In this article, we will look at a case that deals with a Defendant’s application to seek a video deposition of their expert under oath before a court reporter prior to the trial of this case and that the said record of the stated deposition be tendered as evidence at the trial. The case is helpful as it goes through the fact pattern and the factors that must be considered when seeking a video deposition. It also offers several relevant cases that are relevant on this specific topic, with an overview of how the law in Ontario differs on this subject.
The referenced case is Johal v. Radek, 2016 BCSC 232 (CanLII).
What we also note in this case is that when parties in a legal claim are agreeing to an Independent Medical Examination, it is important to highlight your terms of agreement for the subject IME. In this case, Plaintiff’s counsel made it clear that the Plaintiff would agree to attending a defence IME on the condition that the expert would be available for trial. What is more specific, however, is that the term outlined stipulated that a pre-deposition would not be consented to except in “extraordinary circumstances”. Here is the actual paragraph outlined in counsel’s letter:
Your expert is to be advised of the trial date. If you serve your expert’s report and your expert is requested for cross-examination, I will expect your expert’s attendance at trial. I will not consent to a pre-trial deposition except in extraordinary circumstances. Convenience to your expert will not be a consideration and I would only consent to a pre-trial deposition if there’s no prejudice to my client;
The defence counsel agreed to such terms. This is relevant because this language became a focal piece in this hearing. It’s a well-thought out term and one that should be noted in existing claims as it was quite helpful in this hearing.
Of course, once the report of the expert was produced, Plaintiff’s counsel provided notice to the Defendant that the expert witness would be required for cross-examination at trial with a further letter seeking the date and time that the expert would attend trial. This is a matter of procedure that should not be overlooked.
The communications were clear, and must be clear between the parties as matters may arise that require a careful review of the timeline of these requests. The communications between the parties become evidence at future hearings when issues arise.
The relevant rule that governs deposition under the BC Supreme Court Civil Rules is Rule 7-8(3) which is enumerated for ease of reference:
Rule 7-8 (3) Grounds for Order
In determining whether to exercise its discretion to order an examination under subrule (1), the court must take into account:
(a) the convenience of the person sought to be examined,
(b) the possibility that the person may be unavailable to testify at the trial by reason of death, infirmity, sickness or absence,
(c) the possibility that the person will be beyond the jurisdiction of the court at the time of the trial,
(d) the possibility and desirability of having the person testify at trial by video conferencing or other electronic means, and
(e) the expense of bringing the person to the trial.
The Court noted the following facts (in note form):
- The expert was put on notice as a professional witness
- This was an expert that was commonly retained to testify as to his expert opinion
- The expert was aware of his professional obligations
- An addendum report from the expert was eventually sought by the defence counsel
- The defence counsel notified Plaintiff’s counsel that a pre-trial deposition was required as the expert would be away the entire week as well as the week prior and requested available dates from Plaintiff’s counsel
- The expert did not give any evidence on this subject
- The only evidence submitted by the defence counsel was through the paralegal working for defence counsel
- The Court commented this was triple hearsay
- The Court was not impressed with the lack of evidence on behalf of the expert witness
- No idea when this trip was planned
- No idea why this trip was necessary
- No evidence from the expert at all
Plaintiff’s counsel arguments:
- Disputes the request for a video deposition
- The most just approach is for the expert witness to attend trial by video conference at the appropriate time
- Plaintiff’s evidence included facilities in Bogota, Colombia and Medellin, Columbia that provides evidence by video conferencing
Defendant’s counsel arguments:
- Should not be deprived of the evidence of the expert by refusing the application for a video deposition
- The court commented that there is no evidence that the defence would be deprived. This point did not bear much weight.
- There was no evidence that the expert witness would not be available for a video deposition
- There was also no evidence that the expert witness could not fly back to attend the trial
The court’s analysis and conclusion is quoted directly from this case:
 With respect to (a), the convenience of Dr. Rickards would certainly be to have the deposition taken in advance of the trial. With respect to (b), there is no evidence that he is unavailable for a video conference or in fact unavailable to testify other than the evidence of Ms. Dhanpaul that he has plans to be in Colombia. With respect to (c), the possibility he will be beyond the jurisdiction has been dealt with.
