination.

30D. Procedural Fairness

22. The expert testimony of Dr. Zeilinger on the subject of parody and the

analysis of the Defendant’s use of parody in his website is central to the de-

fence of fair dealing for the purposes of parody, satire, criticism, and/or review,

as raised in paragraphs 15 and 41 of the Defendant’s Amended Statemnt of

Defence.

23. If Dr. Zeilinger’s testimony were not allowed by the Court on account

of the conflict of the trial dates with his teaching commitments, which prevent

him from testifying in person, the Defendant would be deprived of his ability to

mount a full defence to the claim of copyright infringement.

24. It is therefore in the interests of procedural fairness for this honourable

Court to receive the testimony of Dr. Zeilinger through video conferencing, so

as to allow the defendant to raise a full defence.

32

Federal Courts RulesS.O.R./98-106

Règles des Cours fédéralesDORS/98-106

Remote conferencing

32. The Court may order that ahearing be conducted in whole or inpart by means of a telephoneconference call, video-conference orany other form of electroniccommunication.

Communication électronique32. La Cour peut ordonner qu’uneaudience soit tenue en tout ou enpartie par voie de conférencetéléphonique ou devidéo-conférence ou par tout autremoyen de communicationélectronique.

Technological assistance

33. The Court may give directionsto facilitate the conduct of a hearingby the use of any electronic or digi-tal means of communication or stor-age or retrieval of information, or anyother technology it considers appro-priate.

Aide technique33. La Cour peut donner desdirectives visant à faciliter la tenued’audiences par le recours à desmoyens électroniques ounumériques de communication, destockage ou d’extraction derenseignements, ou à tout autremoyen technique qu’elle jugeindiqué.

Case Name:Farzam v. Canada (Minister of Citizenship and

Immigration)

BetweenHussein Farzam, plaintiff, and

Her Majesty the Queen in right of the Minister ofCitizenship and Immigration, defendant

[2005] F.C.J. No. 1776

[2005] A.C.F. no 1776

2005 FC 1453

2005 CF 1453

282 F.T.R. 238

Docket T-626-96

Federal CourtOttawa, Ontario

Martineau J.

Heard: October 24, 2005.Judgment: October 26, 2005.

(54 paras.)

Civil procedure -- Witnesses -- Testimony by video or telephone conference -- Plaintiff was not allowedto introduce evidence of two overseas witnesses by teleconferencing -- Federal Court Rules, 1998,SOR/98-106, Rule 286.

Application by Farzam to introduce the testimony of two Iranian witnesses through the use ofteleconferencing -- Farzam obtained permanent resident status -- He applied to sponsor his wife -- Wifewas issued a permit to come to Canada even though she divorced Farzam while the application wasbeing processed -- Farzam sued defendant Minister of Citizenship and Immigration for negligence forprocessing the sponsorship application -- Application was brought after witnesses were denied visas andFarzam was not allowed to introduce hearsay evidence from his former wife -- Farzam was directed 12

http://www.lexisnexis.com/ca/legal/delivery/PrintDoc.do?fromCar...

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days before start of trial to serve and file any motion for alternative means to introduce evidence -- Hechose to bring this application at the commencement of the trial -- Proposed evidence of the Iranianwitnesses related to the wife's reasons for the divorce -- Farzam acknowledged that the Iranian witnesseswere not the best witnesses to testify regarding this issue since they were not involved in the divorce --He knew for several years the importance of the evidence that would establish his wife's intention todivorce him -- He never previously requested directions as to how to deal with this issue -- HELD:Application dismissed -- One of the central trial issues was the cause of the divorce -- Credibility of theIranian witnesses was critical -- Court would not be able to observe their demeanour throughteleconferencing -- Teleconferencing was also not feasible because of questions about the witnesses'reliability -- No evidence was tendered about Iranian laws regarding the administration of an oath andenforcement procedures for its violation -- Issuance of order was not in the interest of justice and wouldnot secure the just, most expeditious and least expensive determination of the contested issues in thisaction.

Statutes, Regulations and Rules Cited:

Courts of Justice Act, R.S.O. 1990, c. C-43 s. 106

Federal Courts Act, R.S.C. 1985, c. F-7 s. 53(1)

Federal Court Rules, 1998, SOR/98-106 Rule 3, Rule 32, Rule 55, Rule 271, Rule 272, Rule 282(1),Rule 286, Rule 362(1)

Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194 Rule 1.08, Rule 1.08(3)

Saskatchewan Queen's Bench Rules Rule 284A(1)

Tax Court of Canada Act, R.S.C. 1985, c. T-2 s. 3

Counsel:

Silvia R. Maciunas, for the plaintiff.

Michael Roach, for the defendant.

REASONS FOR ORDER AND ORDER

1 MARTINEAU J.:-- On October 19, 2005, five days prior to the scheduled commencement of thistrial, through his counsel, the Plaintiff made an informal request for directions in respect of alternativeways of obtaining the evidence of two witnesses who reside in Iran, namely, the Plaintiff's brother,Hassan Farzam and his mother, Razia Farzam (the Iranian witnesses).

2 On the afternoon of Friday, October 21, 2005, at approximately 1:35 p.m., the Plaintiff filed andserved on the Defendant a formal motion for an order from the Court to allow the Plaintiff to introducethe evidence of the Iranian witnesses at the trial through the use of teleconferencing. This motion wasmade returnable to the Court on October 24, 2005, at 9:30 a.m., in Ottawa, and is opposed by the


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Defendant.

3 The Plaintiff brings the present motion under Rule 286 of the Federal Courts Rules, 1998SOR/98-106 (the Rules) which reads as follows:

286. The Court may, before trial, order that evidence of any fact be given at the trialin such a manner as may be specified in the order, including

(a) by statement on oath of information or belief; (b) by the production of documents or other material; (c) by the production of copies of documents; or (d) in the case of a fact that is or was a matter of common knowledge either

generally or in a particular district, by the production of a specifiedpublication containing a statement of that fact..

* * *

286. La Cour peut, avant l'instruction, ordonner que la preuve d'un fait particuliersoit présentée à l'instruction de la manière précisée dans l'ordonnance,notamment :

a) par une déclaration sous serment de renseignements ou d'une croyance; b) par la production de documents ou d'éléments matériels; c) par la production de copies de documents; d) dans le cas d'un fait notoire ou d'un fait connu dans un district particulier,

par la production d'une publication particulière qui relate ce fait.

4 On Monday, October 24, 2005, at 9:30 a.m., in Ottawa, the Court heard the oral submissions ofcounsel prior to the commencement of the trial.

5 The following facts are not in dispute.

FACTUAL BACKGROUND

6 On March 28, 1984, the Plaintiff and Mrs. Esmat Mohiti were married in Iran. The Plaintiff was inthe Shomeli refugee camp in Iraq from 1984 to 1988. On October 26, 1988, he arrived in Canada on aMinister's Permit. However, he did not have permanent resident status. On November 5, 1991, thePlaintiff was granted landed immigrant status.

7 On June 30, 1992, the Plaintiff's sponsorship application for his wife, including the undertaking ofassistance, was approved and forwarded to the Damascus office of the Defendant. The Damascus officereceived the sponsorship application on July 29, 1992. Nonetheless, on June 4, 1993, the Damascusoffice sent a telex to the Plaintiff's wife, Mrs. Mohiti, stating that the Plaintiff had not submitted theundertaking of assistance.

8 Sometime in late December 1993, Mrs. Mohiti apparently divorced the Plaintiff in Iran.

9 On January 10, 1994, a Minister's permit was issued by the Canadian embassy in Damascus for


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Mrs. Mohiti to come to Canada.

COURT PROCEEDINGS

10 On August 4, 1995, a statement of claim was filed by the Plaintiff in the Ontario Court (GeneralDivision) under file no. 93311/95. The Plaintiff was seeking damages as a result of the defendant'salleged negligence regarding the processing of his and his former wife's immigration files. OnNovember 17, 1995, Soublière J. issued an order staying the proceedings under section 106 of theCourts of Justice Act, R.S.O. 1990, c. C-43.

11 On March 14, 1996, the Plaintiff filed a statement of claim in the Federal Court, Trial Division (asit then was), in which he sought damages as a result of the defendant's alleged negligence relating to theprocessing of both his and his former wife's immigration files. Since August 10, 1999, Hugessen J. hasacted as case management judge. Aronovitch P. assisted him in the proceedings.

12 On September 16, 2002, the Defendant filed a motion for summary judgment in which it wasargued that there was no genuine issue for trial. Essentially, the motion was based upon limitationperiods having expired when the action was brought. The motion was allowed in part by Hugessen J. onFebruary 10, 2003. An appeal by the Plaintiff was dismissed by the Federal Court of Appeal on October29, 2003 following a status review.

13 In his reasons, Hugessen J. took the view that the action of the Plaintiff could be divided into threedistinct claims, all involving negligence. The first claim was based on alleged misrepresentations madeto the Plaintiff by an immigration official outside of Canada, prior to the Plaintiff ever coming toCanada. The second claim was based upon an alleged loss of employment opportunities due to thetreatment of the Plaintiff as a refugee claimant, which precluded him from employment withoutauthorization. The third claim pertained to damages resulting from an alleged marriage breakdown dueto the Defendant's alleged negligent actions; which purportedly resulted in the Plaintiff suffering fromdepression.

14 In effect, the order rendered by Hugessen J. restricted the Plaintiff's action in the followingmanner: while his first two claims were found to be out of time because of limitation periods, thePlaintiff could still rely on his third claim, but only insofar as damages were based on acts or omissionsby officials of the Defendant committed outside Canada:

Now, turning to the claim or that part of the claim based upon the acts andomissions of the defendant and its officials in dealing with the request that theplaintiff's wife come to Canada, there is evidence upon which the Court mightfind that the delay in dealing with the wife's application was due to negligencein either the Tehran or Damascus offices of the defendant. ImmigrationOfficials in those offices do not enjoy the protection of the Ontario PublicAuthority Protection Act in respect of acts or omissions done by them in thoseoffices. Accordingly, that part of the claim which is based upon allegednegligence by officials in overseas offices of the Department appears to betimely and should not be dismissed.

However, the claim must be limited to acts or omissions by officials of theDepartment committed outside Canada, and that part of it, which may be based


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upon acts or omissions of officials in Ontario, must likewise be dismissed.

15 Following a pre-trial conference, in her order dated February 1, 2005, and in reference to theabove order of Justice Hugessen, Madam Prothonotary Aronovitch summed up the factual and legalframework applicable to the case at bar:

a) Whether, in the circumstances of this case, a prima facie duty of care wasowed to the Plaintiff regarding the processing of his wife's application?

b) Whether the actions or omissions of CIC officials acting outside ofCanada breached the applicable duty of care regarding the handling andprocessing of Mrs. Mohiti's file?

c) In the event that liability can be established, what is the appropriatequantum of damages?

d) Is the successful party entitled to costs, and if so, in what amount?

16 The parties having indicated their readiness to proceed at the earliest available opportunity for 12days to be set aside, on March 16, 2005, Lutfy C.J. issued an order setting out the trial date as October24, 2005, to be heard in Ottawa. This was nearly seven months ago.

17 A trial management conference was held at my initiative on October 12, 2005. The fact that theIranian witnesses may not be present at the trial had been raised informally for the first time byPlaintiff's counsel in a letter dated October 3, 2005, addressed to the attention of the Chief Justice.Shortly afterwards, I issued the following Direction to the Registrar on October 5, 2005:

Ask the parties' counsel to send their written submissions to the Court on orbefore Tuesday October 11, 2005, at noon:

(1) concerning the admissions that could be made regarding the facts onwhich the Iranian witnesses could testify at the trial in the event that thevisas cannot be issued before the date of the trial;

(2) alternatives in the event that no admission on the content of thetestimonies is possible;

(3) any request for adjournment or postponement of the case in the eventthat the parties cannot agree on an acceptable alternative;

(4) any other procedural or evidential question requiring directions from theCourt before the trial.

18 On October 12, 2005, further to the written submissions made by the parties, the Court wasinformed that the Plaintiff had made arrangements on July 25, 2005, to have interpreters available forthe trial. It also appears that on August 5, 2005, the Plaintiff had served and filed a motion to order theAdministrator to issue subpoenas to facilitate the entry in Canada of family members who reside in Iran.The Plaintiff submitted then that these witnesses would likely testify with regard to Mrs. Mohiti'sreasons to divorce and remarry another man. Indeed, on August 18, 2005, Prothonotary Aronovitchissued an order to compel the appearances of the Iranian witnesses, as well as the Plaintiff's sister, Mrs.Goulsom Farzam, also Iranian. However, on October 3, 2005, the Iranian witnesses' applications forvisas were denied by Canadian immigration officials. At the conference, Plaintiff's counsel expressedhis client's desire to have the trial adjourned pending judicial review proceedings in order to force the


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Minister to deliver visas to the Iranian witnesses. Incidentally, the Plaintiff does not intend to call hissister, Mrs. Goulsom Farzam, or Mrs. Mohiti as witnesses at the trial. The Court was advised by counselthat Mrs. Mohiti had apparently cut off all communications with the Plaintiff and that her new husbandwould not likely permit her to testify in this case. The Court was also informed by counsel that theparties were currently in the process of preparing a joint book of documents and of finalising an agreedstatement of facts, already overdue. In any event, this statement, at the insistence of the Defendant,would not include any admission as to the content of the testimonies of the Iranian witnesses. Moreover,the Defendant was not ready to admit that Mrs. Mohiti had divorced the Plaintiff in 1993 as a directresult of the delays and alleged errors made by the immigration officials employed by the Defendant atthe Damascus and Tehran offices. In view of all this, Plaintiff's counsel expressed the desire to bepermitted to present a motion to introduce evidence by alternative means.

