COURT FILE NO.: CV-14-501258 MOTION HEARD: 2016 0830 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GABRIELA ALVES, Plaintiff AND PETER GAUGHRAN and HERTZ CANADA LIMITED, Defendants
BEFORE: Master Lou Ann M. Pope
COUNSEL: Counsel for plaintiff: Michael Courneyea, David J. Levy Law, Professional Corporation Fax: 647-748-7732 Counsel for defendants: Andrei Lezau, Blakeney Henneberry Murphy & Galligan Fax: 416-408-4900
Reasons for Endorsement
[1] The plaintiff seeks an order that the examination for discovery of the defendant, Peter Gaughran (“defendant”), take place by video conference with the assistance of a qualified sign language interpreter. The issue of the method of examination for discovery of the defendant, Hertz Canada Limited (“Hertz”), was resolved between the parties.
[2] The defendants oppose this motion and request an order that the said examination take place by written questions, or in the alternative, by oral examination in London, England with the assistance of a qualified sign language interpreter.
Background
[3] This action arises out of a motor vehicle accident that occurred on September 17, 2012 in the City of Toronto between vehicles operated by the plaintiff and the defendant.
[4] The defendants adduced evidence of Carol Thurlow, an insurance adjuster employed by Crawford & Company (Canada) Inc., the independent adjusting company assigned to represent the interests of Hertz. According to her evidence, the defendant rented the vehicle from Hertz at the Lester B. Pearson International Airport Hertz location. The defendant resides in East London, United Kingdom. To the best of her knowledge, the defendant was visiting Canada from England. He is 63 years old and has a hearing impairment.
[5] There is no dispute between the parties that the defendant has a hearing impairment. This was affirmed by the plaintiff at her examination for discovery when she stated that he was “deaf”.
[6] Ms. Thurlow states that she has been in contact with the defendant. She states that the defendant is “not comfortable and unwilling” to proceed with an examination for discovery by video conference. She also states that she “can only infer” that due to the defendant’s hearing handicap, he is fearful he may misunderstand the questions posed by counsel. Further, she states that he advised her that he needs a British sign language interpreter and he insists on being examined in London, England.
[7] I have some difficulty with Ms. Thurlow’s evidence. She does not state how she was in contact with the defendant, whether, for example, by letter, telephone or email. If by telephone, she does not state how she communicated with him given his hearing impairment. Rule 39.01(4) permits an affidavit for use on a motion to contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit. Here, Ms. Thurlow states that she “personally and through my lawyers”, has been in contact with the defendant. Given the defendant’s hearing impairment, in my view, her affidavit should have specified how she communicated with the defendant and how she obtained the information regarding the defendant’s wishes. I find that her evidence does not quite meet the requirement of rule 39.01(4); however, I am prepared to give it minimal weight, particularly her inference that the defendant is fearful he may misunderstand the questions posed by counsel. In any event, from a practical perspective, it is reasonable to infer that given the severity of the defendant’s hearing loss, he would want a sign language interpreter for the oral examination.
[8] There will be a credibility issue at trial regarding liability for the accident given the conflicting evidence of the parties with respect to how the accident occurred; that is, whether the defendant cut off the plaintiff or whether the plaintiff cut off the defendant.
[9] It is notable that there is no evidence from the defendant particularly given his strong views as set out above. In addition, although it may be obvious from the defendant’s request for a sign language interpreter, I note that there is no evidence that the defendant knows and uses sign language. It appears therefore that all parties are proceeding on the basis that the defendant knows and uses sign language which I am prepared to accept.
Applicable Law
[10] Rule 1.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”) states:
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.
1.04(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.
[11] Rule 34.07 governs examinations for discovery of persons who reside outside of Ontario.
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.
[12] The 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
[13] Rule 34.07 governs examinations for discovery where the person to be examined resides outside Ontario. Specifically subrule 34.07(a) provides that the court may determine whether the examination is to take place in or outside Ontario. Under subrule 34.07(f), the court has discretion to determine any other matter respecting the holding of the examination.
[14] The court has discretion to determine whether the examination is to take place by video conference pursuant to subrule 34.07(f). (Midland Resources Holding Ltd. v. Shtaif; Humphrey v. Canada (Attorney General) [2016] O.J. No. 2538 (S.C.J.))
[15] The authorities have held that where a party resides outside 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 conference. (Midland Resources Holding Ltd. v. Shtaif, at para. 9)
[16] Regarding the place of the examination, the plaintiff seeks to conduct the examination by video conference with counsel in Toronto and the defendant in London, England. The plaintiff also agrees that the defendant have the assistance of a sign language interpreter given his hearing impairment.
