Canada: Virtual Examination Of Witnesses - A Viable Option At Law And In Practice?

Last Updated: December 19 2012
Article by Alexandra Logvin

Despite a traditionally busy fall season, civil litigators from the Ottawa and Eastern Ontario region gathered again this November at a County of Carleton Law Association (CCLA) annual litigation conference to share best practices and listen to the wisdom of judges and masters in an out-of-court setting. Fasken Martineau Ottawa's litigation group was invited to speak at the conference and provided thoughts and recommendations on successful litigation strategies. Peter N. Mantas, the head of Fasken Martineau Ottawa's litigation group, spoke on a procedural and 21st century international business and technology driven development -- the use of video conferencing in examination of witnesses.

In the modern litigation world, the seat of the parties is rarely local to the seat of the court or counsel, generating a steady increase in the practice of conducting witness examinations by way of a virtual videoconference (as opposed to a more traditional way of viva voce examination confining witness and counsel to the same location and space). An obvious benefit to clients from this new procedural phenomenon is dramatic savings in costs, including travel, accommodation and, indeed, technology, thanks to the rapid proliferation of Skype and other similar services over the past few years.

At the same time, the recent rise of videoconference witness examinations poses a number of challenges: (i) when, if ever, and in which circumstances viva voce examination is mandatory and can be ordered by the court if the parties disagree on the procedure of examination; and (ii) which party bears the costs of a witness's travel and accommodation, and if virtual examination is agreed upon or ordered by the court, the costs of setting up the videoconference.

The law does not answer these questions with certainty. The paces of technology and law in this area do not match. To date, the law in Ontario and throughout Canada as to who can be examined by videoconference, when and at what cost, is scarce, being comprised of less than two dozen reported decisions, and leaving greater room for advocacy. 

Fasken Ottawa litigators have been at the forefront of these procedural changes, setting reality standards and contributing to developments in law in this area. This includes a recent representation of an Ottawa-based international corporate client litigating against several entities located in Iraq.

This litigation, and the issue of examination by videoconference in particular, piqued the interest of the public (the case was reported in the news) and indeed, the profession. While the courts' idea about facts driving each case is consistent with the axiom of broad judicial discretion to fashion the most just and expeditious process, and the alternative of video conferencing is appealing, its implementation remains challenging in the real world where the disputants are ordered to work together to find ways to overcome logistical difficulties (such as language, time zones, the presentation of documents to a witness), including with the assistance of "imaginative counsel [capable of] making effective use of technology."

Formed in Ottawa in 1888 by a group of 60 lawyers, the CCLA has grown into the second largest law association in Ontario, uniting outstanding members of the bar and featuring one of the strongest advocacy groups in Ontario.

The CCLA annual civil litigation conference has achieved acclaims throughout the province and beyond for bringing together civil and commercial litigators from private, public and in-house practice, as well as senior members of the provincial and federal bench. While the beautiful Chateau de Montebello has been home to the conference for a number of years, this time the conference was hosted at Mont-Tremblant's Fairmont Royal, to accommodate the growing professional interest in the conference and its speakers and guests.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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