IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110916

Docket: 09 2673

Registry:
Victoria

Between:

Alana Campbell
also known as Alana Fishkin
also known as Alana James

Plaintiff

And:

Nancy Louise McDougall

Defendant

Before:
Master Bouck

Reasons for Judgment

INTRODUCTION

[1]          
In a notice of application filed June 8, 2011, the defendant seeks
orders with respect to production of documents, the plaintiff’s attendance at
an examination for discovery and the use of deposition evidence at trial.

[2]          
The parties were able to reach an agreement regarding document
production. That left the following issues to be determined:

a. whether the plaintiff was
required to attend a continuation of an examination for discovery for 2½ hours
after having already been examined for approximately 11 hours; and

b. whether one of the defendant’s
expert witnesses, Dr. Maloon, could be deposed in advance of trial.

[3]          
The deposition of Dr. Maloon was scheduled to proceed on September 8,
2011.

[4]          
At the conclusion of submissions, I ordered the plaintiff to attend the
continuation of her examination for discovery. However, the application seeking
leave to have Dr. Maloon deposed in advance of trial was dismissed. Given the
mixed result, costs were ordered in the cause.

[5]          
The parties were advised that these reasons would follow.

THE FACTS

[6]          
The plaintiff is a 34-year-old non-practising lawyer who is alleged to
have suffered physical and cognitive impairment following two motor vehicle
accidents.

[7]          
The two accidents occurred on January 9, 2006 and March 27, 2008,
respectively. Separate actions were commenced by the plaintiff with respect to
each accident. The actions are to be tried at the same time before a judge and
jury commencing February 6, 2012. The parties have reserved 25 days for trial.

[8]          
This proceeding relates to the second accident. Mr. D. McDonagh acts for
the defence in the first action. However, Ms. Stevens is lead counsel in the
defence of both actions, including having conduct of the examination for
discovery of the plaintiff.

[9]          
The parties agree that the plaintiff’s claim is complex. The medical
evidence is described as consuming five binders. Opinion evidence has been
obtained from several experts, including orthopods and psychiatrists. The
plaintiff has sought a wide variety of treatment for her complaints. Ms.
Campbell’s health for the 14-year period preceding the first accident is under
scrutiny.

[10]       
There is very little agreement between the medical experts regarding
both causation and the prognosis for Ms. Campbell’s complaints.

[11]       
The defence theory is that the plaintiff suffers from a syndrome
“somewhere between” a Somatoform and Factitious disorder. The syndrome compels
Ms. Campbell to seek medical treatment even if no objective findings of
illness or injury result. Ms. Campbell trained and worked as a nurse before
obtaining her law degree. The defence suggests that medical knowledge obtained
in that line of work contributes to the disorder. The defence experts suggest
that the disorder is long-standing and unrelated to either of the motor vehicle
accidents.

[12]       
Needless to say, Ms. Campbell’s credibility will be very much at issue
at trial.

[13]       
The plaintiff alleges that she is unable to carry out work as a lawyer
because of the injuries suffered in these accidents. Although Ms. Campbell’s
claim is yet to be quantified, the defence expects that the claim for loss of
earning capacity alone will be very significant: see Danicek v. Alexander
Holburn Beaudin & Lang, 2010 BCSC 1111.

[14]       
Ms. Campbell was first examined for discovery in May 2010. The
examination was scheduled for one day. Ms. Campbell complained of fatigue in
the afternoon and the examination was discontinued after approximately 3½ hours.

[15]       
It was agreed that Ms. Stevens could continue the examination of the
plaintiff in October 2010. No time restrictions on that examination were
discussed between counsel. The examination proceeded for one full day.

[16]       
The areas covered on the examination ranged from the plaintiff’s
pre-accident medical history, to sporting activities, to efforts to find work.
On the last topic, the plaintiff left private practice following the accidents
and had yet to find any other form of employment despite sending out numerous
applications to the public service and working with a head-hunter agency.

[17]       
The defence has now been advised that the plaintiff was recently hired
by the Ministry of Health in a non-legal capacity.

[18]       
In addition, since October 2010, the defendant has received additional
medical information from plaintiff’s counsel.

