Court File and Parties

COURT FILE NO.: 15-63311 DATE: May 11, 2016

Superior Court of Justice - Ontario

RE: RONALD HUMPHREY Plaintiff AND: ATTORNEY GENERAL OF CANADA Defendant

BEFORE: MASTER NATHALIE CHAMPAGNE

COUNSEL: Natalie Scott, for the Plaintiff Max Binnie, for the Defendants

HEARD: April 5, 2016

Endorsement

Background

1The plaintiff brings this motion for an order for the examinations for discovery of the plaintiff to be taken by video conference. The defendant is opposed to examinations by video conference and seeks an order that examinations be in person or, alternatively, that the plaintiff’s counsel participate by video conference if he does not wish to travel.

2At the outset of this motion the defendant asked that paragraphs 14 and 15 of the affidavit of Paul Auerbach, counsel for the plaintiff, be struck on the grounds that the deponent was giving opinion evidence. The plaintiff did not oppose the striking of those two paragraphs and they are struck accordingly.

3The facts of this matter are not in dispute and they are as follows:

4The plaintiff is an American citizen who was an inmate at the Pittsburgh Institution (“Pittsburgh”) in Kingston, Ontario in February 2013.

5The defendant is the legal representative of Her Majesty the Queen in Right of Canada and at all material times was responsible for the operation of Pittsburgh.

6The plaintiff issued a Statement of Claim against the defendant alleging that on February 9, 2013 he slipped and fell on a pathway at Pittsburgh and injured his wrist, back, arm, shoulder and neck. His claim against the defendant is for $1,000,000.00. The plaintiff is the only witness to the incident that gave rise to the claim. There is no incident report or record of the fall but the plaintiff did have surgery on his wrist in March 2013.

7On May 20, 2014, the plaintiff was released from Pittsburgh and was escorted from Canada to the United States where he is a citizen. The plaintiff now resides in Atlanta, Georgia and is unable to attend in Ottawa for examinations for discovery as he is not permitted to cross the border into Canada due to his criminal record.

8The plaintiff’s position is that examinations should take place by video evidence as this would be the most cost effective, expeditious and convenient manner of proceeding. The plaintiff provides evidence that the disbursements to conduct examinations would exceed $1,200.00 and would take two days including travel time.

9The defendant’s position is that it needs to conduct examinations in person to assess the plaintiff’s credibility and it submits that the disbursements are not a significant expense that warrant an order for examinations by video conference. The defendant proposes that an alternative to conducting the examinations by video conference would be to allow the defendant to attend the examinations in person while the plaintiff’s counsel participates by video.

10The defendant’s position is that because the plaintiff is the only witness to the incident that gave rise to the litigation, he should be examined in person so that the defendant can assess his credibility. The defendant presents no evidence with respect to the plaintiff’s credibility or as to the impact on its defence if examinations for discovery take place by video conference.

The Issues

11Is it just and convenient to order that examinations for discovery of the plaintiff take place via video conference?

12Is the defendant entitled to examine the plaintiff in person in Atlanta, Georgia if it so chooses?

Disposition

13Having read the materials before me, including the motion record, factum and books of authorities submitted by both parties, and having considered the oral submissions of counsel, I am of the view that it is just and convenient for both parties in the circumstances of this particular case for the defendant to conduct its examinations for discovery of the plaintiff by way of video conference.

Statutes and Jurisprudence

14Rule 1.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), guides the court in the application of the Rules:

1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. R.R.O. 1990, Reg. 194, r. 1.04 (1) .

Proportionality

(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 amount involved, in the proceeding. O. Reg. 438/08, s. 2.

15Rule 34.07 of the Rules governs examination for discovery of persons residing outside of Ontario and provides that:

34.07 (1) Where the person to be examined resides outside Ontario, the court may determine,

(a) whether the examination is to take place in or outside Ontario; (b) the time and place of the examination; (c) the minimum notice period; (d) the person before whom the examination is to be conducted; (e) the amount of attendance money to be paid to the person to be examined; and (f) any other matter respecting the holding of the examination. R.R.O. 1990, Reg. 194, r. 34.07 (1) .

16The test for determining the location of examinations is what is just and convenient for both parties based on the circumstances of the case (Midland Resources Holding Ltd. v. Shtaif (2009), 99 O.R. (3d) 550, at para. 9).

Analysis

17Rule 34.07 of the Rules governs examinations for discovery of parties who live outside of Ontario. Specifically Rule 34.07(1)(f) gives the court the authority to order that examinations for discovery of a person residing outside of Ontario be held by video conferencing. This authority is confirmed by Justice Newbould in Midland at paragraph 20. Rule 1.04 of the Rules makes clear that the rules are to be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits and in so doing the court must take into consideration the importance and complexity of an issue as well as the amount involved. It is against this background that I must determine what is most just and convenient for the parties in this action.

