ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 06-CV-310261PD2

DATE: 20150831

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 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.

(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 SCC 7, 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 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 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 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

[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”.

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