[17] The plaintiff points out that in the two decisions relied on by the defendants, the court had concerns that the examiner would be disadvantaged by the use of video conference. However, it is her position that she will not be disadvantaged by the use of video conference given the advancements in technology with the use of large screen televisions, microphones and a sign language interpreter. She states that with the use of video conferencing, the examination will not be any different than being in person.
[18] The defendant seeks to have the examination conducted by written questions or orally in London, England. The defendant raises concerns about the accuracy of interpretation of the defendant’s testimony by use of a sign language interpreter.
[19] At the hearing of the motion, defence counsel filed a position paper issued by the Association of Visual Language Interpreters of Canada (“Avlic”) entitled, Interpreting Legal Discourse & Working In Legal Settings: An AVLIC Position Paper. The paper is an update in 2011 by Debra Russell on behalf of Avlic. As described on its website, Avlic is a non-profit, professional association for interpreters whose working languages include a sign language. The association was established in 1979 and it is the only certifying body for ASL-English (Association of Visual Language) interpreters in Canada.
[20] Defence counsel provided the Avlic paper to plaintiff’s counsel the morning of the hearing. As such plaintiff’s counsel advised that he did not have sufficient time to review it; however, he agreed to proceed with the hearing having pointed out that this paper was written five years ago and it was not considered guidelines for the court. Thus, I advised counsel that I was prepared to consider this paper while giving it the weight I felt it was due once I was able to review it.
[21] It is apparent that the Avlic paper was intended to assist interpreters in providing effective interpretation services. (page 7, first full paragraph) There are several portions of the Avlic paper that are noteworthy which I will set out below.
[22] In the preamble on page 5, paragraph 2, it states that the field of sign language interpretation has grown and changed significantly over the past thirty years. The Avlic Board of Directors provided this document in order to highlight issues and to give direction related to interpreting in legal discourse and working in legal settings. On page 6 at paragraph 2, the preamble continues to state:
This is not meant to be a “training guide”; rather it is designed to offer guidance to the reader. It states further that by identifying qualifications, roles, responsibilities, and protocol for legal discourse and legal settings, Avlic seeks to advance the profession by ensuring consistency of service provision and encouraging a standard of service that will effectively serve consumers and the legal profession. This will also help consumers know what they can expect from a qualified interpreter in legal settings.
[23] Importantly, the last paragraph of the preamble states that the content presented in the paper applies to all interpreters, regardless of whether they are deaf interpreters or non-deaf interpreters.
[24] The paper sets out best practice approaches to effective interpretation in court and in the legal settings including examinations for discovery. This section addresses the use of simultaneous and consecutive interpreting methods. Although these terms are not defined in the paper, they are self-explanatory. For the purpose of this decision, I understand “simultaneous interpreting” to be the method of interpreting the spoken word or the signed word immediately and concurrently. Whereas, the “consecutive” method involves interpreting the spoken words or the signed words following the statements or uninterrupted.
[25] The author states that historically, sign language interpreters worked entirely in simultaneous mode given that they can be signing, while listening to the spoken language. This method involves a complex process of producing effective interpretation which takes time. However, the paper states that research demonstrates that when the interpreter chooses simultaneous interpreting, she/he is at greater risk for errors that range from serious content errors to producing interpretation that is grammatically incorrect and therefore not understandable by the deaf consumer. As such, the writer concludes that in order to achieve accurate, meaningful, and effective interpretation using the simultaneous method, “. . . it is necessary that legal interpreters put the fidelity of the interpretation above any pressure to produce a speedy, pseudo-efficient interpretation.” (page 8)
[26] The paper goes on to discuss the limitations of simultaneous interpreting in the legal setting which, it states, is the dominant practice. The research shows that there are increased errors when using this mode for direct evidence, cross-examination and expert witness testimony. There errors cause grave concern for those involved in the legal system as errors produced, for example, at the time of taking a police statement cannot later be corrected in a courtroom. The author concludes that interpreters working in the legal system must remain cognizant of the limitations of simultaneous interpretation.
[27] However, the paper states that it is clear from the research from both spoken and signed language interpretation that consecutive interpreting, when performed well by interpreters who are familiar with the strategies needed for this mode, is more effective and accurate than simultaneous interpreting. At the time this paper was issued in 2011, it stated that The United States of America had statutes that require interpreters to use consecutive interpreting for all non-English speaking witnesses; however, there were no consistent guidelines in Canada.
