SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 11-50340
DATE HEARD: March 27, 2012
RE: Code Incorporated v. Independent High Electoral Commission
and Ghalib Alwiya
BEFORE: MASTER PIERRE E. ROGER
COUNSEL:
Peter N. Mantas/Alexandra Logvin for the Plaintiff/Moving Party
Email: pmantas@fasken.com
Ph: (613) 696-6886 Fax: (613) 230-6423
Alan Riddell for the Defendants/Responding Parties
Email: riddella@solowaywright.com
Ph: (613) 236-0111 Fax: (613) 238-8507
E N D O R S E M E N T
Background:
[ 1 ] The Plaintiff brings this motion seeking to compel two of the Defendants’ affiants, on affidavits filed on a motion, to attend for their cross-examination in Ottawa or, alternatively, in London, England. The motion in which these affidavits were filed is a forum non conveniens motion, brought by the Defendants. The Defendants have not attorned to the jurisdiction of this Court. I will refer to the upcoming motion challenging jurisdiction/forum as the “forum motion”.
[ 2 ] The Plaintiff is a Canadian corporation with head offices in Ottawa. Its business involves providing democratizing countries around the world with supplies and services required to conduct elections. The corporate Defendant is an organization with head offices in Baghdad, Iraq. It is tasked with administering elections in Iraq. The individual Defendant was a director of the corporate Defendant, also a resident of Baghdad.
[ 3 ] The action seeks recovery of the balance allegedly owing (US$810,102) under a US$9.3M contract between the parties for the purchase of electoral supplies.
[ 4 ] On the forum motion, the Defendants have delivered two affidavits: one from the Chairman of the Board of the corporate Defendant and the other from the Director of the Legal Department with the Ministry of Justice of the Republic of Iraq. Both affiants reside in the City of Baghdad, in the Republic of Iraq. The Plaintiff has filed two affidavits on the jurisdiction motion: one from its then CEO and the other by one of its VPs.
[ 5 ] The Plaintiff, during this motion, pointed to many disputed facts between the parties on matters relevant to the jurisdiction motion and reminded the Court of the importance of the upcoming cross-examinations. I note that this is usually the context when cross-examination is required but for purposes of this motion I have assumed that the evidence is important to the resolution of the forum motion.
[ 6 ] The Plaintiff argues, with supporting evidence, that Baghdad is a dangerous city with widespread risk of death and serious injuries to civilians, even within the Green zone (international military zone). Consequently, the Plaintiff is not prepared to allow any of its employees or any of its lawyers to travel to Baghdad.
[ 7 ] The Plaintiff suggested that the cross-examinations be conducted in either Ottawa or London, England, at the expense of the parties with the issue of costs to be resolved by the judicial officer hearing the forum motion. The Defendants, prior to this motion, proposed cross-examinations by video conference at the Defendants’ expense or, alternatively, if the Plaintiff insists that the affiants attend personally in Ottawa, then the Defendants suggested that the Plaintiff pay for the Defendants’ travel to Ottawa and required accommodation.
[ 8 ] Flights are available from Baghdad to either Ottawa or London. Travel and accommodation to Ottawa for the affiants could be in the range of about $10,000.00 and possibly up to about $30,000.00 if flying first class. However, during this motion, the Defendants were not insisting upon first class travel, indicating that they would have travelled to Ottawa if $10,000.00 had been paid towards their travel costs. Consequently, for purposes of evaluating, on this motion, what is just and convenient for both parties, I have assumed that the affiants would be travelling coach, for amounts not exceeding $10,000.00.
[ 9 ] Travel time, one way, depending upon the specific travel route selected, would appear to involve part of one day to travel from Baghdad to London and about one full day or slightly more to travel to Ottawa. For purposes of evaluating what is just and convenient for both parties, I have assumed part of one day for the affiants to travel to London and one full day for the affiants to travel to Ottawa, allowing for taxis and unavoidable wait at the airports (one way).