19 Further to the representations made by counsel on October 12, 2005, I issued the followingdirections:

The parties are to file their agreed statement of facts by 4:00 pm on 12 October2005. The parties shall file a joint book of documents by 4:00 pm on 13October 2005. The Plaintiff shall serve and file any motion to adjourn the trialof this action by no later than 4:00 pm on 13 October 2005. The motion is to bein writing and to the attention of the Chief Justice. The defendant's respondingmotion record is to be served and filed by 4:00 pm on 14 October 2005. Anyreply on behalf of the Plaintiff should be served and filed by 4:00 pm on 17October 2005. It is also directed that should the Plaintiff wish to bring anymotion for alternative means to introduce evidence, it should be served andfiled within the same time limitations as those concerning the motion toadjourn the trial.

20 Indeed, on October 13, 2005, the Plaintiff filed a motion for adjournment in order to seek leave forjudicial review of the visa officers' decisions to refuse visas to the Iranian witnesses, which would allowthem to attend the trial or to obtain evidence by alternate means (the motion for adjournment).Concurrently, the Plaintiff brought another motion made under Rule 286 to allow the introduction oftwo documents apparently prepared by Mrs. Mohiti in 1993 and 1996 that the Plaintiff claimed wouldprovide evidence of the cause of the alleged divorce his ex-wife apparently sought in Iran sometime inlate December 1993 (the motion to introduce the statements of Mrs. Mohiti).

21 Moreover, on or about October 17, 2005, the Iranian witnesses, through Plaintiff's counsel, servedand filed separate applications for leave and judicial review seeking that this Court set aside the visaofficers' decisions to deny their applications for temporary resident visas on the basis that they wouldlikely not leave Canada at the end of their stays (Hassan Farzam v. Canada (Minister of Citizenship andImmigration) IMM-6269-05 and Razia Farzam v. Canada (Minister of Citizenship and Immigration)IMM-6266-05).

22 On October 18, 2005, Lutfy C.J. dismissed the motion for adjournment and ordered that all otherissues, including the issue of the costs of that motion, be referred to the trial judge. On October 21,2005, I dismissed the motion to introduce the statements of Mrs. Mohiti, as I found that this hearsayevidence did not satisfy the separate requirements of necessity and reliability (Hussein v. Her Majestythe Queen in right of the Minister of Citizenship and Immigration, [2005] F.C.J. No. 1757, 2005 FC1432).


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THE PRESENT PROCEEDINGS

23 At the outset, it is important to underline the fact that by Direction dated October 12, 2005, theCourt specifically required that the Plaintiff was to serve and file "any motion for alternative means tointroduce evidence" by October 13, 2005. The Plaintiff could have then filed then a formal motion toallow the Plaintiff to introduce the evidence of the Iranian witnesses at the trial through alternativemeans. Apparently, the Plaintiff was content in making a motion for adjournment of the trial and amotion to introduce the statements of Mrs. Mohiti. Both motions were dismissed which brings us to thepresent motion to introduce the evidence of the Iranian witnesses at trial through the use ofteleconferencing made presentable at the commencement of the trial on October 24, 2005. I note that thenotice of motion and accompanying affidavit have not been served and filed at least two days before theday set out in the notice for the hearing as required under Rule 362(1). Moreover, there is no urgencyalleged. The trial in this case has been set down some seven months ago. This new motion foralternative means of evidence made under Rule 286 is presented the day the trial is supposed to start.The Court should be able to control its process and, at this late date, it is certainly entitled to refuse toentertain the informal request for directions and subsequent motion to allow the Plaintiff to introducethe evidence of the Iranian witnesses at the trial through the use of teleconferencing. At this late date,there are no special circumstances in this case warranting the exercise of the Court's discretion underRule 55 to vary a rule or dispense with the requirement for compliance with a rule.

24 That being said, even if the present motion is made at the "eleventh hour", Plaintiff's counselstrongly urges that, in the interest of justice, I should hear and dispose of it. Moreover, she submits thatthere is a risk that the Plaintiff will not have a "fair trial" if the Iranian witnesses are not permitted totestify at trial through telephone. Having examined and weighed all relevant factors, and in the exerciseof my discretion, I am not satisfied that the just, most expeditious and least expensive determination ofthis action requires that the Iranian witnesses be heard through the use of teleconferencing at the trial.

25 Subsection 53(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, states the following:

53. (1) The evidence of any witness may by order of the Federal Court of Appealor the Federal Court be taken, subject to any rule or order that may relate to thematter, on commission, on examination or by affidavit.

* * *

53. (1) La déposition d'un témoin peut, par ordonnance de la Cour d'appel fédéraleou de la Cour fédérale, selon le cas, et sous réserve de toute règle ouordonnance applicable en la matière, être recueillie soit par commissionrogatoire, soit lors d'un interrogatoire, soit par affidavit.

26 Indeed, at the trial, as a general rule, Rule 282(1) provides that "[u]nless the Court ordersotherwise, witnesses at trial shall be examined orally and in open court". Moreover, Rule 286 providesthat "[t]he Court may, before trial, order that evidence of any fact be given at the trial in such a manneras may be specified in the order". In this regard, Rule 271 provides that on motion, the Court may orderthe examination for trial of a person out of Court, and Rule 272 provides that where an examinationunder Rule 271 is to be made outside Canada, the Court may order the issuance of a commission underthe seal of the Court, letters rogatory, a letter of request or any other document necessary for theexamination.


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27 That being said, I note that Rule 32, which is not invoked by the Plaintiff, provides that "[t]heCourt may order that a hearing be conducted in whole or in part by means of a telephone conferencecall, videoconference or any other form of electronic communication" (my emphasis). While there areno particular guidelines for the exercise of the Court's discretion, Rule 32 should "be interpreted andapplied so as to serve the just, most expeditious and least expensive determination of every proceedingon its merits" (Rule 3). Prior to the adoption of the new Rules in 1998, I note that in 1992 and 1996, theCourt had issued a Practice Direction and Circular No. 5/96 respecting telephone and videoconferencing. It appears that telephone conferences or video conferences can provide, in appropriatecircumstances, an alternative means of access to court hearings in order to facilitate the advancement ofcases, including access on urgent matters and across long distances and to save costs in time and travelfor litigants, judges and registry staff. It is apparent that such alternative means have been available forthe following types of hearings: any motion; case scheduling conference; pre-trial conference; and otherconference hearings. In those instances, the evidence brought to the attention of the Court was usually inthe form of affidavits and proper documentary record. Representations were made orally by counsel indifferent locations. However, to this Judge's knowledge, telephone and video conferences have not beenused by the Court at trial as a substitute to hearing witnesses in open court. As such, considering thegeneral principle mentioned at Rule 282(1), such a procedure, if permitted at trial by an order of theCourt, certainly constitutes an exceptional mode of admitting evidence, akin to a form of commissionevidence.

28 While it is not clear whether or not the word "hearing" used in Rule 32 encompasses the "trial" ofan action, it should be interpreted in a liberal matter. I note that Rule 4 provides that "[o]n motion, thecourt may provide for any procedural matter not provided for in these Rules or an Act of Parliament byanalogy to the Rules or reference to the practice of the superior court of the province to which thesubject matter of the proceeding most closely relates". In this regard, Rule 4 makes it clear that whereprovincial practice is adopted, it is to be the practice of the relevant provincial superior court. Thepresent action was instituted in Ontario. Assuming for the purpose of the present motion it would benecessary to rely on the "gap" rule, a point that does not need to be definitely resolved, the practice ofthe Superior Court of Justice in Ontario appears to most clearly relate to the subject matter of thepresent proceeding. Although not directly applicable, I also note that viva voce testimony by telephoneor by an audio-visual method may be admissible at trial in Saskatchewan by the Court of Queen'sBench, or at the hearing of an appeal instituted before the Canada Tax Court, also a superior court ofrecord (section 3 of the Tax Court of Canada Act R.S.C. 1985, c. T-2).

29 Starting with the practice followed in the province of Ontario, Rule 1.08 of the Rules of CivilProcedure, R.R.O. 1990 Reg. 194, reads as follows:

1.08 (1) If facilities for a telephone or video conference are available at thecourt or are provided by a party, all or part of any of the following proceedingsor steps in a proceeding may be heard or conducted by telephone or videoconference as permitted by subrules (2) to (5):

1. A motion (Rule 37). 2. An application (Rule 38). 3. A status hearing (Rule 48.14). 4. At trial, the oral evidence of a witness and the argument. 5. A reference (Rule 55.02).


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6. An appeal or a motion for leave to appeal (Rules 61 and 62). 7. A proceeding for judicial review. 8. A pre-trial conference, a case conference, a settlement conference or a

trial management conference. O. Reg. 288/99, s. 2; O. Reg. 24/00, s. 1.

(2) If the parties consent to a telephone or video conference and if thepresiding judge or officer permits it, one of the parties shall make the necessaryarrangements. O. Reg. 288/99, s. 2. Order, No Consent

(3) If the parties do not consent, the court on motion may make an orderdirecting a telephone or video conference on such terms as are just. O. Reg.288/99, s. 2.

(4) The judge or officer presiding at a proceeding or step in a proceedingmay set aside or vary an order made under subrule (3). O. Reg. 288/99, s. 2.Factors to Consider

(5) In deciding whether to permit or to direct a telephone or videoconference, the court shall consider,

(a) the general principle that evidence and argument should be presentedorally in open court;

(b) the importance of the evidence to the determination of the issues in thecase;

(c) the effect of the telephone or video conference on the court's ability tomake findings, including determinations about the credibility ofwitnesses;

(d) the importance in the circumstances of the case of observing thedemeanour of a witness;

(e) whether a party, witness or solicitor for a party is unable to attendbecause of infirmity, illness or any other reason;

(f) the balance of convenience between the party wishing the telephone orvideo conference and the party or parties opposing; and

(g) any other relevant matter. O. Reg. 288/99, s. 2.

(6) Where the court permits or directs a telephone or video conference,the court may direct a party to make the necessary arrangements and to givenotice of those arrangements to the other parties and to the court. O. Reg.288/99, s. 2.

* * *

1.08 (1) Si des installations en vue de la tenue d'une conférence téléphoniqueou d'une vidéoconférence sont disponibles au tribunal ou sont fournies par unepartie, tout ou partie de l'une ou l'autre des instances ou étapes d'une instancesuivantes peut être entendu ou mené par conférence téléphonique ouvidéoconférence comme le permettent les paragraphes (2) à (5) :


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1. Une motion (Règle 37). 2. Une requête (Règle 38). 3. Une audience sur l'état de l'instance (règle 48.14). 4. Lors du procès, le témoignage oral d'un témoin et la plaidoirie. 5. Un renvoi (règle 55.02). 6. Un appel ou une motion en autorisation d'interjeter appel (Règles 61 et

62). 7. Une instance relative à la révision judiciaire. 8. Une conférence préparatoire au procès, une conférence relative à la

cause, une conférence en vue d'une transaction ou une conférence degestion du procès. Règl. de l'Ont. 288/99, art. 2; Règl. de l'Ont. 24/00,art. 1.

(2) Si les parties consentent à une conférence téléphonique ou à unevidéoconférence et que le juge ou l'officier de justice qui préside l'autorise,l'une des parties prend les dispositions nécessaires. Règl. de l'Ont. 288/99, art.2.

(3) Si les parties ne donnent pas leur consentement, le tribunal peut, surmotion, rendre une ordonnance prescrivant la tenue d'une conférencetéléphonique ou d'une vidéoconférence, à des conditions justes. Règl. de l'Ont.288/99, art. 2.

(4) Le juge ou l'officier de justice qui préside une instance ou une étaped'une instance peut annuler ou modifier une ordonnance rendue en vertu duparagraphe (3). Règl. de l'Ont. 288/99, art. 2. Facteurs à prendre enconsidération

(5) Lorsqu'il décide s'il doit autoriser ou ordonner la tenue d'uneconférence téléphonique ou d'une vidéoconférence, le tribunal tient compte desfacteurs suivants :

a) le principe général selon lequel les témoignages et les plaidoiriesdevraient être présentés oralement en audience publique;

b) l'importance des témoignages pour ce qui est de trancher les questions enlitige dans la cause;

c) l'effet de la conférence téléphonique ou de la vidéoconférence sur lacapacité du tribunal d'émettre des conclusions, y compris des décisionsrelatives à la crédibilité des témoins;

d) l'importance d'observer le comportement d'un témoin, compte tenu descirconstances de l'affaire;

e) la question de savoir si une partie, un témoin ou le procureur d'une partiene peut se présenter pour cause d'infirmité, de maladie ou pour tout autremotif;

f) la prépondérance des inconvénients qu'il établit entre ceux que subirait la


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partie qui souhaite la tenue de la conférence téléphonique ou de lavidéoconférence et ceux que subiraient la ou les parties qui s'y opposent;

g) les autres questions pertinentes. Règl. de l'Ont. 288/99, art. 2.

(6) Le tribunal qui autorise ou ordonne la tenue d'une conférencetéléphonique ou d'une vidéoconférence peut enjoindre à une partie de prendreles dispositions nécessaires à cette fin et d'en donner avis aux autres parties etau tribunal. Règl. de l'Ont. 288/99, art. 2.

30 At the hearing, counsel were unable to refer this Court to any caselaw or relevant precedentdealing with the issue raised in this motion. In a brief research subsequent to the hearing, I was able tofind a few relevant cases which are commented below. The first decision is Pack All Manufacturing Inc.v. Triad Plastics Inc., [2001] O.T.C. 1022 (Ont. Sup. Ct.), [2001] O.J. No. 5822 (Q.L.). In this case, aplaintiff actually sought before the Ontario Superior Court of Justice an order under Rule 1.08(3) of theof the Ontario Rules of Civil Procedure to admit the evidence of a witness who worked and resided inthe State of Virginia in order to avoid incurring direct travel costs of over $2000 that would be requiredto bring the witness to Ottawa. The evidence in chief of said witness was estimated at about one-halfhour. There was no evidence that the witness in question was unable or unwilling for any reason tocome to Ottawa and testify of her own volition, assuming all her expenses were paid. Her evidence wasimportant and the cost of bringing her was not all that great in relation to the amount of money at issuein the trial, which was somewhere in the range of $80,000 to $105,000, including claims by both thedefendant and the plaintiff. A "will say" statement of her expected evidence had already been given todefendant's counsel. Counsel for the defendant, who had consented to the evidence of certain otherwitnesses for the plaintiff being produced by video conference, objected to the order sought on the basisthat the testimony of this witness was expected to be at odds with that of an important witness for thedefendant and counsel urged that an assessment of the credibility of the Virginia witness was veryimportant and for that reason she should be produced, live, before the trial judge. The plaintiff's motionwas dismissed.

