CITATION: Valoris for Children and Adults of Prescott-Russell v. C. A. T., 2016 ONSC 1416
COURT FILE NO.: 536-13
DATE: 2016/02/29
ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
BETWEEN:
Valoris for Children and Adults of Prescott-Russell, Applicant
and –
C.A.T., Respondent
Sophie Côté Langlois for Applicant
Cedric Nahum for Respondent
HEARD: Written submissions
REASONS FOR JUDGMENT
ROGER, J.
[1] Valoris for Children and Adults of Prescott-Russell (“Valoris”) brings a motion seeking an order allowing Dr. David McLean to testify via videoconference at the upcoming trial of this matter, which trial starts next Monday, February 29, 2016.
[2] I requested that the parties provide their materials and submissions in writing, in order to address this issue prior to the start of trial.
[3] I have carefully reviewed the submissions and materials of both parties and, for reasons outlined below, I order as follows:
a) Dr. David McLean may testify via videoconference during the trial of this matter.
b) Valoris shall make all required arrangements for the videoconferencing, as may be required, in coordination with Dr. McLean and the staff of the L’Orignal courthouse.
c) Valoris, in coordination with Dr. McLean, shall ensure that Dr. McLean have access to a computer with access to the internet for purposes of emailing documents not already in his possession to be addressed during his testimony.
d) Valoris, in coordination with Dr. McLean shall ensure that Dr. McLean have available someone to help him with access to the computer outlined above, if required, and as well that Dr. McLean have with him all documents required for his testimony, properly labelled for ease of reference.
e) This decision may be reviewed as required during trial depending on the circumstances then arising.
[4] The concerns expressed by Ms. T. have been duly considered but after careful consideration, as outlined below, I am satisfied that they all can be properly addressed by the appropriate measures taken by this court and ordered above.
[5] Videoconference testimony during trial is permissible when appropriate, as provided at rule 1.08 of the Rules of Civil Procedure. The remedy is discretionary, meaning that the court is to consider all relevant circumstances to arrive at a just result.
[6] Although oral testimony should generally be provided in open court and attendance in person is the rule and generally preferable, it does not necessarily follow that the effectiveness of cross-examination will or may be impaired as a result of videoconference.
[7] In the case at hand, the evidence of Dr. McLean is important to the issues.
[8] If an adequate system for videoconference is made available it should allow for an effective cross-examination. I am informed that L’Orignal has such a system, that it uses daily in criminal matters. Similarly, it should be possible to assess reliability, credibility and demeanour of the witness via teleconference. If there are any issues, this court can address it at trial.
[9] Materials can be provided in advance, as ordered, and access to a computer should allow any additional documents to be emailed and made available to the witness during his testimony, if and when required.
[10] The content of Dr. McLean’s affidavit establishes more than inconvenience on his part, if he is required to travel to L’Orignal.
[11] In his affidavit, Dr. McLean indicates, amongst others, that: he suffers from severe back pain and spasms, he has had a number of back surgery, he has limited abilities to remain seated, he cannot testify for more than half a day and that if more time is needed he will have to return another day; he does not drive a car; he has a special van that could get him to L’Orignal if his wife could drive but that once there he would need a special couch and that experience has thought him that he would be in pain for two weeks afterward; that he has testified for years alternatingly moving about, seated or on a special couch at the Ottawa courthouse; and, that he has testified by videoconference on a number of previous occasions for matters in Cornwall.
[12] An added concern, which arises from the above, is that if Dr. McLean has to travel to testify and if his testimony, for chief, cross and any reply, requires more than half a day, he might not be available to return for about seven weeks.
[13] Considering all of the evidence and the concerns raised by Ms. T., the balance of convenience favours allowing Dr. McLean to testify via videoconference. The concerns raised can be addressed as outlined above. The realistic probability of increased pain to Dr. McLean and potential impact on his ability to testify when the concerns that have been raised can be addressed, favours allowing the relief sought. The probability of a long adjournment in the event that Dr. McLean would need to return as well favours the relief sought.
[14] Overall, considering all the arguments of Ms. T. and the content of the affidavit of Dr. McLean, understanding the importance of this testimony and the general rule that oral testimony should generally be given in court, considering all of the factors outlined at rule 1.08, the fair and just result in this case is to allow the evidence to be given by video, as ordered above.
Roger, J.
Released: February 29, 2016
CITATION: Valoris for Children and Adults of Prescott-Russell v. C. A. T., 2016 ONSC 1416
COURT FILE NO.: 536-13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Valoris for Children and Adults of Prescott-Russell, Applicant
and –
C. A. T., Respondent
REASONS FOR JUDGMENT
Roger, J.
Released: February 29, 2016