[ 10 ] The Defendants have not filed evidence of how they or the affiants would specifically be affected by an absence of about three to five days, if travel is ordered, but argue that the affiants are, from their respective position, high level employees and therefore busy individuals who would prefer to spend about half a day each to be cross-examined by video conference rather than three to five days if required to travel. It is admitted that the expected duration of the cross-examination is of about half a day per affiant (mostly on account of the usual delays involved with translation) or of about one day for both affiants.
[ 11 ] The Plaintiff raised many concerns with video conferencing, including the following factors to be considered by the Court when exercising its discretion:
a) Complexity and volume of facts involved in the cross-examination.
b) Logistics issues of video conferencing with language, time-zone, cultural and legal issues surrounding exhibits and private video conferencing in Iraq.
c) Potential intimidation of witnesses more difficult to address during video conferencing.
d) Defendants that are not impecunious and could pay for their travel with these costs dealt with at the motion. This to ensure that if the Plaintiff is successful at the motion it does not pay for costs in advance of the motion that it might not be able to collect from the Defendants (adding insult to injury considering the balance allegedly owing).
e) Convenience is not an issue as the Defendants’ affiants are or were prepared to travel to Ottawa if their costs were covered.
f) The Defendants have not provided evidence to support some of the allegations made in their factum (such as their crushing work load in Iraq and how it would negatively be impacted by their travelling to Ottawa) nor have they addressed how the video conferencing could actually be arranged in Iraq.
[ 12 ] I have carefully considered the above as well as all of the arguments raised by the Plaintiff in its factum and orally at the motion when assessing what is just and convenient for both parties in the circumstances of this matter.
[ 13 ] The Defendants argue that on a forum non conveniens motion, when the Defendants have not attorned to the jurisdiction and are in fact challenging the jurisdiction of the Court, the Court has no jurisdiction to order a foreign defendant to travel to Ontario. They referred to four cases on jurisdiction which I have considered. Further, they argue on this motion that cross-examination by video conferencing is the most efficient and effective method of conducting these cross-examinations and that it would not be just or convenient in this case to order them to travel to Ontario. They point to factors that the Court should consider, see paragraph 12 of their factum.
Disposition:
[ 14 ] Having read and considered the affidavits and materials of the parties, including their respective factum and authorities and having considered their oral submissions, I have concluded that what is just and convenient for both parties, in the circumstances of this case, is for the Plaintiff to conduct its cross-examination of the Defendants’ affiants by video conferencing or, alternatively, by other means agreed to by the parties. The set up for video conferencing in Iraq is to be by and initially at the cost of the Defendants with the details to be worked out by the parties and these arrangements for video conferencing are to be confirmed with the Plaintiff. The set up in Ottawa, including that of any required stenographer and interpreter, is to be by and initially at the cost of the Plaintiff. The issue of costs of the cross-examinations is to be decided by the judicial officer deciding the forum motion.
[ 15 ] An appointment may be scheduled before me if the parties cannot agree on the details. Similarly, considering that little evidence about the actual process of video conferencing with Iraq was presented on this motion, if it turns out, after reasonable efforts, that video conferencing cannot be arranged by the Defendants in Iraq, the parties may then, if they can’t agree on an alternative, schedule an appointment before me. However, initially and subject to any agreement of the parties, reasonable efforts are to be made for the cross-examinations of the Defendants’ affiants to be conducted by video conference.
[ 16 ] If the Defendants, having filed affidavits on the forum motion, fail to make their affiants available for cross-examinations, then the Plaintiff may seek appropriate redress at the return of the forum motion.
[ 17 ] Costs of this motion should follow the result and are hereby fixed, on a partial indemnity basis, in the all inclusive amount of $4,734.40, which is the amount sought on a partial indemnity basis by the Defendants. That amount is reasonable considering the factors outlined at Rule 57 and is to be paid by the Plaintiff to the Defendants within the next 30 days. I have not allowed costs on a substantial indemnity basis because the Plaintiff’s position, arguments and concerns were, despite the outcome, reasonable considering the very specific circumstances of this case.
