5 total
Court permits foreign witnesses to testify at trial by video conference.
The defendants brought a pre‑trial motion seeking permission to call several non‑party witnesses residing outside Canada to testify at trial by video conference.
The plaintiff opposed the request, arguing that credibility assessment, document handling, and logistical issues required in‑person testimony.
Applying Rule 1.08 of the Rules of Civil Procedure and the proportionality principles in Rule 1.04, the court held that modern video conferencing technology can permit effective credibility assessment and efficient presentation of evidence.
Given the witnesses’ overseas residence, professional obligations, and the disproportionate cost and difficulty of travel, the court granted leave for their testimony to be given by video conference subject to procedural conditions.
Privacy claim against media may proceed where investigative conduct could constitute intrusion upon seclusion.
During a civil jury trial for defamation arising from a televised investigative documentary, the media defendants sought a ruling that the plaintiff’s claim for invasion of privacy should not be put to the jury.
The defendants argued that the Personal Information Protection and Electronic Documents Act constituted a complete legislative scheme precluding a common law privacy claim and that the tort of intrusion upon seclusion did not apply to journalistic publication.
The court held that PIPEDA does not oust the development of common law privacy claims and that media defendants are not categorically immune from liability for intrusion upon seclusion.
However, the scope of such claims is limited where journalistic activity engages freedom of expression and established defamation defences.
The court concluded that a properly instructed jury could potentially find an unlawful intrusion and therefore allowed the privacy claim to proceed to the jury with limiting instructions.
Late Rule 21 motion refused and trial procedure left unchanged.
The plaintiff brought a motion shortly before trial seeking a determination under Rule 21.01(1)(a) of the Rules of Civil Procedure that a televised documentary was prima facie defamatory, along with directions regarding the order of evidence and a proposed bifurcation of liability and damages.
The court held that although questions about defamatory meaning can sometimes be determined before trial, such motions must be brought promptly under Rule 21.02.
Because the action had been underway for nine years and the motion was brought only weeks before trial, the request for a Rule 21 determination was refused.
The court also declined to modify the usual order of presentation of evidence in a jury trial or to bifurcate liability and damages absent party consent.
The plaintiff was granted leave to file a DVD of the documentary as part of the record.
Discovery transcript read-ins allowed as admissions under Rule 31.11.
During a civil jury trial, the defendants sought to read portions of the plaintiff’s examination for discovery into evidence pursuant to Rule 31.11(1) of the Rules of Civil Procedure.
The plaintiff objected, arguing that the rule in Browne v. Dunn required the defendants to first put the evidence to the plaintiff during cross‑examination at trial.
The court held that Rule 31.11 permits a party to read discovery evidence into the record as admissions provided it is not used for impeachment purposes.
Balancing fairness considerations and the trial context, including the presence of a jury, the court allowed the defendants to read in the proposed excerpts.
The court also indicated that the plaintiff could seek leave to provide reply evidence if the read‑ins raised issues that required a response.
Jury notice preserved pending trial despite anticipated complexity.
The moving defendants sought to strike a jury notice in a defamation and invasion of privacy action arising from a broadcast alleging scientific fraud and financial deception.
The court reviewed the governing principles respecting the substantive right to a civil jury trial, including complexity, expert evidence, trial length, legal difficulty, and the availability of a wait-and-see approach.
Although the action involved voluminous documents, anticipated expert scientific evidence, and complex defamation issues, the court held that cogent reasons had not yet been shown to displace the jury.
The preferable course was to permit the trial to begin and reconsider discharge of the jury only if the anticipated complexities materialized to a degree warranting intervention.