[28] The paper strongly advises the use of consecutive interpreting in legal settings where the consequences of errors is grave and potentially has long-lasting impact. (page 8, end of first full paragraph)
[29] Part 3 of the paper addresses the topic of visually recording sign language interpretation. Creating a video recording of the interpretation of the deaf person’s testimony is recommended as a best practice. The paper sets out the recommended protocol for video recording. Further, it provides a list of Ontario decisions where videotaping of evidence interpreted by a sign language interpreter was allowed. In addition, it states that such recordings are the only way in which interpreting in a signed language can be examined should there be a question about the accuracy of the work, as opposed to spoken languages which can be permanently captured via audiotape.
[30] Lastly, part 4 of the paper addresses interpreting by video remote services, which can be used in remote communities where interpreters are not readily available, such that the interpreter would be located at a different location than the witness. This method does not apply to this motion as the proposal is that the interpreter would be present at the same location as the defendant for his examination.
[31] Having reviewed the Avlic paper, it is my view that the information contained therein and the recommendations are instructive and helpful for an examination for discovery of a person with a hearing disability to ensure the accuracy of the interpretation of the person’s testimony, and further to ensure that a video recording is available in order for the person to verify for himself the accuracy of his answers.
[32] In my view, where a sign language interpreter is used for an examination for discovery, it is important to have a video recording of the testimony given the obligations imposed under rule 31.09 on a party who has been examined to correct answers or to complete answers. Further, in circumstances where a sign language interpreter is used, not only will the person who was examined have a copy of the transcript of the examination in order to review his or her answers to ensure their accuracy and completeness, he will also have the video recording to verify that the examiner’s questions were interpreted accurately.
[33] When determining whether examinations for discovery are to be conducted orally and in this case with the use of a sign language interpreter, or in writing, the court will consider the advantages and disadvantages of both methods. Oral discovery is critical in order to observe the demeanor of the witness in person and to assess what kind of witness he will be at trial; whereas, with written questions, the plaintiff would be deprived of that opportunity. The defendants submit that with oral discovery, particularly in the case herein, there will be risks associated with the use of a sign language interpreter as identified in the Avlic paper. In addition, with written questions, there are obvious costs savings as there would be no travel and hotel costs.
[34] Neubold J. in Midland Resources Holding Ltd. v. Shtaif, at paragraph 22, decided in 2009, opined that examinations of witnesses by video conferencing are a normal process in “modern international litigation or arbitration” because often the time and expense involved in travelling to far distant places is not warranted if there is an alternative. He disagreed with Master Dash’s statement in a decision five years earlier in 1337194 Ontario Inc. v. Whitely, 2004 CarswellOnt 2312, that discovery by video conference should be ordered rarely and only in exceptional circumstances. Neubold J. held that with the high costs of modern litigation, it should be encouraged rather than discouraged so long as the discretion of the judicial officer in deciding whether to order video conference is exercised judicially. He held further that 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.
[35] Both Neubold J. and Master Dash considered rule 1.08 which provides for video conferencing of a proceeding before a court, such as a motion, pre-trial conference and a trial. If the parties do not consent, the court may order a video conference and subrule 1.08(5) provides factors to consider. That rule states:
1.08(5) In deciding whether to permit or to 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.
[36] I concur with the conclusions of Neubold J. in Midland Resources Holding Ltd. v. Shtaif, at paragraph 24, that this rule is an acknowledgment of the usefulness of taking evidence by way of a video conference and while it does not deal with steps in a proceeding such as examinations for discovery that is not heard by a judicial officer, it does not preclude an order under rule 34.07(1)(f).
[37] In this case, the opposition taken by the defendant to the examination of the plaintiff by video conference in London, England are due to the limitations of sign language interpreting, the defendant’s hearing impairment and the defendant’s fear that he may misunderstand the questions posed by counsel.
[38] Putting aside the issue of an interpreter, the issue on this motion comes down to whether the examination should take place orally or in writing. The fact that the defendant will require an interpreter if there are oral examinations is one factor the court must consider in deciding the location of the examinations and whether oral examinations are just and convenient for both parties.
[39] There is no evidence regarding the costs of travel and hotel to London, England to conduct the examination there. Nor is there any evidence of the costs involved in retaining a sign language interpreter, videographer and rental of conference room to conduct the examination in London. Therefore, in my view, it is logical that if an oral examination took place in London, there would be substantial travel and hotel costs for both counsel to attend, as well as the costs for an interpreter, court reporter and room rental. Further, it is logical that the costs would be significantly reduced if the examination takes place by video conference as neither counsel would have to travel to England; however, there would still be the costs of the interpreter, videographer, court reporter and room rental in both Toronto and London. Furthermore, the convenience of the parties favours examination by video conference so that the defendant and counsel do not have to travel a long distance to attend the examination.