31 While the reasons in Pack All Manufacturing Inc., supra, are not all applicable in the present case,Rutherford J. suggested that a trial judge can see, hear and evaluate a witness' testimony very well,assuming the video conference arrangements are good. The following passages of his reasoning arerelevant:

In my experience, a trial judge can see, hear and evaluate a witness' testimonyvery well, assuming the video-conference arrangements are good. Seeing thewitness, full face on in colour and live in a conference facility is arguably asgood or better than seeing the same witness obliquely from one side as is thecase in our traditional courtrooms here in the Ottawa Court House. Thedemeanour of the witness can be observed, although perhaps not the full body,but then, sitting in a witness box is not significantly better in this regard.Indeed, I often wonder whether too much isn't made of the possible ability toassess the credibility of a witness from the way a witness appears while givingevidence. Doubtless there are "body language" clues which, if properlyinterpreted, may add to the totality of one's human judgment as to thecredibility of an account given by a witness. The danger lies in misinterpretingsuch "body language," taking nervousness for uncertainty or insincerity, forexample, or shyness and hesitation for doubt. An apparent boldness or


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assertiveness may be mistaken for candour and knowledge while it may merelybe a developed technique designed for persuasion. Much more important ishow the substance of a witness' evidence coincides logically, or naturally, withwhat appears beyond dispute, either from proven facts or deduced likelihood. Iam not at all certain that much weight can or should be placed on the advantagea trier of fact will derive from having a witness live and in person in thewitness box as opposed to on a good quality, decent sized colour monitor in avideo-conference. While perhaps a presumption of some benefit goes to thelive, in person appearance, it is arguable that some witnesses may performmore capably and feel under less pressure in a local video-conference withfewer strangers present and no journeying to be done.

32 That being said, while there is much to be said for using the modern technology available andtaking evidence by video conference, Rutherford J. cautioned that "it is not a manner of taking evidenceavailable to parties as matter of right. Unless consented to by the opposite party, the Court must balancethe relevant factors and determine whether the advantages of using video conferencing outweigh thepossible prejudice that might arise." In other words, in such cases, it is a balancing act betweencompeting factors to ensure that the interests of justice are better served. This is certainly not an easytask for this Judge, as the stakes are high on both sides.

33 The second case was decided in 1996 by the Saskatchewan Court of Queen's Bench wherein anapplication for an order permitting a medical practitioner to give viva voce evidence in support of theplaintiff via telephone conference call was made pursuant to the Saskatchewan Queen's Bench Rules, R.284A(1). This rule provides that the court can order the taking of testimony by teleconference or by anaudio-visual method approved by the Court where the parties consented or where it "may be necessaryfor the purposes of justice". Indeed, in Kapell v. Abel, [1996] S.J. No. 573, 149 Sask.R. 46, thedefendant had not consented to allow into evidence at trial the medical reports and medical notes andrecords of an expert witness who was now residing in Arizona. The expert witness was important to thecase of the plaintiff, being one of her physiotherapists, and would provide the court "with all relevantmedical information so that a just and fair assessment of [the plaintiff's] damages can be made." Themotion was dismissed as the court was not satisfied that the order requested, "is necessary for thepurposes of justice."

34 While the case at bar presents some features distinguishable from those present in Kapell, supra,Geatros J.'s general reasoning is nevertheless relevant:

In the present case, there are factors such as those that confronted Halvorson J.which weigh against the granting of the order sought. In particular, it is experttestimony proposed to be elicited over the telephone; it is apparent that bothexamination and cross-examination will be lengthy and there is prejudice thedefendant would likely encounter by reason of the difficulty in showingdocuments or exhibits to the witness during cross-examination. The sole factor,in effect, in favour of granting the order is that the attendance of the witness attrial would be costly and inconvenient. Certainly, I suggest, it cannot be said tobe "unnecessary" given the plaintiff's assessment that Monique Knipple is an"important" witness and "necessary" for her case, in the words of the plaintiffin her affidavit, "... for the purpose of providing the court with all relevantmedical information so that a just and fair assessment of my damages can be


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made."

35 Geatros J. refers to Halvorson J.'s reasons in Squires v. Fong, [1983] S.J. No. 147, 24 Sask.R. 159,at page 160:

It would not be appropriate to endeavour to formulate a set of guide linesgoverning when the rule could or could not be successfully invoked. Inapplying this rule the particular facts of each case will dictate whethertelephone evidence is "necessary for the purposes of justice".

It should be noted the rule was passed to modernize and effect economy incourt proceedings. The rule should not be emasculated by an unduly restrictiveinterpretation, but it should not be given such a liberal construction as willopen the flood gates for telephone evidence, thereby removing from allconcerned the opportunity to observe the demeanour of the witness. Middleground m[u]st be found to meet the objectives of the rule without depriving thecourt of the advantages, unnecessarily, of seeing the witness.

36 Finally, in Ramnarine v. Canada, [2001] T.C.J. No. 736, 2001 DTC 991, the Tax Court of Canadaconsidered an application made by a taxpayer, Mr. Ramnarine, residing in Saskatchewan for an orderdirecting that the evidence of his non-Saskatchewan resident witnesses be received in Court by affidavitor telephone. Ramnarine was assessed by the Minister of National Revenue for the 1994 and 1995taxation years on the basis of what was commonly called a net worth assessment. Part of the basis of hisappeal was that the Minister had failed to take into account monies that he had received from his formerhome of Guyana. Mr. Ramnarine moved to Saskatchewan in 1978 at the age of 45 years due to thedeteriorating political and economic climate in Guyana. In anticipation of leaving, he claimed to havedisposed of assets and converted funds into foreign currency that he gradually and secretly withdrewover the years. He claimed to have received $15,000 each year in 1994 and 1995 from Guyana. Hewished to call two witnesses from Ontario who were former residents of Guyana and had knowledge ofthe political climate and racial tensions there and the various methods by which Guyanese residentsattempted to obtain foreign currency and move it out of the country. He also wished to call a certainSripal, a businessman from Guyana, who had arranged for the delivery of the currency to him in 1994and 1995. In addition, he wanted to call three witnesses from Guyana to testify as to his business andproperties and their value in the 1970s. Ramnarine did not expect any of the evidence to be complicatedor to involve documents. He was living on old age pension and claimed not to have sufficient funds toprovide the witnesses with conduct money to appear in Saskatchewan. The amount of money in issuewas less than the cost of the witnesses attending court.

37 The application was allowed in part by the Tax Court of Canada. The Ontario residents wereallowed to provide their testimony via videoconferencing. The interests of justice would not have beenserved by requiring Ramnarine to pay conduct money when the expense exceeded the amount of taxinvolved. The Ontario witnesses were offering relevant opinion evidence and videoconferencingafforded the Court the opportunity to observe the witnesses for credibility purposes. Of the Guyanesewitnesses, with the exception of Sripal, the extraordinary measure of testimony by telephone was notwarranted. Their evidence was not likely to be relevant. Ramnarine left Guyana in 1978 and anyevidence these witnesses could have provided would likely have been stale. Sripal was allowed toprovide his evidence by teleconferencing. His evidence was going to be brief and there was no necessityfor reference to documents. Sripal's evidence was necessary because it dealt directly with the transfer of


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funds to Canada in 1994 and 1995. Sripal was not an expert witness and was not going to be subjectedto extensive scrutiny by the Crown. He was required to be sworn in according to the laws of bothGuyana and Canada. A judge or lawyer was required to explain to him the consequences of perjury.

38 In Ramnarine, Miller T.C.J. summarized in the following way the factors justifying the granting ofan order for evidence by teleconferencing in that case:

There are instances where the interests of justice can best be served in the TaxCourt by a practical approach to the implementation of rules. This is one ofthose instances. This granting of an Order for evidence by teleconferencing isnot intended to open any floodgates. It is limited to the circumstances of thisparticular appeal and specifically the following factors:

(1) The appeal is in regard to what has been described as the bluntinstrument of a net worth assessment;

(2) The cost is substantial in connection with the tax in issue; (3) The Appellant's financial resources are prima facia limited; (4) The witness is outside North America; (5) The witness is not an expert; (6) The Witness will not rely on any documentary evidence; (7) The testimony is limited in scope and is anticipated to be brief in

duration; and (8) The witness must testify in the presence of a judge or lawyer of the

foreign jurisdiction under oath in that jurisdiction.

39 In the case at bar, it is manifest that one of the central issues at trial will revolve around thecausation of the alleged divorce. For the purpose of the present motion, I shall assume that Mrs. Mohitidivorced the Plaintiff sometime in late December 1993 and that she remarried in Iran a few months afterobtaining her divorce. The exact circumstances of her divorce have not been alleged by the Plaintiff andit is not clear how and why the alleged divorce was sought, obtained or, as the case may be, decided byan Iranian court. In any event, what the Plaintiff wishes to enter as evidence at the trial through theevidence of the Iranian witnesses is not the divorce itself but essentially Mrs. Mohiti's personal reasonsfor divorcing him. This is one of the most crucial issues which will be contemplated at trial. Evidence ofintention is quite different from the evidence required, for example, to show the occurrence of a divorce.Understandably, the causation of the alleged divorce is highly contentious as it arose from theculmination of factual events and/or emotional experiences of Mrs. Mohiti.

40 The Plaintiff indirectly acknowledged in his affidavit that the Iranian witnesses are not the bestwitnesses to testify on the reasons why Mrs Mohiti divorced the Plaintiff. Indeed, there is no allegationin the affidavit submitted by the Plaintiff in support of the present motion that the Iranian witnessesencouraged Mrs. Mohiti to divorce or were somewhat directly implicated or participated in any divorceproceedings taken in Iran by Mrs. Mohiti. Given that it is Mrs. Mohiti who took the initiative to seek thedivorce, the best witness to give evidence to the Court on this issue would be Mrs. Mohiti herself.However, she resides in Iran. In the present case, the Plaintiff has stated that Mrs. Mohiti wasunavailable to testify as she was unwilling to participate in the proceedings in any way. The Plaintiffsuggests that even if she had been willing to do so, her current husband would not allow her to apply fora visa or a passport in order to testify in Canada. However, these statements have been put forward


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without supporting or credible evidence to this effect. The Plaintiff simply states that Mrs. Mohitiapparently agreed to assist him in 1996 by providing "a declaration regarding her attempts to immigrateto Canada and the case of our divorce". However, the Plaintiff precises that he was advised that "thiswas the most [Mrs. Mohiti] was willing to do to help me with my case". There is no mention in thePlaintiff's affidavit of any subsequent attempt made at any time by the Plaintiff or his family to securethe cooperation of Mrs. Mohiti or her new husband in this proceeding. In view of their laconic andhearsay character, I afford very little weight to the following general explanations given by the Plaintiff:"[since 1996, Mrs. Mohiti's husband] has barred her from communicating with me and my family. Myfamily was told to desist from contacting Mrs. Mohiti or the police would be called".

41 It is a fact that Mrs. Mohiti will not be present during the course of the trial. The Plaintiff knew theimportance of the evidence establishing the intention of Mrs. Mohiti to divorce him for quite a longtime. The present case has been in case management since at least 1999. The Plaintiff never requestedthe case management judge or prothonotary to issue directions concerning the manner in which he couldhave dealt with this specific issue. The fact that Mrs. Mohiti is apparently unwilling to testify and thatthe Iranian witnesses were recently refused visas to come to Canada are the main reasons advanced bythe Plaintiff to ask, at the commencement of the trial, for an order under Rule 286.

42 In the case at bar, the credibility of the evidence of the Iranian witnesses is critical. In my opinion,the "just" determination of the contentious issues in the trial, here the cause or causes of the allegeddivorce, necessarily implies that the Defendant be given the opportunity to cross-examine the Iranianwitnesses. However, it is obvious from the facts of the case that, through teleconferencing, I will not beable to observe the Iranian witnesses' demeanour.

43 In B. (K. G.) [1993] 1 S.C.R. 740 at 792, 79 C.C.C. (3d) 257, Lamer C.J. emphasized the handicapof the trier of fact in assessing the credibility of the declarant in such circumstances:

When the witness is on the stand, the trier can observe the witness's reaction toquestions, hesitation, degree of commitment to the statement being made, etc.Most importantly, and subsuming all of these factors, the trier can assess therelationship between the interviewer and the witness to observe the extent towhich the testimony of the witness is the product of the investigator'squestioning.

44 Plaintiff's counsel readily recognizes that the Court, through video conferencing, would be able toascertain the demeanour of the Iranian witnesses. However, this option has been discarded by his client.Plaintiff's counsel submits that the cost of providing video conferencing at the trial would be excessive.For instance, for two days, this would amount to over $22,000, a sum of money that is beyond themeans of the Plaintiff. Considering the fact that the Plaintiff claims from the Defendant a sumsomewhere near $2,000,000, while important, the sum of $22,000 to cover the costs of the video-conferencing does not appear to be disproportionate.

45 In her request for directions dated October 19, 2005, Plaintiff's counsel proposes, as a firstalternative, that the evidence of the Iranian witnesses be taken by telephone. This is the object of thepresent motion. However, she cautions in her letter that "[t]here appears to be some technologicalbarriers as apparently Iran is on a restricted list with respect of teleconferencing". That being said, it isnot clear from reading the affidavit and material submitted by the Plaintiff in support of the presentmotion whether or not "Iran is on a restricted list with respect of teleconferencing" as previously


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suggested by Plaintiff's counsel. The Plaintiff's general assertion that he simply "believes" that it is"possible" to obtain the evidence of Hassan Farzam and Razia Farzam through teleconferencing is notenough in the present circumstances to justify the making of an order in this regard.

