IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160203

Docket: M157034

Registry:
New Westminster

Between:

Kulwant Kaur Johal

Plaintiff

And

Rachel Radek, Katherine
Joyce Keras also known as
Katherine Keras, Katherine Joyce Keras d.b.a.
Traffic Pro Services also known as Pro-Safe Traffic Service,
Ted W. Astells, Ted W. Astells d.b.a.
Traffic Pro Services also known as Pro-Safe Traffic Service
and West-Can Leasing Ltd.

Defendants

Before:
Master Muir

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: This is an application by the defendants for an order
that their expert witness, Dr. Robin Rickards, be examined on oath before
a court reporter by video deposition on February 5, 2016, the Friday prior
to the trial of this matter, and that the record of the examination be made
available to be tendered as evidence at trial.

[2]            
The action arises out of a motor vehicle accident on May 30, 2012. Liability
has been admitted. There was a trial management conference on January 6,
2016 and the matter remains on the trial list scheduled for trial February 15,
2016.

[3]            
The plaintiff’s counsel was advised by letter of October 21, 2015
that a scheduled medical examination of the plaintiff had been arranged for November 5,
2015 with Dr. Rickards.

[4]            
On October 26, 2015, a retainer letter was sent to Dr. Rickards
setting out the terms of his retainer and the opinion requested, and as a part
of that, he was advised:

This matter is scheduled to proceed to trial on February 15,
2016, for 5 days. You may be required to attend at trial for one or more of
those days. If you know now or become aware later that you will not be able to
attend on those dates, please advise us immediately.

[Emphasis in original.]

[5]            
By letter of October 27, 2015, plaintiff’s counsel agreed to the
medical examination on various terms, including the term that:

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;

[6]            
On December 2, 2015, after his opinion report was served on November 20,
2015, counsel for the plaintiff advised counsel for the defendants that Dr. Rickards
would be required for cross-examination at trial.

[7]            
On January 14, 2016, counsel for the plaintiff made inquiries about
whether or not there was going to be an addendum report from Dr. Rickards,
saying, “I assume Dr. Rickards will testify on Thursday afternoon, or
Friday morning.”

[8]            
On January 18, 2016, an addendum report was sought by counsel for
the defendants from Dr. Rickards. Dr. Rickards was again reminded
that the trial of this matter was scheduled to proceed on February 15, 2016
for five days, and again he was told he may be required to attend at trial.
I note he was not told specifically that he was required to attend for
cross-examination. I do not know whether that was conveyed to him in a
separate piece of correspondence or not.

[9]            
In any event, there is no doubt that Dr. Rickards was put on notice
and as a professional witness, if I can put it that way, as an expert who
is commonly retained to testify regarding his expert opinion, I would
assume that he is aware of his professional obligations in that regard.

[10]        
On January 22, 2016, for the first time, counsel for the defendants
advised that Dr. Rickards was, first of all, preparing the addendum report
and then:

As for his trial schedule, he will need a pre-trial
deposition as he will be in South America that entire week as well as the week
prior.

Kindly provide your dates for
same

I assume it means “deposition” instead of “disposition.”

[11]        
There is no evidence from Dr. Rickards at all. The only evidence
I have from the defendants is that of Roxanne Dhanpaul, a paralegal.

[12]        
The evidence regarding Dr. Rickards is triple hearsay. It is:

I am informed by Ms. Carey
and verily believe that the office of Dr. Rickards contacted Ms. Carey
on January 22, 2016 by telephone and advised that Dr. Rickards was
unable to attend the trial of this matter as he will be in Colombia for
personal/family reasons during the week of February 15, 2016. As a result,
Dr. Rickards will not be available for cross-examination by the Plaintiff
at trial.

[13]        
So first of all, we have no idea when this trip of Dr. Rickards was
planned. We have no idea why this trip was necessary and we have no evidence
from Dr. Rickards, as I said, at all.

[14]        
The plaintiff opposes the application and says that if Dr. Rickards
is unavailable, the most just manner of proceeding is for Dr. Rickards to
attend the trial by video conference at the appropriate time and, in their
materials, the plaintiff provides evidence of video conferencing facilities
both in Bogotá, Colombia, and Medellín, Colombia.

[15]        
The defendants’ submissions were that they should not be deprived of the
evidence of Dr. Rickards by refusing an application for a video deposition.
But there is no evidence that they will be so deprived. There is no evidence
that Dr. Rickards could not be available for a video conference at some
location in Colombia and, indeed, for that matter, there is no evidence that he
could not fly back to attend the trial for the Friday of the scheduled trial
dates.

[16]        
The test with respect to video deposition is set out in Rule 7-8(3) of
the Supreme Court Civil Rules, Grounds for the Order, I am directed:

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.

[17]        
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.

[18]        
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, at para. 27 where Her
Ladyship referenced the following:

[27]      In Nybo v. Kralj, 2010 BCSC 674, 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.

[19]        
That solution was also addressed in Campbell v. McDougall, 2011
BCSC 1242, a decision of Master Bouck, at paras. 24 and 25:

[24]      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.

[25]      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:

[26]      There is a nine-hour
time difference between Victoria and Cape Town.

[20]        
Here, I have no evidence, as I have said repeatedly, from Dr. Rickards.
There is no evidence he is unavailable for a video conference. The time
difference between here and Colombia, I am advised, is three hours.

[21]        
The dangers of video depositions have been referred to in many cases, one
of such is Byer v. Mills, 2011 BCSC 158. 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:

[53]      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

[54]      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

[55]      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.

[22]        
The defendant relied on a decision of Mr. Justice Willcock in Gill
v. A & P Growers Ltd., 2011 BCSC 1421. 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.

[23]        
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.

[24]        
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.

[25]        
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.

[26]        
MS. SIDHU:  Your Honour, just with respect to costs, it is a fast track,
so can we get costs for the day at $1,100 plus tax? It was a short leave
application, kind of brought at the last minute.

[27]        
THE COURT:  Right. Do you wish to say anything about that, Ms. Carey?

[28]        
MS. CAREY:  Well, I hadn’t — I think that’s — the amount
suggested by my friend is excessive, given that the total fast track cost would
be $6,500 for the entire preparation of the matter from start to finish. Perhaps
we can leave that for a taxation hearing, unless you are inclined to order a
dollar figure, but I think the amount proposed by my friend is excessive.

[29]        
MS. SIDHU:  Your Honour, there is precedent for fast track matters that
have contested chambers application where an order for costs are made because
it would not be fair to the plaintiff to restrict them to $6,500. Then that
opens the door for defence counsel to make as many applications and not —

[30]        
THE COURT:  Yes, I understand. In my view, it is appropriate
regardless of the fact that it is a fast track action, to order lump sum costs.

[31]        
I will order $1,000 inclusive of disbursements and taxes given that
counsel have been here virtually the entire day.

[32]        
THE CLERK:  And, Your Honour, so costs to the plaintiff —

[33]        
THE COURT:  Yes.

[34]        
THE CLERK:  — lump sum costs $1,000 inclusive of disbursements and taxes;
is it forthwith?

[35]        
THE COURT:  No, not forthwith. Thank you.

“Master Muir”