[19]       
Ms. Stevens asked that the plaintiff attend for a continuation of her
examination to be questioned on the new employment as well as the information
revealed in recently delivered medical records. Plaintiff’s counsel declined to
produce the plaintiff on the basis that the defendant had already received more
than the seven hours of examination time allotted under Rule 7-2 (2) of the Supreme
Court Civil Rules (“SCCR”).

[20]       
In the meantime, the plaintiff underwent an independent medical
examination by Dr. S. Maloon, an orthopaedic surgeon practicing in Surrey, B.C.
That examination was conducted on February 21, 2011, and a report issued the
same day.

[21]       
The plaintiff takes issue with the admissibility of Dr. Maloon’s report
in its entirety. However, if the report is admitted into evidence, plaintiff’s
counsel wishes to cross-examine the doctor at trial.

[22]       
Dr. Maloon was aware of the February 2012 trial date when he agreed to
examine the plaintiff and produce a report. However, at that same time, the
doctor was awaiting approval to take a six-month sabbatical from his practice.
That approval was granted in March 2011. Dr. Maloon secured a locum and made
the decision to go to southern Africa to work and teach for the period of October 1, 2011
to March 31, 2012.

[23]       
Defence counsel was advised of Dr. Maloon’s plans in April 2011.
Arrangements were made to have Dr. Maloon attend a deposition in
September 2011. However, plaintiff’s counsel would not consent to
Dr. Maloon’s evidence being taken by deposition, hence this application.

[24]       
Plaintiff’s counsel proposes that Dr. Maloon attend trial via
videoconferencing from southern 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”.

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

[27]       
In response to Dr. Maloon’s affidavit, the plaintiff presents evidence
of the accessibility to videoconferencing networks in southern Africa generally
and Cape Town in particular.

[28]       
The defence has retained another orthopaedic surgeon although the
intention is to rely on Dr. Maloon’s report at trial.

DISCUSSION

A. The continuation
of the plaintiff’s examination for discovery

[29]       
Just prior to the application proceeding, Mr. Cameron was advised that
Mr. McDonagh was not intending to examine the plaintiff in the first
action. That advice “softened” the plaintiff’s objection to attending the
proposed continuation. The plaintiff’s primary concern is that she not be
subjected to an additional seven hours of examination by defence counsel in the
other action.

[30]       
With the additional 2½ hours of examination requested by the defendant
in this application, the plaintiff will have been examined for about 13 hours.

[31]       
Among the legal issues canvassed on this application were the
retroactive application of the SCCR and the concept of proportionality
as it relates to granting a party more time to complete an examination for
discovery. The arguments were careful, helpful and will no doubt feature in
many future applications. However, for the purposes of this application, an
analysis of those arguments is not necessary — with the possible exception of
the proportionality concept.

[32]       
In the end, the plaintiff could be required to undergo up to 14 hours of
an examination under Rule 7-2 without the defence having to obtain leave of the
court.

[33]       
In this case, the defence has chosen to have one counsel conduct an
examination, but effectively with respect to both actions.

[34]       
There is a sound basis for requesting the “additional” examination time,
particularly with respect to the plaintiff’s new employment status. While it
seems unlikely that the court would grant leave to exceed the specified hour allotment
simply when some new information comes to light, the plaintiff’s earning
abilities and capacity forms a significant part of the overall claim. A very large
monetary amount for that loss will probably be advanced. An additional 2½ hours
(and still less than the allowable 14 hours) examination time is not out of
proportion to the amount involved in this proceeding.

B. Dr. Maloon’s
Deposition

[35]       
The plaintiff is particularly opposed to Dr. Maloon’s evidence being
presented by way of video deposition. On this issue, a more expansive analysis
of the law is required. The decision to dismiss the application for the video
deposition was made despite my reservations that the videoconferencing may
not be as simply accessed and utilized as the plaintiff suggests.

[36]       
Rule 7-8 governs the allowance of depositions in a proceeding. The
pertinent sections of that Rule are as follows:

Rule
7-8 — Depositions

Examination of person

(1)  By consent of the parties of record or by order of
the court, a person may be examined on oath before or during trial in order
that the record of the examination may be available to be tendered as evidence
at the trial.