46 Keeping in mind that the Plaintiff has raised this alternative, it was up to him to bring satisfactoryevidence to the Court that teleconferencing is both feasible from a legal and technical point of viewwithin the time frame of a trial of 12 days starting in Ottawa on October 24, 2005. In this regard,important questions remain unanswered. For instance, who will be the company who will provide theteleconferencing services, at what costs and conditions? At what time of the day in Canada and Iran willthis teleconference simultaneously take place? Where will the Iranian witnesses be located? How willthe taking of their oral testimonies through telephone be coordinated in view of the fact that counselhave already indicated that the examinations in chief and cross-examinations involve simultaneoustranslation and may require two days of hearing? Will there be a Court's representative present? Howwill the room be organized and how will the decorum of the Court be maintained? How will anyexclusion order of the witnesses be enforced at trial in the telephone conference facilities in Iran? Sincethe Iranian witnesses will testify in Farsi, how will the Court deal with the taking of the evidence inIran? Should a stenographer be also present in Iran to ensure that the questions and answers are properlyrecorded? Are there special arrangements that need to be taken with the provider of the teleconferenceservices, the Canadian Embassy or the Defendant to assure the presence of the Iranian witnesses andany representatives of the Defendant in Tehran?

47 Despite the fact that inquiries with respect to the possibility of video conferencing had previouslybeen made with AVW TEL-AV, an audio and visual service company in Ottawa, Plaintiff's counselsuggested at the hearing that the Plaintiff did not have sufficient time to make the required inquirieswith respect to the particular conditions under which the proposed teleconference could now take place.However, by oral direction of October 5, 2005, that is, three weeks ago, the parties were specificallyasked to send their written submissions to the Court concerning alternatives in the event that noadmission on the content of the testimonies of the Iranian witnesses was possible. While the options ofvideo conferencing and the taking of evidence by Commission are mentioned in Plaintiff's writtensubmissions dated October 11, 2005, there is no mention of teleconferencing and this possibility was notraised with the Court at the trial management conference held by this Judge on October 12, 2005.

48 Moreover, the Plaintiff has never submitted to this Court, nor apparently to the Defendant, "willsay" statements of the Iranian witnesses in the form of duly sworn statements. It has been suggestedpreviously that Mr. Hassan Farzam attended the Canadian Embassy in Tehran with Mrs. Mohiti onmany occasions. However, there is no way to know today what questions will be actually asked byPlaintiff's counsel. There is a great number of documents in this case. At this point, the Court ignoreswhether or not the Iranian witnesses will be presented with certain documents. How will the Courtproceed in such a case? A further difficulty in this case, besides the simultaneous translation in Englishand Farsi of these testimonies, concerns the likely hearsay character of important parts of this evidence.In this regard, it has been suggested previously that Mrs. Razia Farzam may have heard the confidencesof her daughter-in-law, Mrs. Mohiti. Will the Plaintiff attempt to enter into evidence statements that mayhave been made by Mrs. Mohiti? In turn, this will likely lead to numerous objections by the Defendant.It may not be possible for the trial judge to dispose immediately of all these objections. Indeed, since atranscript may not readily be available, the trial judge may be tempted to permit certain questions andreserve its decision on the objections to a later date. Holding a teleconference in these circumstances canonly add to the length, costs and overall complexity of this proceeding.


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49 My final concern with the Iranian witnesses' testimonies by telephone or video conference is thatof their reliability. In the present case, no evidence was tendered regarding Iranian laws as toadministration of an oath and possible ensuing enforcement procedures. It is imperative that a witnesswho provides evidence in a jurisdiction other than Canada do so under oath in accordance with ourlaws, as well as in accordance with the local laws. While Plaintiff's counsel asserts that the Iranianwitnesses have nothing to gain in this case, I note that the Plaintiff claims damages from the Defendantin the area of $2,000,000. It must be made clear to the Iranian witnesses that they cannot escaperesponsibility for their actions should they have any thought that helping another member of theirfamily, the Plaintiff in this case, requires some shading of the truth. In these circumstances, assumingthat teleconferencing or video conferencing are possible means to take the evidence of the Iranianwitnesses, I believe that there should be a member of the Iran legal system, either judge or lawyerpresent at the local facility to administer the oath and explaining the consequences of perjury to theIranian witnesses prior to administering the oath. Unfortunately, there is no indication in Plaintiff'saffidavit and material that this could be done at this late date since the trial will actually start after theissuance of the present reasons for order and order.

50 For these reasons, having balanced all relevant factors, the evidence before me fails to satisfy methat the issuance of an order that the evidence of the Iranian witnesses be taken by telephone is in theinterest of justice and would secure, at this late date and in the absence of a detailed plan, the just, mostexpeditious and least expensive determination of the contested issues in this action.

51 The second alternative suggested in the informal request for directions dated October 19, 2005, isestablishing a Commission in Iran under Rule 272, or something akin, as Plaintiff's counsel indicates inher letter dated October 19, 2005:

(...) we do not contemplate that the Plaintiff and Defendant would actually go toIran. This would involve high costs, which are also beyond the means of thePlaintiff. Rather we would envisage that taking of evidence could be doneofficially in Iran, by a qualified lawyer or notary, on the basis of writtenquestions accepted by the Defendant and approved by the Court. This methoddoes not provide the Defendant the option of cross-examination. However, theintention would be to have the proceedings transcribed or videotaped.

52 At this point, Plaintiff's counsel simply advises the Court that "[w]e are awaiting confirmation onwhether these methods can be put into place in Iran and would be grateful for guidance on whether amotion to the Court on these matters would be appropriate at this time or whether these matters shouldbe brought before the Court at the commencement of the trial".

53 The second alternative for the institution of a Commission for the taking of evidence in Iran raisedby Plaintiff's counsel in her informal request for directions has not been mentioned in Plaintiff'ssubsequent notice of motion for alternative means to introduce evidence, nor is it discussed in theunderlying affidavit subscribed by the Plaintiff in support of the present motion, and as such, it is not aseriously pursued option before this Court. Moreover, an adjournment request by the Plaintiff foralternatively permitting same was dismissed by Lutfy C.J. on October 18, 2005. In any event, it does notappear possible that commission evidence could be taken before the commencement of trial. As such,the taking of commission evidence would likely require an adjournment of the trial. Accordingly, theCourt declines making any order under rules 271 and 272 for the examination, on commission, of theIranian witnesses.


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CONCLUSION

54 For the reasons stated above, I dismiss the Plaintiff's motion. Considering the result and allrelevant factors, the Defendant will be entitled to his costs.

ORDER

THIS COURT ORDERS that the motion for an order allowing the Plaintiff to introduce theevidence of the Iranian witnesses at the trial of this action through the use of teleconferencing, bedismissed with costs in favour of the Defendant.

MARTINEAU J.

cp/e/qw/qlaim/qltxp


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CITATION: Chandra v. CBC, 2015 ONSC 5385 COURT FILE NO.: 06-CV-310261PD2

DATE: 20150831

ONTARIO

SUPERIOR COURT OF JUSTICE BETWEEN: )

)

RANJIT KUMAR CHANDRA

Plaintiff

– and – CANADIAN BROADCASTING CORPORATION, CHRIS O’NEILL-YATES, CATHERINE MCISAACS, LYNN BURGESS, JACK STRAWBRIDGE and MEMORIAL UNIVERSITY OF NEWFOUNDLAND

Defendants

) ) ) ) ) ) ) ) )))))))

John Lavers, Sarah Learmonth, Richard Bennett and Joseph Figliomeni for the Plaintiff Christine Lonsdale, Elder Marques and Gillian Kerr, for the Defendants CBC, O’Neill-Yates, McIsaacs and Burgess

) ) ) HEARD: 22 April 2015

RULING ON PARTICIPATION OF WITNESSES AT TRIAL BY VIDEO CONFERENCING

MEW J.

[1] A motion was brought a few days before the commencement of trial in this matter to obtain the court’s ruling on whether the CBC defendants could call at trial five witnesses resident outside of Canada by way of video conferencing. The plaintiff opposed this request.

[2] I provided a short written notification of my decision, with reasons to follow, permitting the witnesses identified by the CBC to give their evidence by video conference, subject to certain conditions.

[3] The following paragraphs contain my reasons. They are informed, in part, by the experience of what subsequently occurred at the trial (which is now concluded). In the end, only

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two of the five witnesses gave their evidence by video conference. Of the other three, two of the witnesses attended in person and one was not called at all.

[4] Rule 1.08(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 permits trial evidence by telephone or video conference where the facilities “are available at the court or are provided by a party”.

[5] Where the parties do not consent to a witness giving evidence by telephone or video-conference, the matter is governed by rule 1.08(3):

(3) If the parties do not consent, the court may, on motion or on its own initiative, make an order directing a telephone or video conference on such terms as are just.

[6] Rule 1.08(5) sets out the factors to be considered when exercising this discretion:

(5) In deciding whether to permit or direct a telephone or video conference, the court shall consider,

(a) The general principle that evidence and argument should be presented orally in open court;

(b) The importance of the evidence to the determination of the issues in the case;

(c) The effect of the telephone or video conference on the court’s ability to make findings, including determinations about the credibility of witnesses;

(d) The importance in the circumstances of the case of observing the demeanour of a witness;

(e) Whether a party, witness or lawyer for a party is unable to attend because of infirmity, illness or any other reason;

(f) The balance of convenience between the party wishing the telephone or video conference and the party or parties opposing; and

(g) Any other relevant matter.

[7] Also to be borne in mind is rule 1.04, pertinent portions which provide:

(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

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(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amounts involved, in the proceeding.

[8] The Supreme Court of Canada has noted that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be readjusted – a shift in culture which maintains the goal of a fair process that results in a just adjudication of disputes but does so in a way that is proportionate, timely and affordable: Hryniak v. Mauldin, 2014 S.C.C. 7, [2014] 1 S.C.R. 87.

[9] Four of the five proposed video conference witnesses are resident in the United Kingdom, the fifth is resident in the United States. They are all health care professionals and academics. Only one of the five witnesses is a retained expert (and he ultimately testified in person).

Reasons for the CBC Defendants’ Request

[10] It is projected that the witnesses would each testify from between half a day and 1.25 days.

[11] The cost of bringing these witnesses to Toronto would be high, particularly if last minute flights and accommodation were required, and disproportionate to the time that would be spent by these witnesses testifying.

[12] Two of the proposed witnesses are affected by health issues (either of their own or a family member) which would result in hardship if they had to attend in Toronto.

[13] One of the witnesses, who has clinical responsibility for a ward of acutely ill and frail elderly patients and is already covering for another colleague on leave, has advised that she cannot obtain approval from her clinical director to absent herself from work for the several days necessary to travel from Scotland to Toronto and back to testify in person.

The Plaintiff’s Objections

[14] Some of the objections raised relate to the CBC defendants’ compliance with commitments made during the course of the pre-trial case management process and, in particular, the timing of the delivery of will-say statements summarising the anticipated testimony of the witnesses and the late disclosure of documents. In my view, such considerations are of at best peripheral relevance to the issue of whether these witnesses should be able to give evidence by video conference.

[15] Logistical concerns are also raised. The CBC defendants seek a direction that no less than 48 hours before the scheduled appearance of the witness, the plaintiff should be required to identify the documents, sequentially numbered, that he intends to rely upon during the cross-examination of the witness. In a case in which there are over 30,000 pages of productions, this is claimed by the plaintiff to be unduly onerous. Furthermore, the plaintiff raises the concern that

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the nature of the evidence is such that witnesses will have to refer to multiple documents and, possibly, other demonstrative evidence, “all at the same time” and to make comparisons of such pieces of evidence throughout their testimony. It is submitted that it will be impossible for witnesses participating at trial by video conference to do this.

[16] The plaintiff also points to the failure by the CBC defendants to specify what video conferencing technology will be used. In that regard, the parties are aware that video conferencing hardware is available in the courtroom and that the court and its staff have a considerable amount of experience using various video conferencing services and technologies, but that it would be the responsibility of the parties to make appropriate arrangements in terms of the service provider and the system to be used. But full particulars of the proposed arrangements, in terms of the service provider and the facilities to be used by each of the proposed witnesses had not, at the time the motion was argued, been provided.

[17] The plaintiff argues that the general principle that evidence is to be presented orally in court (rule 1.08(5)(a)) should be accorded considerable weight. The plaintiff, noting that all five witnesses are individuals who have criticised the plaintiff’s research, submits that the plaintiff is, accordingly, entitled to have these critics attend before the court in person to testify, be challenged, and to have their credibility judged before the trier of fact without the possibility of “technological interference”.

Discussion

[18] While the general principle that trial evidence should ordinarily be presented orally is clearly and unequivocally articulated by rule 1.08(5)(a) it is appropriate, particularly in light of the culture shift advocated by the Supreme Court of Canada, to take a 21st century view of the use of video conferencing (and similar technologies).

[19] The Advocates’ Society has taken up the challenge of proposing ways of making the trial process more effective, accessible and affordable. In its June 2015 report, Best Practices for Civil Trials, a Task Force of the Advocates’ Society makes the following recommendation:

11.3 Where court resources permit, counsel and the court should also discuss the potential for out-of-town witnesses to testify via videoconference. Counsel should ensure that the court can accommodate the videoconference request and is comfortable with the testimony being heard by videoconference. Video technology has advanced such that courts have found that it is possible to make findings of fact and decisions about credibility based on videoconference evidence. (Emphasis added)

[20] The use of video or similar technologies does not now represent a significant deviation from the general principle favouring oral evidence in court. Such evidence is given orally, under oath or affirmation, and is observable “live” as it would be with the witness present in the courtroom. Questions are asked and answers are given in the usual way. The witness can be closely observed and most if not all of the visual and verbal cues that could be seen if the

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individual was physically present can be observed on the screen. The evidence is received by the court and heard and understood by counsel and any members of the public who may be present in the courtroom at the time.

[21] Available technologies include not only the ability to examine a witness but, also, to put to that witness in a contemporaneous way documents and other exhibits.

