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Above All Else, Be Reasonable

June 2012
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By D. Lynne Watt

A recent decision of the Ontario Superior Court of Justice, in the matter of Code Inc. v. Independent High Electoral Commission et al., reminds us that the reasonable position will usually win the day. We all know that judges and masters strive to do justice, to be fair and reasonable, and to craft judicious resolutions — but sometimes, in the heat of battle, we forget that and we insist on positions that may be “right” but, perhaps, not always reasonable. This case demonstrates the risk of that approach. It is also a judicial endorsement of the use of video conferencing for out-of-court examination of witnesses.

In Code Inc. v. Independent High Electoral Commission et al., 2012 ONSC 2208 (CanLII), Master Roger was called upon to choose between two alternate proposals for the conduct of cross-examinations of foreign witnesses.

The plaintiff, a Canadian corporation, commenced an action in Ontario for non-payment under a contract against two foreign defendants in Iran. The defendants contested the jurisdiction of the Ontario Court and brought a motion to stay the action on the basis of forum non conveniens. As part of their motion materials, the defendants filed affidavits from two affiants resident in Baghdad. The plaintiff sought to cross-examine the affiants on their affidavits and a dispute arose as to where the cross-examinations would take place.

Under the Ontario Rules, the place of examination and the procedure governing an examination of a person who resides outside of Ontario is at the discretion of the Court. There is no prima facie right of someone who resides outside of Ontario to be examined where he or she resides; similarly, there is no prima facie right to compel that person to travel to Ontario to be examined there. Normally counsel will confer and agree on where examinations will take place and who will pay for the costs of travel. If the parties cannot agree, then the matter can be brought before the Court for determination.

In Code Inc., the defendants proposed that cross-examinations be conducted via video conferencing at the defendants’ expense or, if the plaintiff insisted on attendance in Ottawa, then the plaintiff should pay for the defendants’ travel and accommodation costs. The plaintiff objected to conducting the examinations by way of video conferencing (logistical concerns), refused to travel to Baghdad to examine the affiants there (safety concerns), insisted that the examinations take place in Ottawa or London and insisted that the defendants pay their own costs to attend (on the grounds that they were not impecunious and there was a risk that if the plaintiff was successful in defeating the forum non conveniens motion, the defendants would not thereafter defend and the plaintiff might not be able to collect its costs from the defendants).

Master Roger confirmed that there is no presumption for or against video conferencing under the Rules. Each case has to be decided on its own facts and the Court has the discretion to fashion a process in order to secure the most just and convenient result.

Master Roger felt that the cost of travel ($10,000.00 +) and the time away from business for the affiants (three to five days for a half-day examination each) were unwarranted in the face of the acceptable, albeit not perfect, alternative of video conferencing. He did not accept the plaintiff’s reasons for objecting to video conferencing (language, time zones, the difficulty of putting documents to a witness onscreen, etc.) and said that these potential problems could be addressed by counsel working co-operatively together. He concluded that most of the concerns raised by the plaintiff about video conferencing could be addressed by “imaginative counsel making effective use of technology to arrive at a just, most expeditious and least expensive determination of the forum motion.”

He ordered the defendants to be responsible for the setup and costs of the video conferencing in Iraq and the plaintiff to be responsible for and pay the costs of the setup at the Ottawa end. His order also allowed the parties to come back before him if they could not agree on the details or if it turned out, after reasonable efforts, that acceptable video conferencing could not be arranged in Iraq.

The plaintiff’s insistence on in-person examinations cost the plaintiff $4,734.40 in costs awarded to the defendants (together, of course, with likely a much bigger bill from their own lawyer for bringing and arguing the motion). In retrospect, the plaintiff would have been better off agreeing to at least try cross-examination by video conference and then applying to the Court for assistance if it proved to be unworkable, with costs left to the judge hearing the forum motion.

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