31 Jan Witnesses Allowed To Testify Via Video Conferencing

In the personal injury case of Singh v. Chad, 2018 BCSC 1860, the Plaintiff applied to the Court to allow two witnesses to testify at trial via video conferencing. The Defendants opposed the application.

The Plaintiff argued that the witnesses should be permitted to testify by video conference as they both lived and worked in New Delhi, India. The Plaintiff said that both witnesses were busy professionals and because each witness would only testify for approximately one hour, the cost and time for the witnesses to fly to Canada made this a “clear case” for video conferencing.

The Defendants, by contrast, argued that viva voce evidence was preferred and video conferencing should not be permitted when it was simply a matter of convenience.

Section 73 of the Evidence Act, R.S.B.C. 1996, c. 124 addresses when testimony of a witness at trial is permitted by video conferencing. That section provides:

Witness testifying by closed circuit television or other technology

73 (1) In this section:

“court” means the court, judge, justice or other presiding officer before whom a proceeding is held or taken;

“proceeding” means a proceeding in the Court of Appeal, the Supreme Court or the Provincial Court.

(2) A court may allow a witness to testify in a proceeding by means of closed circuit television or any other technology that allows the court, the parties and the witness to engage in simultaneous visual and oral communication, unless

(a) one of the parties satisfies the court that receiving the testimony in that manner would be contrary to the principles of fundamental justice, or

(b) the technology is not available for the proceeding.

(3) If a party objects to the court receiving evidence in the manner described in subsection (2), the court may consider any of the following circumstances:

(a) the location and personal circumstances of the witness;

(b) the costs that would be incurred if the witness had to be physically present;

(c) the nature of the evidence the witness is expected to give;

(d) any other circumstance the court considers appropriate.

(4) A party intending to call a witness to give evidence in a proceeding by means described in subsection (2) must

(a) give notice of that intention to the court before which the evidence is to be given and to all of the other parties, and

(b) pay all costs associated with the use of the technology unless otherwise ordered by the court.

(5) Notice must be given under subsection (4) (a)

(a) at least 5 days before the witness is scheduled to testify in the proceeding, or

(b) if the court considers it appropriate in the circumstances, within some shorter period specified by the court.

(6) The court must require evidence under subsection (2) to be given

(a) under oath in accordance with the law of British Columbia,

(b) under oath in accordance with the law in the place in which the witness is physically present, or

(c) in another manner that demonstrates that the witness understands that he or she must tell the truth.

(7) When a witness outside of British Columbia gives evidence under subsection (2), the evidence is deemed to be given in British Columbia, and given under oath in accordance with the law of British Columbia, for the purposes of the laws relating to evidence, procedure, perjury and contempt of court.

(8) Nothing in this section prevents a court from receiving evidence of a witness by means described in subsection (2) if the parties consent.

The Judge considered the factors in s. 73(3). In this case, the witnesses were in India. The Plaintiff advised that a flight from New Delhi to Vancouver was in excess of 21 hours, and cost more than $10,000 return for one adult flying first class. While the Defendants argued that an economy flight would be more cost-effective, the Judge accepted that any flight would still involve significant time and expense.

The witnesses were expected to give evidence regarding the observations they had made about the Plaintiff before and after the accident. The Plaintiff said that she expected each witness would only testify for approximately one hour. The Defendants advised that cross examination would likely take one hour for each witness.

The Judge decided that the Defendants had not satisfied her that it would be contrary to the principles of fundamental justice to allow the two witnesses to testify by video. Indeed, the converse was true. Requiring the witnesses to take flights in excess of 21 hours to give evidence for two hours would be contrary to principles of justice and could potentially impact the witnesses’ businesses. Allowing video conferencing made the proceedings more cost-effective and efficient. With the availability of video conferencing technology, the Judge did not see why the witnesses should be required to come to Vancouver personally.

The Judge concluded that the Plaintiff’s two witnesses should be permitted to give evidence at the trial by video conference. The order was subject to the discretion of the trial judge and that appropriate video conferencing facilities in India were available when the witnesses were scheduled to testify.