[22] Arbitrations and other private forms of dispute resolution already routinely use video conferencing and, indeed, video testimony can be and is often used in criminal cases in Canadian courts, even where credibility is a central issue and the stakes are high. In Paiva v. Corpening, 2012, ONCJ 88, 9 R.F.L. (7th) 203, the court observed, at para. 31:

It is worth noting that there are other criminal cases decided under s. 714.1 [of the Criminal Code] in which video conference evidence was permitted because of a complainant’s personal circumstances, including the cost of travelling to trial. These were cases of domestic assault and sexual assault in which assessment of the credibility of the complainant was crucial; judges in those cases found that they were not hampered in any substantial way in making credibility assessments.

[23] The suitability of video conferencing in cases where credibility needs to be assessed was also commented on in R. v. Allen, [2007] O.J. No. 1353 (O.C.J.), at para 26:

The defence further submits that it will be more difficult to get a sense of the witness’s credibility without him being present. I don’t think that can be assumed to be so. In some respects there are advantages in that the court will presumably have the benefit of a full face on-view of the witness as opposed to the profile seen in court. The testimony will be taped and be replayed at will. It is worth noting that video-linked evidence of children is routinely received in our courts and the credibility assessments are not hampered by the procedure. Further, some of the cases….dealing with s. 714.1 have commented that video-linked evidence has been found to be superior in these respects: see for example [R. v. Hannen, 2000 Y.T.T.C. 502, [2000] Y.J. No. 6 (Terr. Ct.) at paras.] 315, 327.

[24] Although none of the proposed video conference witnesses are peripheral, in the sense of being fringe witnesses, their attendance in court can not be compelled because of their residence outside Canada.

[25] While each request will necessarily turn on its own facts and circumstances, provided that there is a reasonable explanation for a witness not being able to attend in court to give evidence, and provided also that the technology is available and can readily be deployed, a court should be reluctant to deprive itself and the parties of the opportunity to receive the testimony of a non-party witness through video conferencing.

[26] The widespread availability of video conferencing services and technologies is such that the lack of precise details of the where, when and how of the CBC defendants’ request is not a

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reason not to approve their request in principle. However, all costs associated with presenting the evidence of these witnesses by video-conference should, in the first instance, be borne by the appropriate party or parties (in this case the CBC defendants).

[27] Nor are the CBC defendants’ proposals for preparing document bundles and dealing with additional documents during the course of oral testimony unreasonable, although I have included a term relating to documents which, for legitimate tactical reasons, cross-examining counsel may not want included in the bundle given to the witness in advance.

[28] Accordingly, the CBC defendants are given leave to adduce trial evidence by video conference or similar technologies in respect of the five witnesses they had identified, subject to the following terms:

(a) All reasonable efforts should first be made to secure the personal attendance of the witness.

(b) Where, despite (a) a witness cannot or will not attend in person to give evidence at trial, not less than three full court days before the day that it is intended to call the witness, the court should be provided, in writing, with the reason(s) for the unavailability of the witness to attend in person. The court reserves the right to determine whether the reasons so given are acceptable, and hence, whether to permit that witness to testify by video conference.

(c) The proposed arrangements for the video conference (or similar) must be satisfactory to the court.

(d) All costs associated with the video conference or similar technologies being used will be borne by the CBC defendants.

(e) No less than two full court days before the witness is scheduled to testify, the parties shall, subject to (f) below, identify and notify to all other parties all documents which he/she/it wishes to have included in a document bundle to be made available, electronically, on paper or both, to the witness. The CBC shall be responsible for assembling the witness bundles and making them available to the witness.

(f) Where a cross-examining party determines that the procedure in (e) may lessen the chances of the witness giving a contemporaneous or unvarnished answer in respect of a particular document, or where the need to refer to a document only arises from the trial testimony of the witness, a document may be put to the witness that is not in the bundle. The CBC shall ensure that arrangements are in place for such additional documents to be readily accessible by the witness (electronically or otherwise).

(g) Such other terms as the court may deem appropriate.

The Video Conference Experience

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Page: 7

[29] In the end, as already noted, only two witnesses gave evidence by video link: Dr. Susan Shenkin, a senior clinical lecturer at Edinburgh University and a practising physician, and Dr. Saul Sternberg, a professor in the Department of Psychology at the University of Pennsylvania. Dr. Shenkin testified for approximately 90 minutes. Dr. Sternberg’s testimony took up the best part of a day.

[30] No apparent difficulties were encountered by the parties in identifying documents which were likely to be put to these witnesses. Each of the witnesses was provided with a bundle of documents sent by courier and available to the witness as the witness testified.

[31] Furthermore, because the trial was an electronic trial, in that virtually all of the documents referred to at trial were stored on a database managed by the registrar and capable of being displayed on video screens in the courtroom, it was possible, when referring to a document (whether it was a document that the witness had a paper copy of in the bundle, or a document that was not in the bundle and was being shown to the witness by counsel) for the document to be displayed on the screens both in the courtroom and in the room in which the witness was present. In the courtroom what was seen was a split screen, with one frame displaying the document and the other frame showing the live witness.

[32] The picture and sound quality were excellent. Counsel and the court registrar were able to efficiently manage the process. The flow of testimony was not markedly less spontaneous than it would have been if the witness had been present in court. The entire experience was, from the perspective of this trial judge, entirely satisfactory. The fears expressed by the plaintiff in opposing the CBC’s motion were, in my view, entirely unfounded.

Costs

[33] The costs of this motion will be dealt with at the same time as the costs of the now completed trial.

Graeme Mew J.

Released: 31 August 2015

Corrections made: 1 September 2015: The omission of counsel’s name was corrected; 2 September 2015: Paragraph 22 the word “mistakes” replaced by “the stakes”; the work “pampered” replaced by “hampered”.

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CITATION: Chandra v. CBC, 2015 ONSC 5385

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RANJIT KUMAR CHANDRA

Plaintiff

– and – CANADIAN BROADCASTING CORPORATION, CHRIS O’NEILL-YATES, CATHERINE MCISAACS, LYNN BURGESS, JACK STRAWBRIDGE and MEMORIAL UNIVERSITY OF NEWFOUNDLAND

Defendants

REASONS FOR JUDGMENT

Mew J.

Released: 31 August 2015

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IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Slaughter v. Sluys, 2010 BCSC 1576

Date: 20101105 Docket: 38698

Registry: Vernon

Between:

Griffith J. Slaughter Plaintiff

And

Ignatius Sebastianus Sluys Defendant

Before: The Honourable Madam Justice Beames

Reasons for Judgment

Counsel for the Plaintiff: G.P. Weatherill, Q.C.P.A. Dyck

Counsel for the Defendant: S.B. StewartA.P. Lam

Place and Date of Hearing: Vernon, B.C.October 26, 2010

Place and Date of Judgment: Vernon, B.C.November 5, 2010

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Slaughter v. Sluys Page 2

[1] In this personal injury case, the plaintiff applies for leave to have seven lay

witnesses and four expert witnesses testify by videoconference. The defendant says

that to have such a large portion of crucial evidence in this case heard by

videoconference offends the principles of the new Rules and offends the principles

of fundamental justice.

[2] By way of background, the plaintiff was injured in a motor vehicle accident

which occurred on December 17, 2004, in Vernon, B.C. He commenced this action

on May 2, 2006, claiming damages for his pecuniary and non-pecuniary losses

arising from the injuries he had suffered, including a traumatic brain injury, a

fractured arm, injury to his neck, and chronic pain.

[3] By court order, the issue of liability was severed, and it was heard by another

judge. The remaining issue is the assessment of damages, which is scheduled to be

tried in Vernon commencing April 11, 2011 for six weeks. I have been assigned the

case management judge.

[4] I am told that after the accident took place, the plaintiff returned to Ontario. He

had only been in Vernon for a short time before the accident, and all of his family

and community support were in and around Pembrooke, Ontario. As a result, many

of the lay witnesses he proposes to call with respect to the quantum assessment are

from Ontario. His treating physicians are also based in Ontario, as are the doctors

retained for the purpose of giving opinion evidence at trial, save and except one

doctor who practices in Vancouver.

[5] I have conducted two case management conferences since I was assigned

the case management of this matter. Counsel have provided me with lists of

witnesses, a very brief description of the nature of the relationship between the

plaintiff and lay witnesses, those witnesses’ places of residence, and the time

estimates for direct and cross-examination of each witness.

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[6] The witnesses the plaintiff seeks leave to have testify via videoconference,

with their relationship, place of residence, and most recent time estimates, are as

follows:

Name Relationship Place of Residence Direct Cross

Shannon Slaughter

sister and co-worker

Pembrooke, Ontario

1 hour 1 hour

Jim Lapointe

uncle and employer

Pembrooke, Ontario

1 hour 2 hours

Mike Douglas

uncle and employer

Pembrooke, Ontario

1 hour 1 hour

Mike Willems

family friend Dryden, Ontario

1 hour 1 hour

Frank Durant

family friend Pembrooke, Ontario

½ hour ½ hour

Keith Banks

co-worker Pembrooke, Ontario

½ hour 1 hour

Doug Moore

co-worker Pembrooke, Ontario

½ hour 1 hour

The experts in issue are:

Name Specialization Location Direct Cross

Dr. Marshall physiatrist, treating doctor

Ottawa, Ontario

1 hour 2 hours

Dr. Berry neurologist Toronto, Ontario

½ hour 3 hours

Dr. Scher neuropsychologist Toronto, Ontario

1 hour 4 hours

Dr. Travlos physiatrist Vancouver, BC

½ hour 2 hours

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[7] The plaintiff says that having the proposed witnesses testify by

videoconference would save approximately $50,000; would markedly reduce the

inconvenience experienced by the witnesses in testifying at the trial; and would be in

keeping with this court’s new Rules which promote efficiency and proportionality.

Further, the plaintiff says both the plaintiff’s counsel and defence counsel have had

an opportunity to interview the lay witnesses in issue, who are the “not so important”

and short witnesses, all of whom live at some distance. He relies on s. 73(2) of the

Evidence Act, which provides that the court may allow a witness to testify by

videoconference unless the court is satisfied that receiving the evidence that way

would be contrary to the fundamental principles of justice. Section 73(3) sets out the

factors the court may consider, if one party objects, as follows:


(b) the costs that would be incurred if the witness had to be physically present;



It is the plaintiff’s submission that these factors all weigh in favour of the witnesses in

issue being permitted to testify via videoconference.

[8] The defendant says that s. 73(2) is intended to apply in relatively rare

circumstances, and to individual or a limited number of witnesses. He says that there

is no authority for what the plaintiff proposes, namely to call 11 of his 28 witnesses

via videoconference, over an estimated 22 hours. He says that five of the lay

witnesses, whose evidence may bear on the largest component of the plaintiff’s

claim, his loss of opportunity to earn income, are in fact key witnesses, rather than

“not so important” witnesses. The defendant says that credibility of the witnesses is

a central issue, and that credibility cannot adequately be assessed if the witnesses

are called by way of videoconference rather than being physically present in the

courtroom. It is the defendant’s position that the cost of having the witnesses attend

in Vernon for the trial pales in comparison to the multi-million dollar claim being

advanced by the plaintiff. It is his position that it would be fundamentally unfair to

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limit the defendant’s counsel’s ability to have a full and complete cross-examination

of the witnesses, which he says can only occur if the witnesses are physically

present in the courtroom. Of particular concern to the defendant are the plaintiff’s

expert witnesses who were specifically retained for litigation purposes as opposed to

being treating physicians. Those three witnesses are Dr. Berry and Dr. Scher, both

of whom practice in Ontario, and Dr. Travlos, who practices in Vancouver. The

defendant asserts all three are important witnesses. They were retained after the

action had been commenced in Vernon, British Columbia, which, the defendant

points out, was the plaintiff’s choice. The defendant proposes, as an alternative to

the use of videoconferencing, that the evidence of the witnesses in Ontario be taken

by commission from a location in Ontario, with plaintiff’s counsel, defence, and the

court travelling to Ontario for that purpose.

[9] There is no question that the Rules of this province, enacted in 2010, have a

new or at least renewed, emphasis on the just, speedy and inexpensive

determination of a proceeding on its merits, which involves a consideration of

proportionality. There is also no question that various forms of technology have been

employed on a more frequent basis recently, in all court proceedings, including trials.

Advances have been made in the quality of communication via videoconferencing,

which has all but eliminated the problems often associated with videoconferencing in

the early days of its use, which involved time delays in the transmission and which in

turn frequently resulted in counsel and witnesses talking over each other and which

made for a less than satisfactory method of conducting both direct or cross

examination. I have, in the recent past, found videoconferencing to be an acceptable

and satisfactory method of receiving evidence from a witness, which has not

inhibited assessment of credibility or the finding of facts. Although at first blush 22

hours worth of evidence via videoconference seems to be a significant amount of

time, it must be borne in mind that this trial is scheduled to last for six weeks, and

the proposed videoconferencing would consume but four days of the trial.

[10] I am not convinced, as submitted, that it would be “fundamentally unfair to the

defendant to deprive him of the opportunity to have witnesses properly cross

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examined” in person in the courtroom. Proper and full cross examination can take

place even when witnesses are appearing via videoconferencing. In my view, this is

particularly so where the witnesses are experts and where credibility per se is not in

issue and it is also the case where the evidence a witness may give is not overly

contentious. On the other hand, the plaintiff cannot, alone, determine which

witnesses are “important” and therefore should attend in person, and which

witnesses are “not so important” and therefore should be permitted to testify via

videoconferencing.

[11] I am also mindful of the submission that cross examination of the experts will

be difficult if conducted via videoconferencing, as a result of the number of

documents each witness may be asked to review. However, videoconferencing can

be accompanied by equipment at each end of the transmission that allows both the

expert and the examiner to view the same document. Further, the experts’ files are

required, under the new Rules, to be produced for review by opposing parties, on

request, at least 14 days before trial. File contents may be organized and numbered

in such a way as to minimize any concerns with respect to the use of documents

during direct or cross-examination via videoconferencing. I am satisfied that any

need to refer experts to documents can be satisfactorily accommodated and does

not mean that experts should not be permitted to testify via videoconferencing.

