Misconduct During Remote Proceedings

As the legal system clumsily attempts to proceed along remotely during a pandemic, parties have tried their best to continue to move things along.

This approach was never entirely without risk, and a new decision by the Ontario Superior Court of Justice in Kaushal v. Vasudeva et al. highlights some of these risks. The motion was to strike out evidence based on misconduct and abuse of process during a remote cross-examination.

The cross-examination of the affidavit occurred via Zoom, with an interpreter present in the same room. There was also a court reporter present virtually.

Although the examining counsel inquired if the affiant was the only person in the room aside from the interpreter, it became clear that this was not the case. Justice Gilmore stated,

[17] After the examination was over, the Applicant remained on the Zoom meeting and noticed that a microphone and video camera on one or more of the devices used for the examination in Mr. Makori’s boardroom were still on. The Applicant could hear the voices of the Respondent’s wife (“Yogita”) and his son (“Rubal”). The Applicant recognized their voices as they all worked together in the Franchise restaurant. The court reporter and the interpreter were still on the link, so the Applicant continued to listen.

[18] The Applicant became alarmed when he heard some exchanges between Yogita and Rubal and the interpreter including the following:

a. The interpreter said, “When he’s asked a question you confused him. You should have prepared him properly about what your answers were going to be.”

b. Rubal said, “We got the papers out last night at 10:00 pm.”

c. The interpreter said, “When you are sitting there doing ‘this’ it was hard for him.”

d. Yogita said: “No, no he still answered well and gave excellent answers.”

[19] It was clear to the Applicant, from what Yogita was saying, that she had listened in on the examination. The Applicant recorded the exchanges on his cell phone and included the audio file in his original motion record.

Although counsel for the Affiant denied anyone else was in the room, the interpreter subsequently confirmed that the family members were indeed present during the cross-examination.

Justice Gilmore pointed out that the courts are aware of the possibility of mischief on a virtual examination, but it is not an area that our courts have fully explored,

[55] It is clear that the use of virtual examinations will continue by this Court and will become the norm for the foreseeable future. Even when the pandemic is behind us, the comfort level we have all gained with this form of technology is such that it is likely to continue to be a strong option for parties, particularly where a witness is out of country, out of province or has mobility or health issues.

[56] Given the inevitable future of virtual examinations in the legal system, it is up to the judiciary, as its gatekeepers, to ensure that this tool is not abused nor seen to undermine our globally admired legal system.

Striking an affidavit is a strong remedy reserved for the most egregious situations, and is allowed for under Rule 38.12,
with sanctions for improper conduct of examination under Rule 34.15. The purpose is to promote the integrity of the fact finding process, even if this process is conducted virtually.
Justice Gilmore applied Behn v. Moulton Contracting Ltd. and Canam Enterprises Inc. v. Coles, and found that the misconduct amounted to an abuse of process,
[65] …The Court must send a strong message that interference in the fact-finding process by abusing or taking advantage of a virtual examination will not be tolerated. In a broader sense, this type of misconduct strikes at the very heart of the integrity of the fact-finding process such that general deterrence is also a factor.
He also made some reference to the counsel that represented the affiant, but declined to make an order in that respect. Although the judiciary are the gatekeepers of the justice system, the lawyers are still the vanguard of its integrity.
Much of the abuse or mischief that can occur in proceeding online is only possible if counsel turn a blind eye. As the pandemic drags on longer than any of us expected, it makes it that much more important to uphold and retain those principles of integrity.

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