18The plaintiff argues simply that it is most convenient, cost-effective and expeditious to conduct examinations by way of video conference and argues that the use of video conference technology is a legitimate and normal process that should be used to save expense and time. The evidence of the plaintiff is that the cost of conducting examinations in Atlanta, Georgia would be about $1,200.00 plus two days of travel time.

19The defendant submits that the quality of video conferencing technology will not allow for the same level of scrutiny as an examination in person and that an in-person examination is necessary in this case to allow the defendant to assess the plaintiff’s credibility. The defendant did not provide any evidence to suggest that the plaintiff was not credible, nor did it put forth any evidence to show how it would be in any way disadvantaged by conducting examinations for discovery by way of video conference. While the defendant argued that video conferencing was not appropriate for this case, no evidence was provided as to why, other than to assert that the plaintiff was the only witness to the incident which gave rise to the litigation.

20The plaintiff argues that examination by video conference in this case is appropriate, just, cost effective and expeditious. The plaintiff argues that the court in Midland, at paragraph 22, legitimized video conferencing as “a normal process in modern international litigation or arbitration”. I agree with that proposition. The court in Midland also considered the issue of the assessment of credibility and demeanor of a party and endorsed video conference technology stating that “video conferencing facilities available today provide clarity, and if requested, close up clarity of the person being examined.” Justice Newbould went on to say that

if the credibility of the witness becomes of importance at the trial, the fact that a videotape of the examination is available for the trier of fact, and not just a written transcript of the evidence, should assist the trier of fact in assessing the credibility of the evidence given by the witness on his or examination for discovery. That of course is not available if a videotape of the discovery has not been taken. (at para. 25)

21Master Roger, as he then was, also endorsed the use of video conference technology in Code Incorporated v. Independent High Electoral Commission, 2012 ONSC 2208, 40 C.P.C. (7th) 300. I accept their endorsements of video conferencing technology.

22The plaintiff and defendant both referred to Midland to support their positions. They both agree that Midland makes clear that where a party resides outside of Ontario, neither party has a prima facie right with respect to the place of examination and that there is no presumption for or against video conferencing. I accept this. The defendant further argued that this court should follow the decision by Justice Newbould in Midland which allowed the defendant to choose whether to examine the plaintiff in person or to conduct the examination via video conference. I disagree. The present case can be distinguished from Midland on the facts. In Midland, Justice Newbould ruled against the defendants who wanted an order compelling the plaintiff to travel from Moscow to Toronto attend for his examination. The plaintiff in that case had argued that due to the plaintiff’s illness, the examination should take place in either Moscow or London or by video conference. The plaintiff was successful and the defendants were thus permitted by the court to choose from those options. I do not believe that Midland stands for the proposition that a defendant has a right to choose to examine a plaintiff in person rather than by video.

23The defendant proposed to conduct the examination of the plaintiff in person in Atlanta with the plaintiff’s counsel appearing for the plaintiff by way of video conference if he did not wish to travel. The plaintiff refused and at this motion made submissions that conducting examinations in this way would cause an “unevenness” for the plaintiff. The defendant argues that the plaintiff’s objection to setting up examinations in such a way makes its point, that video conferencing is not an adequate substitute for in-person contact. I agree that there is a difference between in person contact and contact by video but that does not mean that examinations by video are inappropriate. In my view the issue raised by the defendant’s proposal is one of fairness. For the proceedings to be fair and just for the plaintiff, counsel for both parties should either be in the room with the plaintiff or both appearing by video in order for the playing field to be level and perceived as such by the plaintiff.

24The defendant also argued that the amount of the claim in the case elevates the need for the examination of the plaintiff to be conducted in person. The defendant referred me to a number of cases in this regard, most of which dealt with examinations by video conference at a trial and not at examinations for discovery. In my view, the amount realizable on a claim may not crystalize until after examinations for discovery, thus I do not place much weight on that factor at this stage of the proceedings.

25The case before me is not factually complex. It is about a slip and fall that allegedly resulted in injury to the plaintiff. There is no evidence to suggest that the plaintiff is not credible and should be examined in person, nor is there any evidence by the defendant to demonstrate that it would be disadvantaged by conducting examinations by video conference. In the circumstances, I am satisfied that the most just, cost efficient and expeditious way to conduct examinations for discovery of the plaintiff are by way of video conference.

26If the parties cannot agree on costs, they may within 30 days each make written submissions of no more than 3 pages each, for my consideration.

Master Nathalie Champagne