[12] Bearing all of the evidence and submissions of counsel in mind, and

attempting to balance the interests of the parties, I have concluded that the following

witnesses should be permitted to testify by videoconference: Mike Willems, Frank

Durant, Dr. Marshall, Dr. Stimac, Dr. Berry, Dr. Scher, and Dr. Travlos. With respect

to the remaining witnesses, each, as I understand the submissions, has something

to say about the plaintiff’s most significant claim, his loss of opportunity to earn

income, in that each either works with or supervises the plaintiff in his current

employment. Given their relationships to the plaintiff, the possibility that their

evidence will be very contentious, and that none of them have provided the court

with any indication that they will be personally inconvenienced or suffer hardship as

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a result of testifying in person in Vernon, they will be required to testify in person if

the plaintiff does indeed call their evidence at trial.

“A.J. Beames J.”

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IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Grahovac v. Hartfiel, 2015 BCSC 1142

Date: 20150507 Docket: M055147

Registry: Vancouver

Between:

Borislav Grahovac Plaintiff

And

Morgan K. Hartfiel and Susan Klinkhamer Defendants

Before: The Honourable Madam Justice S. Griffin

Corrected Judgment: The date of the judgment was corrected on the cover page on July 14, 2015

Oral Reasons for Judgment

Counsel for the Plaintiff: Jeff M. Naylor

Counsel for the Defendants: Avon M. Mersey, QC; Eric B. Clavier

Place and Date of Hearing: Vancouver, B.C. May 6, 2015

Place and Date of Judgment: Vancouver, B.C. May 7, 2015

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Grahovac v. Hartfiel Page 2

[1] THE COURT: The plaintiff has brought two applications in this case where

three actions have been ordered tried together. The three actions relate to three

motor vehicle accidents which the plaintiff claims caused him personal injuries. The

accidents occurred on February 5, 2004, Action Number M055147; December 4,

2004, Action Number M060492; and May 19, 2006, Action Number M071046.

[2] The background is that the plaintiff emigrated from the former Yugoslavia to

Canada prior to the accidents. He claims that at the time of the February 5, 2004,

accident, he was intending to move back to his country of origin to seek employment

as a law professor and businessman. His wage loss claim or loss of earning capacity

claim arises from alleged delays in realizing these plans and an ongoing diminished

earning capacity. He did become a law professor in 2008.

[3] The two applications are: first, for an order that the trial be heard without a

jury; and second, for an order that five witnesses who live in Europe, all relating to

the plaintiff’s loss of earning capacity claim, be called by the plaintiff to testify by

videoconference at trial.

[4] Both applications are opposed by counsel for all defendants, except the

defendant Mr. Perez. Counsel for the defendant Perez, who is a defendant in

Action Number M071046, has not appeared on these applications, stating he

takes no position on the application to set aside the jury notice, but opposes

the application regarding the witnesses testifying by videoconference.

[5] For ease of reference, I will refer to the defendants who appeared in

opposition to this application as “the defendants”, meant to exclude Mr. Perez.

[6] The trial is set to begin May 25, 2015, and is set for 15 days. No party has

submitted that the trial cannot be completed in the time allotted; however, the parties

assume in part that a trial judge will be assigned early and could hear and determine

motions regarding the admissibility of expert opinion evidence in advance of the start

of trial. I am not sure this scheduling will be possible this close to trial. Also, in my

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view, the parties underestimate the impact of using interpreters at trial for several

witnesses.

[7] After consulting with the parties and Supreme Court Scheduling at the close

of the parties’ submissions, I made a direction extending the trial for an additional

five days. This, in my view, will provide a cushion, should the trial take longer than

expected.

[8] Given the close proximity of trial, there is urgency to decide these

applications. I have had the benefit of helpful submissions and motion materials,

which I have read and considered.

[9] The legal principles set out in the notice of applications and the application

responses are not in dispute.

[10] My reasons for judgment will, of necessity, be quite brief.

Application for Trial Without a Jury

[11] Under the Supreme Court Civil Rules, BC Reg 168/2009, the governing rule

for the first application is R. 12-6(5)(a) which provides:

(5) Except in cases of defamation, false imprisonment and malicious prosecution, a party on whom a notice under subrule (3) has been served may apply

(a) within 7 days after service for an order that the trial or part of it be heard by the court without a jury on the ground that

(i) the issues require prolonged examination of documents or accounts or a scientific or local investigation that cannot be made conveniently with a jury,

(ii) the issues are of an intricate or complex character, or

(iii) the extra time and cost involved in requiring that the trial be heard by the court with a jury would be disproportionate to the amount involved in the action …

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[12] The reference to subrule (3) is to service of the notice requiring a trial by jury.

The parties did not raise any issue before me regarding the timing of the present

application.

[13] There is also no argument that a jury trial would be disproportionate to the

amount involved in the action. The plaintiff is advancing a claim for loss of earning

capacity of close to $3 million prior to discounting.

[14] Personal injury claims are often tried by jury, even those involving complex

medical issues.

[15] The background facts are that the plaintiff was in three separate car

accidents, each of which involved his vehicle being rear-ended. All of the defendants

but Mr. Perez are connected to the vehicles which collided with the rear of the

plaintiff’s vehicle. Mr. Perez was driving a vehicle which collided with the rear of

another vehicle, which then hit the rear of the plaintiff’s vehicle.

[16] The defendants say that the medical evidence indicates that the plaintiff’s

injuries from the first accident had resolved by the time of the second accident.

The plaintiff says that there will be evidence that the first accident made him more

vulnerable to the injuries subsequently incurred, and the implications of this will need

to be addressed in any jury charge.

[17] The nature of the injuries, which are soft-tissue injuries, are similar in relation

to all three accidents. There will be a contest at trial as to whether or not the injuries

are divisible as between the accidents.

[18] As for liability, the defendants pleaded that the plaintiff was contributorily

negligent. On questioning from the Court, these defendants have conceded that they

will not contend at trial that there is any contributory negligence. This is not a

concession made on behalf of Mr. Perez, and I am not aware of whether he pleads

contributory negligence. However, even if he does plead it, it is difficult to believe

this will actually be a serious issue at trial.

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[19] The plaintiff concedes that while there are some medical issues in the case,

there is likely to be less evidence of a scientific and medical nature than is seen in

some other cases where plaintiffs’ applications to set aside jury notices have been

unsuccessful.

[20] The defendants emphasize two such cases where the expert evidence

and issues were much more extensive than the present case, but the right to

a jury trial was upheld: Cliff v. Dahl, 2012 BCSC 276, and Rados v. Pannu,

2015 BCSC 453 [Rados].

[21] However, the plaintiff argues that because these actions involve three car

accidents spanning a long time period, the factual and legal issues of causation and

apportionment will be so complex that they cannot be conveniently determined by a

jury. On the pleadings and evidence, the issues include: whether the plaintiff’s

injuries in each accident are divisible; whether one accident was an intervening

cause of the plaintiff’s injuries; to what extent the “thin-skull” rule applies; and

apportionment of damages as between the various defendants in relation to the

three accidents.

[22] The plaintiff points out that in a parallel set of actions in which this plaintiff’s

wife was a plaintiff, Abrioux J. granted the wife’s application to have the action tried

without a jury: see Grahovac v. Hartfiel, (2 August 2014), Vancouver M055151

(B.C.S.C.) [Grahovac v. Hartfiel].

[23] Ms. Grahovac was in the same three accidents as was the plaintiff herein.

However, she was in three other relevant car accidents as well, one on May 2, 2011,

one on January 27, 2012, for which she had started actions in relation to her injuries,

and another one on March 1, 2009, in which she was at fault.

[24] After reviewing the applicable legal principles, at paras. 19-22 of Grahovac v. Hartfiel, Abrioux J. adopted the reasoning of Loo J. in Pajger v. Williams,

2003 BCSC 1542 [Pajger] at paras. 9-11, and set aside the jury notice.

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[25] The case of Pajger involved a plaintiff injured in three motor vehicle accidents

for which he advanced claims which were to be tried together. Liability was admitted

in two of the cases, but not the third. At the pre-trial conference, Loo J. noted at

para. 5:

[5] If that were the only issue that was to be resolved by a jury, I would agree that, although the issues require a scientific investigation, they could be dealt with by a jury. What makes this case more complicated, is that these three accidents aggravated a soft tissue injury that the plaintiff had sustained in two prior motor vehicle accidents, one in July of 1994 and the other in December of 1994. Fortunately, both counsel before me dealing with the three later accidents were counsel for the action involving the two earlier accidents, which I have been told was settled for a sum in excess of $250,000.

[26] The Court in Pajger also held at paras. 8-11:

[8] Based on this brief summary, the issues to be determined at trial not only involve liability in the second accident, meaning the second of the last three accidents, but whether the plaintiff was contributorily negligent, the state of his medical and psychological condition immediately before each of the last three accidents, his financial circumstances immediately before each of the last three accidents, and his current medical, psychological and financial status. The plaintiff is a plumber in a family-run business. Unlike a regularly employed person, his earnings fluctuate, and this makes the issue of financial loss all the more difficult.

[9] The cause of the plaintiff’s present medical and psychological condition requires resolution of a number of issues, including what injuries he sustained in the first accident, that is the first of the last three accidents, to what extent the first accident aggravated the injuries he sustained in the 1994 accidents, what injuries he suffered in the second of the last three accidents, whether that accident aggravated the injuries he suffered in the first accident, or the 1994 accident, what injuries he suffered in the third of the last three accidents, and whether that last accident aggravated the earlier accidents. [10] Next, the trier of fact would have to determine the proper apportionment of damages payable by the various defendants in respect of each of the accidents. Moreover, the jury will need to understand and apply the thin skull rule, the crumbling skull rule, and I accept that a jury would suffer a real disadvantage compared to a judge who has more time to analyse the evidence at the end of the trial than would a jury. I simply say that this case is unlike many of the cases Mr. Burgess referred to where the judge has refused to strike a jury notice. [11] For these combined reasons, that is, the issues being of an intricate and complex character, and the nature of the scientific investigation, I find that the plaintiff has met the burden, and I order the notice of trial by jury struck.

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[27] In Rados, in analyzing the appropriateness of a jury trial, Fitch J. helpfully

noted that issues may be considered complex if a judge would experience difficulty

in framing questions for the jury: at para. 34.

[28] The defendants submit that the issues in this case will not be too prolonged or

difficult to be conveniently assessed by a jury. When I asked for a sample as to

questions to be put to the jury at the end of the trial, the defendants’ counsel

prepared and read a list of fairly simple questions. Of course, the plaintiff did not

have the opportunity to compare that list to the defendants’ pleadings. In addition,

it did not seem entirely consistent with the approach taken in R. Dean Wilson et al, CIVJI: Civil Jury Instructions, loose-leaf (consulted in May 2015), 2d ed

(Vancouver: Continuing Legal Education Society of British Columbia, 2009).

[29] I note that Grahovac v. Hartfiel is distinguishable because there were

six accidents at issue. Likewise, Pajger is distinguishable because it required

considering injuries caused by five accidents. Also, Pajger involved active claims

of contributory negligence and one accident in which liability apparently was still

at issue.

[30] The impression I have, after hearing the parties’ submissions and reading the

motion materials, is that the key issues in this case at trial will have to do with factual

issues of whether the accidents caused the plaintiff to suffer injuries which interfered

with his earning capacity.

[31] I have concluded that the case is not too complex. Having considered the

facts and authorities, I am not persuaded that the plaintiff has met the onus he is

required to meet in order to take away the defendants’ fundamental right to have a

civil trial by jury.

[32] However, I reach this conclusion with an important caveat. I have relied to

some extent on the defendants’ position that the questions to be put to the jury will

be straightforward. While I have decided to dismiss the plaintiff’s application, I have

also decided to direct the defendants to provide, at the start of trial, the other parties

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and the trial judge with a draft list of questions the defendants submit ought to form

the framework for questions to be decided by the jury, along with submissions as to

how the interplay of issues as between the three accidents ought to be addressed in

a jury trial.

[33] Further, I wish to make it clear that the trial judge will retain his or her

discretion to reconsider the appropriateness of a jury trial, and I simply observe that

should the submissions not be helpful at the start of the trial, that may be taken into

account by the trial judge.

Evidence by Videoconference

[34] I now turn to the application for an order that five witnesses who reside

in Europe testify by means of videoconference.

[35] This application is based on ss. 73(2) and (3) of the Evidence Act, R.S.B.C. 1996, c. 124, which provide:

73 (2) A court may allow a witness to testify in a proceeding by means of closed circuit television or any other technology that allows the court, the parties and the witness to engage in simultaneous visual and oral communication, unless

(a) one of the parties satisfies the court that receiving the testimony in that manner would be contrary to the principles of fundamental justice, or

(b) the technology is not available for the proceeding. (3) If a party objects to the court receiving evidence in the manner described in subsection (2), the court may consider any of the following circumstances:


(b) the costs that would be incurred if the witness had to be physically present;



[36] As noted by the language of the statute, granting such an order is

discretionary, but there is an onus on the party opposing it to satisfy the court

that receiving the testimony in this manner would be contrary to the principles of

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fundamental justice. Also, the applicant must establish that the technology is

available for the proceeding.

[37] The plaintiff has filed evidence that identifies that the technology is available

for the proceeding, and I am satisfied that this part of the test is met. However, I note

that the courts do not have an abundance of videoconferencing equipment available

and so, if ordered, advance arrangements will have to be made with the court

technology staff for the technology to be available in the trial.

[38] Further, I note that it will be the plaintiff who will ultimately bear the risk that

the videoconferencing technology may not be available at trial due to technical

issues or other complications.

[39] There are several factors weighing in favour of granting the plaintiff’s

application.

[40] The first factor is the location of the witnesses. They all live and work in

Serbia or Bosnia-Herzegovina (“Bosnia”), and it would be extremely time-consuming

to bring them to Vancouver for a trial. The travel time is estimated to be

approximately 13 hours, including stopovers.

[41] A second factor requires looking at the personal circumstances of each

witness. Some have other employment commitments that do not allow them to take

such time away from work as would be required to attend the trial in person. Further,

each would require a Canadian visa to attend trial. Two of the witnesses provided

information to illustrate that their commitments are not minor. One witness says he

has government duties and university lectures as a professor. Another professor

says he has university lecture obligations and these run to the end of June. A third

witness simply says he will be in Europe and would like to testify by video link.

