Remote cross-examination of witness allowed where benefits of continuing litigation seen to outweigh the costs of postponing it u/r 108 of Civil Procedure.
The case examines the factors that need to be adjudged on a balance of convenience for favouring examination of witnesses through video conferencing. Acronti (Plaintiff) had filed an appeal against Ontario Securities Commission ruling holding them liable for securities fraud, alleging ineffective, negligent representation by their lawyer, Mr Smith (Defendant). The Appeal was dismissed by the division court whereupon they filed another suit in the present court for holding the defendant liable for deliberate negligent conduct leading to his conviction and lack of prior information regarding the risks of being adjudged liable under the law. Justice Myers while dismissing the first claim under Rule 21 held that Doctrine of Estoppel prevented parties from re-litigating issues previously adjudged by the court. [Harris v Levine, 2014 ONCA 608; Toronto (City) v CUPE,  3 SCR 77] A mini-trial was ordered for the second claim of the plaintiffs, in which the present ruling elaborates upon conditions for remote examination of witness (Mr. Fenton).
The plaintiff’s counsel had objected to remote examination on the grounds that it would restrict plaintiff from assisting the counsel with respect to document presentation or reference, difficulty in observing the demeanour and that lack of physical presence would upset the solemnity and persuasive environment as well. Further, remote examination creates discrepancy with respect to credibility of the examination as there is opportunity for the opposite party to engage in sleight of hand or abuse of process.
The court proceeded to examine the statutory stipulations governing remote conferencing for proceedings under rule 1.08 of Civil Procedure. The general principle of presentation of evidence was not held to be applicable or significant for a pending trial motion. Further, the discovery transmission of the witness in question would be used in furtherance of admission of the issue and not to adjudge his demeanour. Plaintiff’s plea alleging that remote conferencing would taint the examination unjust was not applicable as the proceedings are at a stage where fraud or abuse cannot be presumed hence a limited risk of abuse is not a good basis for denial of examination.
Thus, relying on the judgements of Miller v. FSD Pharma [Inc., 2020 ONSC 2253] and that of Australian federal court [Capic v Ford Motor Company of Australia Limited, (2020) FCA 486] which examined similar issues, Justice Myers concluded that the present format of video conferencing allows equal opportunity of participation, hearing and presentation of evidence to the parties. While acknowledging there might be initial difficulties faced by the parties in shifting online, however, discomfort or lack of familiarity with technology cannot be the reason for qualifying the proceedings as inefficient or lacking due process. The court allowed for recording of discovery examination of the witness using technology as the benefits of continuing with the litigation outweigh the risks. Additionally, the ongoing pandemic, social distancing rules make remote conferencing an efficient and cost effective method of continuing with the proceedings, the Court noted.