Analysis:
[ 18 ] Rule 34.07 of the Rules of Civil Procedure provides for situations where the person to be examined resides outside Ontario. The parties have referred this Court to many decisions on this topic, which have been considered. However, for the sake of brevity, the decision of Justice Newbould in Midland Resources Holding Ltd. v. Shtaif (2009), 2009 67669 (ON SC), 99 O.R. (3 rd ) 550, provides an excellent overview of the applicable law and test. It provides at paras. 9 and 20:
Unlike when a person resides in Ontario, there is no prima facie right of someone who resides outside of Ontario to be examined where he or she lives. The test for determining the location of the examinations is what is just and convenient for both parties, based solely on the circumstances in each particular case. There is no prima facie right of either party with respect to the place of examination.
As stated, it is conceded on behalf of the defendants that rule 34.07(1)(f) gives a court jurisdiction to order that the examination of a person who resides outside of Ontario be held by video conferencing. I agree with this interpretation of the rules.
[ 19 ] There is no presumption for or against video conferencing. This is supported by rule 1.04 which provides that the Rules are to be construed to secure a just, most expeditious and least expensive determination and that proportionality is a factor to consider. As indicated by Justice Newbould, at para. 22, “Each case should be decided on its own facts with a view to determining what is the most just and convenient result in the particular case”.
[ 20 ] Although this case may be factually complicated and the evidence important to the resolution of the forum motion, this can be accommodated by imaginative lawyers. For example, clearly labelled books of production may quite effectively be used to direct an affiant to a document. Alternatively, documents could be made available on a computer screen. I am not convinced, on this motion, that a transcript generated by video conference will not be as useful as one generated in person. Language issues have been raised, but these can be addressed quite effectively with interpretation even if this is done by video conference. The time difference is also raised, but, again, this can be addressed in many ways, including by starting earlier. Intimidation of witnesses is raised as a general concern. I note that such concerns are based primarily (with one exception) on general information about the situation in Iraq. Further, and in any event, if intimidation of witnesses occurs at all in this case, this would be difficult to address simply by the medium selected to conduct cross-examinations. This is a complicated issue that could arise and occur undetected in many ways, quite independently of the selected medium. It is also argued that institutional parties, such as the Defendants, can pay for the cost of travel. This is indeed a factor for the Plaintiff.
[ 21 ] This Court can take judicial notice that required technology for video conferences is now simpler and more easily available than in past years.
[ 22 ] Cross-examinations of the Defendants’ affiants in London, England, although reducing the travel time of the Defendants’ affiants, would require not only the witnesses but everybody to travel to London (both counsel and apparently at least one of the Plaintiff’s representatives). Cross-examinations in Ottawa would require at least two days of travel (both ways) and considerable expenses for about one day of cross-examinations.
[ 23 ] Rule 34.07(1)(f) gives a court jurisdiction to order video conferencing. In response to arguments that video conferencing might not be the perfect medium and might bring with it difficulties not experienced if cross-examinations were conducted in person, I make reference to my comments above and, as well, I make reference and adopt the general comments of Justice Newbould in Midland Resources Holding Ltd., particularly those at paragraphs 22 to 25.
[ 24 ] Indeed, most of the concerns raised by the Plaintiff about video conferencing can, in this case, be addressed by imaginative counsel making effective use of technology to arrive at a just, most expeditious and least expensive determination of the forum motion.
[ 25 ] Considering the facts of this case and the factors outlined above, I am convinced that the scale tips in favour of video conferencing when considering what is just and convenient for both parties. If, for some reason, after reasonable efforts, it is not available in Iraq and if the parties can’t agree on an alternative, then the parties may make an appointment before me, as indicated above.