[40] None of the authorities cited deal with an examination for discovery of a person with a hearing disability.
[41] I accept that examinations of witnesses by video conferencing are a normal process in modern international litigation as opined by Neubold J. in Midland Resources Holding Ltd. v. Shtaif, and even more so in the seven years that have passed since that decision in 2009.
[42] My decision is also informed by rule 1.04 that the court must strive to achieve the just, most expeditious and least expensive determination of an issue, and to make orders and give directions that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding.
[43] For the above reasons, I have concluded that it will be just and convenient in the circumstances herein for the examination of the defendant to be conducted orally in Toronto by video conference from the defendant’s residence in or near London, England with the assistance of a qualified sign language interpreter present with the defendant in London. Further, the examination shall be video recorded as recommended in the Avlic paper and the parties and the interpreter shall follow the Avlic guidelines as much as possible. As a result, after completion of the examination, the defendant will have the benefit of not only the written transcript of the examination to review the questions asked by plaintiff’s counsel and verify the accuracy of his answers, he will also have the video recording to verify the accuracy of the interpreter’s work.
[44] An oral examination by video conference will be the most cost-effective method, while at the same time satisfying the defendant’s desire to be examined in the jurisdiction where he resides with a sign language interpreter. This will also be the most expeditious method as opposed to a likely delay with both lawyers having to clear their schedules for several days at the same time in order to travel to London, England. Oral examinations ought to be reserved for those actions where, for example, credibility is not in issue, which is not the case here. The need for plaintiff’s counsel to observe the demeanor of the defendant is a significant factor.
Costs of Examination for Discovery on August 5, 2015
[45] The plaintiff also seeks an order that the defendant pay the costs of obtaining a certificate of non-attendance for the examination for discovery of the defendant on August 5, 2015.
[46] Firstly, the evidence of Marina Samokhvalov, at paragraph 5 of her affidavit, is that examinations for discovery of the defendants were scheduled for August 5, 2015 “with the input of all parties”. The defendant disagrees with that statement. The evidence of Carol Thurlow, at paragraph 7, is that there was no agreement to produce the defendants on August 5, 2015. There is no documentary proof in the form of a letter or email which confirms any such agreement. I find that there was no such agreement.
[47] Secondly, although there was no agreement, the plaintiff served a notice of examination on the defendants on or about April 14, 2015 for the examination scheduled for August 5, 2015 in Toronto. Shortly thereafter defence counsel raised the issue regarding the location of the examination of Mr. Gaughran. Therefore, in my view, it was improper for the plaintiff to schedule the examination of Mr. Gaughran in Toronto given the provisions of rule 34.07.
[48] However, I find that it was not improper for the plaintiff to schedule the examination for discovery of the defendant, Hertz Canada Limited, as they have offices in Ontario. Furthermore, the defendants subsequently agreed to produce a representative of Hertz Canada Limited in Toronto.
[49] The defendants’ evidence is that the plaintiff had not served a “sworn” affidavit of documents prior to serving their notice of examination, contrary to rule 31.04(2). The plaintiff adduced no evidence that it had served a sworn or unsworn affidavit of documents prior to serving the notice of examination. Therefore, being in contravention of rule 31.04(2), I find that it was improper for the plaintiff to serve the notice of examination for discoveries of the defendants scheduled for August 5, 2015.
[50] Therefore, the plaintiff is not entitled to payment of her costs in obtaining the certificate of non-attendance.
[51] Furthermore, I would have used my discretion under rule 29.1.05 to refuse this relief in any event as there was no discovery plan in this action as required by rule 29.1.03. Had there been discussions between counsel regarding a discovery plan, they would have had to address the issue of the location of discoveries, and failing an agreement, a motion would have been brought requesting a court-imposed discovery plan. In that case, the plaintiff would not have gone to the expense of scheduling, drafting and serving a notice of examination, and obtaining a certificate of non-attendance.
Costs of the Motion
[52] The plaintiff was successful on the most substantive relief sought being the location of the examination of Mr. Gaughran. However, the defendants were successful on the relief regarding the examination for discovery scheduled for August 5, 2015. Although there is no discovery plan in this action, in my view this motion would have been required in any event.
[53] Therefore, I grant the plaintiff costs of this motion; however, in fixing costs I have taken into consideration the defendants’ success on one of the relief sought.
[54] The defendants shall pay the plaintiff’s partial indemnity costs of this motion fixed in the amount of $1,200, inclusive of fees, disbursements and tax, payable within 30 days.
(original signed) ____ Master Lou Ann M. Pope September 9, 2016