[42] As for the nature of the evidence, the plaintiff at the time of the first accident

was apparently living in Canada, working on a PhD in law. He alleges that it was

always his plan to return to Serbia and Bosnia where he had roots, property, and a

previous career. In order to prove the employment and economic opportunities in

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those countries which he says were lost to him due to his injuries, he must call

witnesses from those countries.

[43] Three witnesses are expected to give evidence regarding their direct

knowledge of the plaintiff and employment opportunities that would have been

available to him in Serbia or Bosnia, had he been healthy.

[44] The fourth and fifth witnesses are economists and financial consultants

retained by counsel for the plaintiff to provide opinion evidence relating to an

economic opportunity the plaintiff alleges was lost to him due to his injuries. This

apparently relates to the potential conversion of his home in Mostar, Bosnia, to a

hotel. These two expert witnesses say that they have too many other professional

commitments to be able to attend in person at trial.

[45] I must say that the evidence of all of these witnesses as to their inability to

travel to Vancouver for trial was somewhat thin. I will concede that one of the

problems may be that there are interpretation issues which impede the ease of

communication with counsel for the plaintiff. Regardless, as a matter of common

sense, it would no doubt be seriously inconvenient for these witnesses to travel to

Vancouver for the trial. Each witness would lose not just the one or two days

required for testimony. They would each also lose two days before and at least one

and perhaps two days after testifying due to the travel time between their homes and

Vancouver, and the need to accommodate some flexibility in the trial schedule.

[46] These witnesses are not in the control of the plaintiff and, based on the theory

of his claim that but for his injuries he would have enjoyed economic opportunities in

Serbia and Bosnia, I accept the plaintiff’s submission that they are critically important

to his case. I also accept the plaintiff’s submission that without an order permitting

the witnesses to testify by way of videoconferencing, he will not be able to call

comparable evidence.

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[47] The importance of the witnesses goes both ways here. It is a factor that the

defendants say should weigh in favour of requiring the witnesses to attend at trial.

I accept this.

[48] The plaintiff had the option of trying to obtain an order for a deposition of the

evidence of these witnesses before trial. However, it is quite likely, given the

defendants’ position that these witnesses should be available at trial, that the

defendants would have opposed a deposition in advance of trial.

[49] Further, the Rules provide that on an application for an order for a deposition,

the court must take into account the possibility and desirability of having the person

testify at trial by videoconferencing or other electronic means: R. 7-8(3)(d). As noted

by Master Bouck in Campbell v. McDougall, 2011 BCSC 1242 at paras. 47-48, this

is a relatively new addition to the depositions rule which takes into account the

benefits of modern technology.

[50] Another factor I must consider is the cost of getting these witnesses here,

which would be a significant cost, given that they will be travelling from Europe.

[51] The defendants point out that the cost of videoconferencing is also great, as it

will have to take place outside what would be normal business hours in the locations

of the witnesses. It may be that the videoconferencing cost would exceed the cost of

bringing the witnesses here by economy fare flights.

[52] I take the defendants’ point, but in my view it is not fair to require a witness to

fly in economy class for such a long flight. These witnesses would not be travelling

for a holiday. The most inexpensive business class fare would be appropriate to

allow the witnesses room to stretch out, to sleep, and to do work over the many

hours of the flight. On top of the cost of airfare would be hotel accommodation and

food, and any other fees charged by these witnesses for the lost time at work.

[53] I am satisfied that reasonable travel costs and costs for the witnesses’ time

would exceed the cost of videoconferencing. However, in my view, costs are not the

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most important factor; it really is the inconvenience to the witnesses in having to take

so much time to come to Vancouver to testify.

[54] There are other circumstances that are relevant as well. The defendants are

challenging the admissibility of the evidence being called from these witnesses.

The trial judge will be required to make rulings at trial regarding the admissibility

of the evidence. When a trial proceeds with a jury, there can be interruptions in the

evidence while submissions and then rulings are made in the absence of the jury.

Clearly, if the witnesses are required to travel to Vancouver, the travel time and

travel arrangements will have to be made in advance, taking into account the

possibility there could be delays in the trial and not knowing the result of any ruling

by the trial judge regarding admissibility of the evidence.

[55] There is a risk in this situation not only that a witness who has travelled a long

distance could be greatly inconvenienced, but also that considerable costs could be

thrown away. Counsel for the plaintiff has inquired about travel insurance, but has

been informed that none is available to cover the cost of a cancelled flight due to

court circumstances.

[56] The defendants say that they strongly challenge the evidence that these

witnesses are expected to give, and indeed they will challenge the credibility of the

three witnesses who know the plaintiff. They submit that it is important for the

witnesses to be in the courtroom, given that their evidence is so highly contentious.

As already noted, it is expected that these witnesses will be used to support the

plaintiff’s large claim for damages for loss of earning capacity. The defendants say

that it will be difficult to effectively cross-examine the witnesses by videoconference

because of the need to put documents to them, and because of the need for an

interpreter.

[57] I accept that cross-examination by videoconference may have somewhat less

of an impact than cross-examination in the courtroom, but I do not accept it will have

a significant impact on the jury’s ability to assess the evidence in this case. While the

defendants argue that the credibility of the witnesses will be challenged and that eye

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contact is important to do so, in the context of the nature of the evidence, I think it is

more likely that the reliability of their evidence will be challenged and this will turn

more on the content of the evidence.

[58] Notably, the fact that an interpreter would have to be used with these

witnesses, in any event, means that the pace of cross-examination and ability for

eye contact when questioning the witness was already going to be hindered, even

if the witnesses testified while present in the courtroom.

[59] As for an interpreter, the plaintiff’s plan is to have an interpreter present in

the courtroom in Vancouver, rather than with the witness in Europe. This makes the

most sense to me, as the interpreter will then be under this Court’s supervision.

[60] The plaintiff assures the Court that arrangements can be made in advance for

documents to be provided to the witnesses. The defendants have not provided me

with any details of the documents that might be involved in the testimony, other than

perhaps the witnesses’ own reports. I am satisfied that if counsel work together, the

documents that are going to be relevant can be provided to the witnesses in

advance and can be organized so that agreement is reached that what is seen by a

witness is a true copy of an exhibit in the courtroom. Whether what is provided is a

hard copy or an electronic image accessible in real time by computer, I will leave for

counsel to determine.

[61] It is my view that any risk to the defendants that their examination of the

witnesses will be hampered if done by videoconference is at least equalled by the

risk to the plaintiff that the evidence will not be as helpful to him as it might be if the

witnesses were in court. It surely has to be the case that, all things being equal, the

plaintiff would prefer to have his witnesses in court. If in court, the witnesses would

have the opportunity to look directly at the jury and there would then be a greater

chance that the sincerity of the evidence would resonate with the jury. This was

the point made by plaintiff’s counsel referring to eye contact in Miley v. Abulaban,

2014 BCSC 1905 at para. 16. Counsel for the defendants quite fairly conceded this

point in submissions.

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[62] But again, as I have already stated, in this case the plaintiff appears to have

no choice, given that the witnesses have indicated that they will not voluntarily travel

to Canada for the trial.

[63] Of course, a witness does not dictate to the court whether or not they will be

allowed to testify by videoconferencing. Nevertheless, when a procedure exists

under the law to accommodate witnesses who live a long distance away from the

trial, and this evidence will not be otherwise available to the plaintiff, it would seem to

me consistent with the principles of fundamental justice to attempt to accommodate

the witnesses.

[64] In Slaughter v. Sluys, 2010 BCSC 1576 [Slaughter], Beames J. allowed an

application to have seven lay witnesses and four expert witnesses testify at trial by

videoconferencing. The estimated time at trial to be taken up by these witnesses

was approximately four days. The Court noted that credibility could still be assessed

when a witness testifies by videoconference: at para. 9.

[65] Here, the estimated time of the witnesses’ evidence might be as much as

five days.

[66] The defendants point out that in Slaughter, the Court did not allow some

witnesses to testify by videoconference because of the possibility that their evidence

would be very contentious, going to the plaintiff’s most significant claim (loss of

earning capacity), and because each knew the plaintiff: at para. 12. As the

defendants point out, that is somewhat similar to the facts here.

[67] However, the fact distinguishing this latter aspect of Slaughter from the facts

of the present case was the lack of any evidence in Slaughter that those witnesses

would be personally inconvenienced or suffer hardship as a result of testifying in

person, as noted at para. 12. The witnesses would simply have to travel from

Northern Ontario to Vernon, BC. Here it is obviously a much greater inconvenience

to bring the witnesses from Serbia or Bosnia to Vancouver to testify at trial.

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[68] The far greater inconvenience to the witnesses in this case also distinguishes

the present circumstances from other cases relied on by the defendants, such as

Pack All Manufacturing Inc. v. Triad Plastics Inc. (2001), 29 C.P.C. (5th) 354

(Ont. S.C.J.), and Feeney v. Labatt, 2007 CanLII 1862 (Ont. S.C.J.).

[69] The defendants also question whether the witnesses would be as inclined to

tell the truth if testifying outside of this Court’s jurisdiction. I have no reason to be

concerned about that issue. Sections 73(6) and (7) of the Evidence Act provide:

73 (6) The court must require evidence under subsection (2) to be given

(a) under oath in accordance with the law of British Columbia,

(b) under oath in accordance with the law in the place in which the witness is physically present, or

(c) in another manner that demonstrates that the witness understands that he or she must tell the truth.

(7) When a witness outside of British Columbia gives evidence under subsection (2), the evidence is deemed to be given in British Columbia, and given under oath in accordance with the law of British Columbia, for the purposes of the laws relating to evidence, procedure, perjury and contempt of court.

[70] The biggest factor affecting the compulsion of a witness to tell the truth is

personal morality and a sense of duty, which is brought home to the witness by the

oath to tell the truth and by the formality of the courtroom setting. These factors will

still be at play when the witnesses testify by videoconferencing, although I accept

that the physical distance could potentially lessen the moral suasion of the

courtroom setting to some extent. Regardless, the challenge to the evidence of

these witnesses, in my view, is most likely to come through in the content of the

evidence as tested in cross-examination, rather than being a matter of oath-taking

or demeanour.

[71] As a balancing exercise, I am not persuaded that allowing these witnesses to

testify by videoconferencing will prejudice the defendants as much as not allowing

them to testify would seriously prejudice the plaintiff.

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[72] Considering all of the factors, I am not persuaded it would be contrary to

fundamental justice to allow the witnesses to testify by videoconference in the

circumstances of this case.

[73] I order that the plaintiff’s application that five named witnesses testify by

means of videoconferencing in the trial be granted, subject to certain conditions:

a) This order is subject to the overriding discretion of the trial judge.

b) This order is subject to counsel making arrangements with court staff for

videoconferencing equipment to be available at the necessary time in the

courtroom. It is also subject to the technical quality of the video

transmission being acceptable to the trial judge.

c) The parties must make advance arrangements to allow for the

presentation of documents to the witnesses at trial. If the parties cannot

agree on this process, they must appear at a trial management

conference for directions.

d) The witnesses’ testimony by videoconferencing will be at the times and

dates directed by the trial judge.

e) Prior to a witness testifying by video, the plaintiff must address the form of

oath-taking with the witness ...

[74] COUNSEL 1: I’m sorry, My Lady, what did you say there?

[75] THE COURT: The plaintiff must address the form of oath-taking.

[76] COUNSEL 1: Address the form, thank you.

[77] THE COURT: Address the form of oath-taking with the witness, opposing

counsel, and the trial judge.

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[78] The point here is to minimize any delay and confusion when the witness is

called, and to sort out any issues that the parties might have as to the proper oath in

advance.

[79] That concludes the directions. I also want to make a couple of

recommendations.

[80] I make a recommendation that the plaintiff make best efforts to do a test run

with the videoconferencing provider to check the technology and the setup of the

camera, taking into account that there will be an interpreter, prior to the first

videoconferencing witness testifying.

[81] Counsel, I am not sure how you do that. It could be helpful to have someone

from each side come here the morning of or late one day during the trial to do it. I

am not sure how far in advance you can do it with the use of the court equipment,

but I will let you try to figure that out. I also do not know what the person on the other

side will see: will they have a screen with two divisions or three divisions, for

example. But I want you to try to work that out together so that there is some

agreement. I want to avoid any excessive delays during the trial due to technology

issues.

[82] I will simply ask the defendants’ counsel to do their best to cooperate with the

plaintiff in that regard.

[DISCUSSION]

[83] THE COURT: All right, and costs?

[84] COUNSEL: I guess the issue of costs should come up.

[85] THE COURT: Yes, in my view costs should just be in the cause at this stage.

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[86] COUNSEL: For both parties?

[87] THE COURT: Yes.

“The Honourable Madam Justice S. Griffin”

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COURT FILE NO.: 99-CV-8940

SUPERIOR COURT OF JUSTICE - ONTARIO RE: PACK ALL MANUFACTURING INC. v. TRIAD PLASTICS INC. BEFORE: Rutherford J. COUNSEL: Tara M. Sweeney, for the Plaintiff, Applicant André Ducasse, for the Defendant, Respondent.

E N D O R S E M E N T [1] Plaintiff seeks an order under Rule 1.08(3) of the Rules of Civil Procedure authorizing the presentation of the evidence of a witness, Renée Copley, at the forthcoming trial by live video-conference. The reasons for seeking to take her evidence by live video-conference is said to be the convenience of the witness, who works and resides in the State of Virginia, and to avoid incurring direct travel costs of over $2000 that would be required to bring the witness to Ottawa. The witness is not compellable by Ontario subpoena and is not an employee of the plaintiff company. Her evidence in chief is estimated at about one-half hour. A “will say” statement of her expected evidence has been given to defendant’s counsel. There is no evidence in the record relating to whether the witness is willing to travel to Ottawa and submit to the jurisdiction of the Ontario Superior Court as a witness.

[2] Counsel for the defendant, who has consented to the evidence of certain other witnesses for the plaintiff being produced by video-conference, objects to the order sought on the basis that the testimony of this witness is expected to be at odds with that of an important witness for the defendant and counsel urges that an assessment of the credibility of the Virginia witness will be very important and for that reason she should be produced, live, before the trial judge. The case is not to be tried by jury.

