Released May 11, 2016 | Full Decision [CanLII]
The Court ordered that it was just and convenient to conduct examinations for discovery by way of video conference based on Rule 1.04 and Rule 37.04. The Midland decision clearly states that where a party resides outside of Ontario, neither party has a prima facie right with respect to the place of examination. Equally, there is no presumption for or against video conferencing. The test for determining the location of examinations is what is just and convenient for both parties based on circumstances of the case.
The Plaintiff’s claim arose from a slip and fall while incarcerated at the Pittsburgh Institution in Kingston Ontario. After release, the Plaintiff (an American citizen) was escorted from Canada to the United States. He now resides in Georgia but was unable to attend Ottawa for examinations for discovery because he could not cross the boarder due to his criminal record.
The Plaintiff sought video conferencing as a cost-effective approach. In person examinations in Georgia were expected to exceed $1200 in disbursements plus two days of travel time.
The Defendant sought to examine the Plaintiff in person to assess credibility. The Defendant failed to adduce any evidence that video conferencing technology would not allow for the same level of scrutiny as an examination in person. There was no evidence presented demonstrating a disadvantage, that the Plaintiff lacked credibility, or evidence of why video conferencing was inappropriate.
The Court rejected the “compromise” that the Defendant would examine the Plaintiff in person and that Plaintiff’s counsel could attend by video conference. For the proceedings to be fair and just, both parties should either be in the room with the Plaintiff or both appearing by video in order for the playing field to be level and perceived as such by the Plaintiff.
Read the full decision on CanLII
