Videoconference Appearance at Trial May 21, 2010

In Nybo v. Kralj, the Supreme Court of British Columbia issued an order allowing three witnesses to appear via videoconference. While this case might not seem newsworthy, what is interesting is the openness of the court to the use of technology given the particular circumstances of the case.

As summarized by the trial judge:

• [1] The plaintiff has applied to have three witnesses give evidence by way of videoconference. The defendant opposes the application, which was heard on the third day of a fifteen day civil jury trial. The defendant says that the personal reasons given for non-attendance are insufficient and that the plaintiff should have subpoenaed the witnesses.
• [2] No evidence was presented in support of the application. No details were provided to the Court as to exactly what the arrangements for videoconferencing might be. In particular, the plaintiff has not complied with the Notice to the Profession concerning videoconferencing and has not completed the Court Videoconference Request Form, which provides information to the trial co-ordinator about the who and where of the proposed videoconference. Counsel for the plaintiff merely said that this was a “frequent occurrence” and that she had worked with a company previously for such arrangements. Counsel did not advise whether the location would be at a court or non-court site, whether documents will be put to the witnesses, what arrangements were made for the oath, or any other details. The trial co-ordinator has not been contacted for this purpose with necessary information five days prior to the proposed videoconference, as is requested in the court’s protocol.

One witness was in Penticton, British Columbia, a second in Toronto, Ontario, and the third in the United States.

• [4] None of the witnesses have sworn an affidavit explaining why they cannot attend court. However, plaintiff’s counsel said that both Mr. Tang and Ms. Crossley said that they cannot take time from work. Mr. Tang owns his own company and Ms. Crossley works for a high technology company. Ms. Nybo is a single mother, does not want to take time from work, and is busy caring for her father who is in hospital in the afternoons. None of the witnesses has any infirmity or illness that prevents them from attending in court.
• [5] None of the Canadian residents have been subpoenaed, including the British Columbia resident. The plaintiff chose not to do so, even though process is clearly available for the British Columbia and Ontario residents (Rule 40(35), Subpoena (Interprovincial) Act).

While “the rule applicable to trials in British Columbia and the general principle is that a witness at trial of an action shall testify orally in open court” (Rule 40(2)), testimony of a witness at trial by videoconferencing is provided for under s. 73 of the Evidence Act, R.S.B.C. 1996, c. 124.

Despite these deficiencies, the judge granted the application and noted:

• [11] British Columbia’s legislation is different [than Ontario's]. It establishes that the court may allow videoconference evidence if another party does not consent unless the non-consenting party satisfies the court that receiving the testimony in that manner would be contrary to the principles of fundamental justice. In my view, this expresses a narrower view of the exclusion of videoconferencing and puts the onus on the party who would deny use of the technology.