A recent Superior Court decision canvassed the existing law pertaining to permitting witnesses to testify via telephone or video as opposed to in person, and appears to have set out a template of the procedure by which such requests should be made and, if granted, carried out.
A few days before the commencement of trial, the defendants requested that five of their witnesses be permitted to testify via video-conference at the trial. Four of these witnesses live in the U.K. and the other witness lives in the United States. The plaintiff opposed the request which led to argument. The court permitted the request and indicated that more detailed reasons would follow. The reasons that were released after the conclusion of trial are interesting to say the least.
The Court noted that Rule 1.08(1) of the Rules of Civil Procedure permits trial evidence by telephone or video conference. If the parties both do not consent to a witness giving evidence by telephone or video-conference then it is open to the court on motion or on its own initiative to make an order directing a telephone or video conference on such terms as are just.
The factors to be considered in exercising this discretion are set out in Rule 1.08(5) and are as follows:
(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.
After setting out the jurisdiction to make such an order and the enumerated factors that are to be considered, the court went on to consider some recent policy considerations and in particular the 2014 Supreme Court of Canada decision of Hryniak v. Mauldin in which the SCC stated that the conventional trial no longer reflects the modern reality and needs to be readjusted.
After referencing the Hyrniak decision, the Superior Court went on to state
“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)….
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 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.”
The Court also noted that video evidence is routinely permitted not only in arbitrations and other private forms of dispute resolution, but also in criminal law proceedings and when evidence is given by children.
The Court concluded that “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.”
Perhaps most interesting is the procedural template that the court laid out. Given that the reasons were written and released after the conclusion of the trial, and the tone in which the template is presented, it appears to me to be an attempt to set out a practical guide for future cases:
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.