Court File and Parties

COURT FILE NO.: CV-08-00354544 MOTION HEARD: 20181121 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lucky Palace Holdings Ltd et al., Plaintiffs AND: Lucky Palace Investments Ltd. et al., Defendants

BEFORE: Master Mills

COUNSEL: R. Thapar, Counsel, for the Plaintiffs S. Schwartz, Counsel, for the Defendants

HEARD: November 21, 2018

Reasons for Decision

[1] This action is set to proceed to trial on November 26, 2018. The plaintiff brings this motion seeking leave pursuant to Rule 1.08(5) of the Rules of Civil Procedure to permit the plaintiff, Surinder Singh Manchanda (“Surinder”), to give his evidence and participate in the trial by way of videoconference technology from Thailand. The defendants oppose this request. For the reasons that follow, the motion is denied with leave to bring a motion before the trial judge for the same relief.

[2] The matters in issue in this action are complex and credibility of the witnesses will be of critical importance. None of the individual plaintiffs are resident in Ontario but there is no question that Ontario is a proper jurisdiction for the trial of this action as it involves Ontario companies and is in respect of assets located in Ontario.

[3] The trial is anticipated to be 16 days in length. Interpreters will be required. With the consent of the defendants, at least one non-party witness for the plaintiffs will give evidence by videoconference. The defendants object to Surinder, as a plaintiff, giving evidence and participating in the trial by way of videoconference.

[4] The factors to be considered by the court in exercising its discretion as to whether to permit a witness or party to give evidence by videoconference or set out in Rule 1.08(5) as follows:

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 videoconference 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 solicitor 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 videoconference and the party or parties opposing; and g. any other relevant matter.

[5] There is no question that with the globalization of business and the advancements in technology, the courts must evolve to facilitate parties and witnesses to remotely give evidence. The court must adapt to modern methods of adjudication so as to create an environment which promotes efficient, affordable and participatory access to justice. Davies v. Clarington (Municipality), [2015] O.J. No. 6145, at para. 25. This must include the greater use of videoconference technology.

[6] As noted by Newbould, J. in Midland Resources Holding Limited et al. v. Shtaif et al. (2009), 99 O. R. (3d) 550 at para. 22, with the high costs of modern litigation, the taking of evidence by videoconference should be encouraged rather than discouraged. Provided the discretion is exercised judicially so as to ensure the most just and convenient result for all parties, there is no legitimate basis upon which to argue that videoconference testimony should be ordered only in exceptional circumstances. Each case must be considered on its own individual merits.

[7] Before a witness is granted leave to give evidence by way of videoconference, all reasonable efforts should first be made to secure personal attendance of the witness. Chandra v. Canadian Broadcasting Corp., [2015] O.J. 4541. This is the issue of primary concern on this motion.

[8] The plaintiff has, on at least three occasions, filed an application for a Temporary Resident Visa to permit him to attend in Canada with respect to this action. On all occasions, the Government of Canada has refused the application for failure to meet the requirements of the Immigration and Refugee Protection Act and the Immigration and Refugee Protection Regulations.

[9] Surinder obtained an order of Firestone, J. dated March 15 2018, indicating his attendance in Toronto was required for the trial of this action commencing November 26, 2018 for a period of 16 days. It would appear however this court order was insufficient to address the concerns of the Canadian immigration officials.

[10] The reasons indicated by the Canadian Embassy in Thailand for the most recent rejection, dated October 17, 2018, are stated to be that the Embassy was not satisfied Surinder had “truthfully answered all questions asked” and he had failed to declare in his application the prior refusals in 2013 and 2015. It was also noted that Surinder had “previously facilitated the irregular migration to Canada of a third person”. The letter then again referenced that the Embassy was not satisfied Surinder had “truthfully answered all questions asked”. This was obviously of great concern as this reason was not only stated twice in the 2018 rejection letter but was also noted in the 2009 rejection of Surinder’s Temporary Resident Visa application.

[11] The October 17, 2018 rejection letter invites Surinder to re-apply if he is able to address the concerns raised in the letter. That has not been done. Surinder is also entitled to have the rejection subjected to judicial review. That has not been done.

[12] The actual visa applications have not been filed with the court. Surinder has provided only the letters of rejection. There is no ability of the defendants or the court to assess whether there has been a bona fide effort to obtain a Temporary Resident Visa. It is unknown whether reasonable efforts were in fact undertaken to secure Surinder’s personal attendance at trial. The uncontroverted evidence of the Government of Canada is that Surinder failed to truthfully answer all questions asked of him in the application.

[13] The failure to seek reconsideration, the failure to seek judicial review and the failure to provide the actual application itself are all factors weighing against Surinder when assessing the balance of convenience between the parties. I have not been persuaded that he has undertaken all reasonable efforts to attend the trial in person and I am not inclined to exercise my discretion to permit him to provide his evidence by way of videoconference technology. Surinder ought not to be permitted to take advantage of his apparent own misconduct. In the circumstances, his reasons for not attending in person cannot be said to be compelling.

[14] I do accept that if all appeals are exhausted and Surinder is still unable to obtain a Temporary Residence Visa, the interests of accessible justice and the balance of convenience would favour permitting his testimony to be given by way videoconference. I have not been persuaded there should inherently be a different standard for parties being granted leave to testify by videoconference as opposed to lay or expert witnesses. Each case must be judicially considered based on its own particular circumstances.

[15] Based on the evidence before me, I am not inclined to exercise my discretion at this time. As noted above, the trial is due to commence in just a few days. The trial judge has the absolute authority to control the judicial process in his or her courtroom. It is for this reason, leave is hereby granted to Surinder to again bring this motion, if he sees fit, to seek this relief from the judge at the commencement of the trial.

Master J. E. Mills Date: November 22, 2018