[ 26 ] I have considered the decisions raised by the Defendants on the issue of jurisdiction: the decision of the Newfoundland and Labrador Court of Appeal in John Doe v. Roman Catholic Episcopal Corp. of St. John’s, 2004 NLCA 27; as well as those in Corsaire Snowboard, Inc. v. Nazerali-Walji (1998), 1998 2519 (BC SC), 55 B.C.L.R. (3 rd ) 243; and Schreiber v. Mulroney (2007), 2007 82797 (ON SC), 87 O.R. (3 rd ) 643 and make these comments.
[ 27 ] The Schreiber v. Mulroney decision can be distinguished, as it has in other cases, on the basis that in this case the Defendants have delivered affidavits in support of their motion.
[ 28 ] I understand, from decisions on this topic, that territorial limitations in jurisdiction, even when one of the parties is contesting jurisdiction, can accommodate the jurisdiction of a court to control and regulate its processes. For example, a court may, in the course of ensuring fairness in an ongoing action where jurisdiction is still an unresolved issue, make orders with regards to required cross-examinations, as was indicated in John Doe at para. 31:
The Institute cannot assert a right to have the direct portion of the evidence of a witness, resident in a foreign country, accepted by affidavit, and impose on its adversary the burden of initiating letters rogatory procedure in order to ensure that the court hears the second part of a witness’ evidence, that part normally obtained by cross-examination. Such an assertion so offends the principle of procedural fairness, essential to every judicial proceeding, that it must be rejected.
[ 29 ] Another example of a court’s jurisdiction to control its process and request answers to undertakings, when jurisdiction is an unresolved issue, is found in Ontario v. Rothmans Inc., 2011 ONSC 2504, where Justice Perell indicates at para. 145:
In what is perhaps a related point, relying on Justice Lax's decision in Schreiber v. Mulroney (2007), 2007 82797 (ON SC), 87 O.R. (3 rd ) 643 ( S.C.J.), the Defendants argued that it would be unfair to compel answers to undertakings of a deponent on a jurisdictional motion precisely because the court's jurisdiction over the Defendants had not been established. I did not find this argument helpful for the circumstances of the case at bar, and I disregarded it in coming to my decision on this appeal. The Schreiber case concerned a situation where the plaintiff Schreiber served a summons to examine the defendant Mulroney to gather evidence to refute Mr. Mulroney's motion challenging the jurisdiction of the Ontario court. In the case at bar, the circumstances are different. Ms. Snook and Mr. Cordeschi voluntarily provided evidence, and exposed themselves to cross-examination. I do not think it unfair that they be examined having regard to the broad ambit of issues that arise for a jurisdictional motion. The question remains, however, whether the Master made an error in principle about the refused undertakings in the circumstances of this case which are different than in the Schreiber case.
[ 30 ] Similarly, as indicated by Justice Howden in Nelson Barbados Group Ltd. v. Cox, [2008] O.J. No. 2410, at para. 6:
It is clear that the motion judge found that the court could make the order requested to change the location of cross-examinations from the affiants' country of residence but held that on balance, it should not be made in the circumstances. It appears that the motion judge found he had jurisdiction to make the order requested as a matter of procedural necessity and any suggestion that the motion was dismissed for lack of jurisdiction is not correct.
[ 31 ] This Court has jurisdiction to define how any required cross-examination that is just and convenient for both parties is to be conducted in a manner that accommodates its territorial limitations, as suggested at para. 32 of the decision in John Doe: see Nelson Barbados and Rothmans. This could include, as an example in this case, ordering that the cross-examination of the Defendants’ affiants occur in Ottawa. Not ordering them to attend in Ottawa but ordering a clearly defined process for the cross-examinations to occur in Ottawa or in London if that was what the court found just and convenient to both parties. If a party that resides outside the jurisdiction of this Court failed to participate in the process as clearly defined by the Court, then this could be addressed at the return of the motion. However, in the circumstances of this case, I have found that what is just and convenient to both parties, as indicated above, is to proceed by video conference.
Master Pierre E. Roger
Date: April 25, 2012