 As for (d), the possibility and desirability of having the person testify at trial by video conferencing or other electronic means: As I said, the plaintiff has brought evidence with respect to the availability of video conferencing in Colombia and refers me to the decision of Master Young, as she then was, in Seder v. Douglas, 2011 BCSC 823 (CanLII), at para. 27 where Her Ladyship referenced the following:
 In Nybo v. Kralj, 2010 BCSC 674 (CanLII), Madam Justice Dillon considered this section of the Evidence Act in a jury trial where the plaintiff’s counsel applied in the middle of a trial to have three witnesses give evidence by way of video conference. Her Ladyship said this at paragraph 11:
British Columbia’s legislation is different [from the Ontario legislation]. 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. …
 That solution was also addressed in Campbell v. McDougall, 2011 BCSC 1242 (CanLII), a decision of Master Bouck, at paras. 24 and 25:
 Plaintiff’s counsel proposes that Dr. Maloon attend trial via videoconferencing from [South] Africa. The plaintiff is willing to accommodate the defence in any manner during trial to allow for this procedure.
 Dr. Maloon has provided some details of his expected whereabouts during the 25-day trial period. He is unable to provide a precise itinerary given that the travel period is still five months away. Dr. Maloon expects to be working in Cape Town, South Africa, during the last month of his sabbatical. Nonetheless, the doctor deposes that “it is not possible” to participate in a videoconferencing given that “my schedule is too uncertain to be able to make a commitment and I will not have access to any charts or records”.
And then the court points out that:
 The dangers of video depositions have been referred to in many cases, one of such is Byer v. Mills, 2011 BCSC 158 (CanLII). The court commented on the use of video deposition at trial and those comments have been reiterated in various other cases including in Campbell at paras. 53 to 55 where the court says:
 The comments, while obiter, were further adopted by the court in Seguin v. Stack, (11 March, 2011) Vancouver No. M095847 (B.C.S.C.) in which Master Baker dismissed an application to permit a medical doctor to provide evidence by way of deposition as the doctor was already committed to surgical and clinical activities (along with other trials) during the particular week of trial. As Master Baker observed, the doctor was advised of the trial dates so any conflict in that regard must have been the fault of his office …
 Most recently, Master Young decided that the use of videoconferencing is to be preferred over deposition evidence so long as the object of fundamental justice is achieved …
 In this case, Dr. Maloon is an important witness for the defence. From this observer’s perspective, there are several aspects of the report that invite careful and thorough cross-examination by plaintiff’s counsel.
Master Bouck went on to dismiss the application to have Dr. Maloon’s evidence taken by video deposition.
 The defendant relied on a decision of Mr. Justice Willcock in Gill v. A & P Growers Ltd., 2011 BCSC 1421 (CanLII). The plaintiff points out that that decision must be carefully read and construed as it was with respect to an application by the plaintiff for a video deposition of an expert in advance of trial. It was submitted that the difficulties that arise from taking a video deposition of a defendant’s expert do not arise in those circumstances.
 Counsel for the plaintiff pressed upon me that there are disadvantages in that if there are eventualities that arise at the trial that are not contemplated or not considered in advance of the video deposition of the proposed defence expert, that there will be no opportunity to put those matters to Dr. Rickards, and the plaintiff potentially will be at a disadvantage in that regard.
 The defendants argue that any such disadvantage can be taken into consideration by arguments as to the weight of the expert’s evidence at the trial. I am not persuaded that that overcomes, first of all, the onus to convince me that a video conference would not be the appropriate avenue here and, secondly, the potential detriment to the plaintiff if something arose that was not contemplated.
 Thus, in all of the circumstances, I am not convinced that the application should go and the application is dismissed with costs to the plaintiff in the cause.
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