[3] I have been given the “will say” statements of the other witnesses whose evidence will be taken in video-conference and have also read the “will say” of the witness in question.

[4] There is no doubt that the taking of evidence via video-conference can be effective and efficient and can reduce expenses and convenience witnesses. Statements to that effect are found in such cases as Guarantee Co. of North America v. Nuytten [1997] O.J. No. 2986 (Master Polika); and in Wright v. Wasilewski (2001), 52 O.R. (3d) 410.

[5] Ontario Rule 1.08(5) set out a list of factors to be considered in determining whether a witness’ evidence should be permitted to be taken by video-conference. They are:

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Factors to Consider (5) In deciding whether to permit or to direct a telephone or video conference, the court shall consider, (a) the general principle that evidence and argument should be presented orally in open court; (b) the importance of the evidence to the determination of the issues in the case; (c) the effect of the telephone or video conference on the court’s ability to make findings, including

determinations about the credibility of witnesses; (d) the importance in the circumstances of the case of observing the demeanour of a witness; (e) whether a party, witness or solicitor for a party is unable to attend because of infirmity, illness or any other

reason; (f) the balance of convenience between the party wishing the telephone or video conference and the party or

parties opposing; and

(g) any other relevant matter. O. Reg. 288/99, s. 2.

[6] In my experience, a trial judge can see, hear and evaluate a witness’ testimony very well, assuming the video-conference arrangements are good. Seeing the witness, full face on in colour and live in a conference facility is arguably as good or better than seeing the same witness obliquely from one side as is the case in our traditional courtrooms here in the Ottawa Court House. The demeanor of the witness can be observed, although perhaps not the full body, but then, sitting in a witness box is not significantly better in this regard. Indeed, I often wonder whether too much isn’t made of the possible ability to assess the credibility of a witness from the way a witness appears while giving evidence. Doubtless there are “body language” clues which, if properly interpreted, may add to the totality of one’s human judgment as to the credibility of an account given by a witness. The danger lies in misinterpreting such “body language,” taking nervousness for uncertainty or insincerity, for example, or shyness and hesitation for doubt. An apparent boldness or assertiveness may be mistaken for candour and knowledge while it may merely be a developed technique designed for persuasion. Much more important is how the substance of a witness’ evidence co-incides logically, or naturally, with what appears beyond dispute, either from proven facts or deduced likelihood. I am not at all certain that much weight can or should be placed on the advantage a trier of fact will derive from having a witness live and in person in the witness box as opposed to on a good quality, decent sized colour monitor in a video-conference. While perhaps a presumption of some benefit goes to the live, in person appearance, it is arguable that some witnesses may perform more capably and feel under less pressure in a local video-conference with fewer strangers present and no journeying to be done.

[7] Mr. Ducasse argued that counsel cross-examining is not engaged in the same way as is possible with the witness live, in the same room, with the result that the ability to effectively cross-examine is impaired. I grant that this may indeed be so although whether or to what degree the effectiveness of any particular cross-examiner might be impaired is very difficult to measure. It probably would depend upon the witnesses and the individual circumstances of the case.

[8] As to the importance of this witness’ evidence, I would say that while not perhaps “critical,” it is certainly very important to the plaintiff’s case. Her anticipated evidence relates to the properties of the manufactured product alleged to have been defective in the transaction in

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issue in the case, and of the defendant’s knowledge of that, and it will certainly be adverse to the defendant’s defence.

[9] Counsel for the defendant raised other difficulties that may be encountered with a witness in another jurisdiction on a video-conference. He questioned whether she would be bound by an oath that is enforceable and how the court could ensure that she answer all proper questions. Those I do not see as particularly problematic. In R. v. Dix (1998), 16 C.R. (5th) 157 (Alta. Q.B.) Costigan J. noted that the video-conference witness in New York could be placed under oath on site in a manner that permitted New York sanctions to be applied in the event of perjury, and that failure of the witness to answer proper questions was a matter the trial judge could remedy in terms of either discontinuing the procedure or assigning appropriately less weight to the witness’ evidence. Indeed, it seems to me that an order for evidence by video-conference made at the pre-trial stage always leaves ample scope to the trial judge to control proceedings at trial in such a way as to ensure that the trial is a fair one and that justice is properly rendered. It should be noted that Rule 1.08(4) expressly provides that the trial judge …may set aside or vary and order…for the taking of evidence by video-conference under (3).

[8] There are other practical problems that would have to be overcome in preparing to take trial evidence by video-conference. The presentation to the witness of exhibits or documents by counsel examining in chief or cross-examining would have to be thought out in advance, and copies of the necessary documents readied for placing before the witness. As observed by Lee J. in Edmonton (City) v. Lovat Tunnel Equipment Inc. (2000), 79 Alta. L.R. (3d) 262 (Alta. Q.B.), the availability of fax facilities would probably be important as part of the logistics that the party seeking to use video-conferencing might be ordered to arrange.

[9] While there is much to be said for using the modern technology available and taking evidence by video-conference, it is not a manner of taking evidence available to parties as matter of right. Unless consented to by the opposite party, the Court must balance the relevant factors and determine whether the advantages of using video-conferencing outweigh the possible prejudice that might arise. In this case the balancing of interests is difficult. I’d say it is a close call. Inclined as I am to side with efficiency and the saving of time and cost, I am not persuaded by the plaintiff’s application that there is enough to be gained to overcome the conventional rule that evidence be given by a witness, in person, in court, and the contention by counsel for the defendant that cross-examination of this important witness whose credibility is important to the trial may be rendered less effective. Here, since the defendant has consented to video-conference evidence for certain other witnesses, the additional expense is limited to only one witness. Perhaps most importantly, there is no evidence that the witness in question is unable or unwilling for any reason to come to Ottawa and testify of her own volition, assuming all her expenses are paid. Her evidence is important and the cost of bringing her is not all that great in relation to the amount of money at issue in the trial, which I am advised is somewhere in the range of $80,000 to $105,000, including claims by both the defendant and the plaintiff.

[10] If the plaintiff brings the witness to Canada and she testifies, and if the plaintiff is successful at trial and the trial judge is of the view that the evidence could equally well have been presented by video-conference, it would certainly be open to the plaintiff to seek to have

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the fact that some cost savings and conveniencing of a witness was precluded by the defendant’s opposition to this motion addressed appropriately in any award as to costs.

[11] For these reasons, the plaintiff’s motion is dismissed. Costs of the motion are left to the trial judge.

Order accordingly.

___________________________ Rutherford J.

DATE Monday October 1, 2001 2001

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COURT FILE NO.: 99-CV-8940

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: PACK ALL MANUFACTURING

INC. v. TRIAD PLASTICS INC. BEFORE: Rutherford J COUNSEL: Tara M. Sweeney, for the Plaintiff,

Applicant André Ducasse, for the Defendant,

Respondent.

ENDORSEMENT

Rutherford J.

DATE: Monday October 1, 2001

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CITATION: Sacks v. Ross, 2015 ONSC 6432 COURT FILE NO.: CV-10-401690

DATE: 20151019

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jordan Sacks, Lisa Sacks, Ryan Sacks, by his Litigation Guardian Lisa Sacks, Alexis Sacks, by her Litigation Guardian Lisa Sacks, Emma Sacks, by her Litigation Guardian Lisa Sacks, Michael Sacks and Annette Sacks, Plaintiffs

AND:

Theodore Ross, Aliyah Kanji, Anna Maureen Bendzsak, Jeffrey Singer, John Doe I, John Doe II, Pamela Raye-Ilogu, X. Li, T. Hollowitch, Jane Doe I, Jane Doe II and Sunnybrook Health Sciences Centre, Defendants

BEFORE: Madam Justice Darla A. Wilson

COUNSEL: Duncan Embury & Daniela M. Pacheco, Counsel for the Plaintiffs

Frank J. McLaughlin & Dorothy E. Charach, Counsel for the Defendants

HEARD: October 15, 2015

ENDORSEMENT

[1] The Plaintiff, Jordan Sacks, brings this action in negligence against the Defendants arising from his treatment while at the defendant hospital in May, 2008. It is alleged that the Plaintiff underwent a routine abdominal surgery by Dr. Ross and in the post-operative period, he developed an anastomotic leak which was not diagnosed in a timely fashion. As a result, it is alleged, he developed severe septic shock, resulting in organ failure and gangrene which led to amputation of his legs and fingers and dozens of skin grafts. Liability is denied by the defendants; but it is not disputed that Mr. Sacks suffered very serious, life threatening injuries.

[2] This action is set to proceed to trial with a jury before me on October 26 with an estimated trial time of 8 weeks. Damages have recently been agreed upon although I am not privy to the quantum of the damage assessment.

[3] The Defendant physicians bring this motion for an order permitting Dr. Kanji to provide her trial evidence by video-conference. At the time of the events giving rise to this claim, Dr. Kanji was a first year resident at Sunnybrook in the surgery rotation. Her involvement with the

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Plaintiff’s care occurred on one occasion, May 16, 2008, at approximately 4:40 in the afternoon. It is not disputed that she assessed the Plaintiff and ordered blood work. She went off shift somewhere around 6:00 that evening. She did not make a note in the chart of her assessment of Mr. Sacks on May 16, 2008.

[4] There is an issue about the timing of the blood work ordered by Dr. Kanji. She ordered it “now” and it was entered into the computer as “stat” which is a more urgent order. The timing of the order is important because the Plaintiff argues that the results of the blood work, specifically the elevated white blood cell count, were indicative of a leak, which ought to have been recognized by the various health care providers as a leak and the failure to do so constitutes negligence.

[5] Dr. Kanji is now practicing in Edmonton, Alberta and is on maternity leave with her son, who was born in August, 2015. She has filed a letter dated October 8, 2015 [tab A of motion record] which states that she is nursing her son and he would have to accompany her to Toronto for her testimony. She states, “Attending in person in Toronto to testify would cause me considerable expense, inconvenience and would be quite disruptive to my family. I would be very grateful if my personal circumstances could be accommodated by permitting me to testify by videoconferencing.”

[6] Counsel for the Defendants submits that the role of Dr. Kanji in the larger scheme of things is minor; she assessed Mr. Sacks on one occasion only and was not working when the blood work results were available so it cannot be argued that she should have followed up on them. None of the experts retained by the Plaintiffs opine that Dr. Kanji fell below the standard of care so her evidence is more akin to that of a fact witness as opposed to a party. Mr. McLaughlin relies on the principles expressed in Hryniak v.Maudlin, 2014 SCC 7, arguing there has been a culture shift and the court must look at what is the most efficient, economical way to proceed and in this case, it is not necessary that Dr. Kanji attend court to give her evidence as there is no prejudice to the Plaintiff if she is permitted to do so by video conferencing.

[7] The Plaintiff objects to Dr. Kanji providing her evidence by video, submitting that she is a defendant in this lawsuit, her credibility is in issue and her evidence is important. Further, it is argued, the Plaintiff has the right to have Dr. Kanji present in court to answer for her actions; this is a fundamental right of the Plaintiff and he is entitled to a fair trial.

Analysis

[8] Rule 1.08 of the Rules of Civil Procedure is the applicable rule for the relief sought on this motion. It provides a list of factors for the court to consider when making the determination. They 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. The rule notes that there is a general principle that evidence should be presented orally in open court.

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[9] I agree with the submission of the defence that, pursuant to Hryniak, supra, “the legal system is now working within a new paradigm: the conventional trial is no longer the default procedure for resolving litigation disputes.” Whether the use of videoconferencing ought to be used is an exercise of discretion of the court based on the facts of a particular case.

[10] In the case before me, I accept that Dr. Kanji plays a minor role in the overall scheme of things. I also accept that her evidence will be brief in all likelihood and that her present circumstances make it inconvenient for her to attend trial in Toronto.

[11] I found the case of Chandra v. Canadian Broadcasting Corp. [2015] O.J. No. 4541 to be helpful in articulating the considerations of the court when making such an order. In that case, the defence sought to have the evidence of 5 witnesses, one of whom was an expert witness, taken by videoconference at trial because 4 of them resided in the United Kingdom and it would be costly and difficult for them to attend court in Toronto. Justice Mew stated, “While each request will necessarily turn on its own facts and circumstances, provided that there is a reasonable explanation for a witness not being able to attend in court to give evidence, and provided also that the technology is available and can readily be deployed, a court should be reluctant to deprive itself and the parties of the opportunity to receive the testimony of a non-party witness through video conferencing.” I agree with this view; further, it is often more efficient and cost effective to have evidence of certain witnesses done by videoconferencing and counsel should direct their minds to this option in the appropriate cases. I also take note of the fact that in the cases where the court permitted a witness’s evidence to be done by videoconferencing, the results were entirely satisfactory and the concerns about the quality of the evidence or ability to scrutinize the witness were unfounded.

[12] In the case before me, Dr. Kanji is not simply a witness; she is a defendant and this is an important distinction, in my view. She has been sued by the Plaintiff and he intends to argue at trial that she is, in part, responsible for his injuries. While her role in the events at issue may be small, the Plaintiff asserts it was with the assessment of Dr. Kanji on May 16 that the negligence of Mr. Sacks’s treating health care practitioners commenced. 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.

[13] I am also mindful of the reason behind the request of Dr. Kanji to have her evidence taken by video. Her reasons are not particularly compelling; it is not a case where she cannot attend because she herself is infirm or a close family member is ill or even where the demands of her job make it close to impossible for her to get away. I am sympathetic to the fact that she is a mother with 2 young children; but taking a flight to Toronto to testify in a trial where she is a defendant is not what I would describe as a hardship; an inconvenience perhaps, but not a hardship. In my opinion, fairness and the right to due process dictates that Dr. Kanji must attend in court to give her evidence.

2015

ON

SC 6

432

(Can

LII)

91

- Page 4 -

Conclusion

[14] The motion by the Defendants is dismissed.

D.A. Wilson J.

Date: October 19, 2015

2015

ON

SC 6

432

(Can

LII)

92

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