Examination of person

(2)  An examination under subrule (1) may be conducted
before an official reporter or any other person as the court may direct.

Grounds for order

(3)  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.

(My emphasis.)

…

Mode of examination

(14)  The examining party must conduct a direct
examination of the witness and the witness is subject to cross-examination and
re-examination.

Objection to question

(15)  If an objection is made to a question put to a
witness in an examination under this rule,

(a) the question and the
objection must be taken down by the official reporter,

(b) the validity of the
objection may, on application, be decided by the court, and

(c) the court may, on an
application referred to in paragraph (b), order the witness to submit to
further examination.

Recording of deposition
evidence

(16)  Unless otherwise ordered, an examination under
this rule must be recorded by the person authorized under subrule (2) to
conduct the examination

(a) in the form of questions
and answers, or

(b) on a video recording.

[37]       
In this instance, the defendant proposes that Dr. Maloon’s evidence be
recorded by video.

[38]       
The use of deposition evidence at trial is an exception to the rule
requiring a witness to testify orally and in open court: Rule 12-5(27). The SCCR
does not provide any special provisions for the use of deposition evidence from
experts.

[39]       
Accordingly, in the exercise of its discretion, the court must consider
all of the factors under Rule 7-8(3).

Rule 7-8(3)(a) – The convenience
of the person sought to be examined

[40]       
The plaintiff argues that Dr. Maloon will not be greatly inconvenienced
by having to provide his evidence by way of videoconferencing from Cape Town or
another possible location in southern Africa. Mr. Cameron observes that Cape Town
is a sophisticated metropolis of which Dr. Maloon will have some familiarity,
having taken medical training in the city. Plaintiff’s counsel argues that the
doctor would need to take time out of his practice and thus be inconvenienced
whether attending trial in person or by way of videoconferencing.

[41]       
Furthermore, in this age of ever advancing technology, Dr. Maloon could
access the plaintiff’s chart and other relevant information electronically on a
laptop or desktop computer.

[42]       
Mr. Cameron also suggests that all efforts will be made by the plaintiff
to accommodate the nine-hour time difference and Dr. Maloon’s schedule,
possibly resulting in the interruption of the plaintiff’s case.

[43]       
While I accept that Dr. Maloon will have the ability to access videoconferencing
facilities and that the plaintiff must accommodate Dr. Maloon’s attendance
at trial (subject to the trial judge’s discretion, of course) convenience
favours Dr. Maloon attending the scheduled September 8, 2011 deposition.

Rule
7-8(3)(b) The possibility the person may be unavailable to testify at trial by
reason of death, infirmity, sickness or absence

[44]       
Again, this factor favours Dr. Maloon attending the video deposition
scheduled to take place before his departure to Africa.

Rule
7-8(3)(c) The possibility the person will be beyond the jurisdiction of the
court at the time of trial

[45]       
Obviously, Dr. Maloon will be beyond the jurisdiction of the court in
February 2012.

Rule
7-8(3)(d) The possibility and desirability of having the person testify at
trial by videoconferencing or other electronic means

[46]       
Here, the interests of justice and ensuring a fair trial favour requiring
Dr. Maloon to attend by videoconferencing, given the desirability for the
court to receive evidence “live” as opposed to the use of a deposition video
recording or transcript.

[47]       
The predecessor to Rule 7-8 was Rule 38 of the Rules of Court.
The language in these Rules mirror each other except for the new
consideration of the possibility and desirability of having a witness testify
by videoconferencing: Seder v. Insurance Corporation of British Columbia, 2011
BCSC 823 at para. 4.

[48]       
The introduction of this factor reflects a recognition by the Lieutenant
Governor-in-Council that modern technology will allow a witness outside of
the court’s jurisdiction to provide live and simultaneous evidence — in
effect, to be in open court.

[49]       
Indeed, in Nybo v. Kralji, 2010 BCSC 674, the court
decided that the onus is on the party resisting the use of videoconferencing at
trial to demonstrate that “receiving testimony in that manner would be contrary
to the principles of fundamental justice”: para. 11.

[50]       
The plaintiff submits that the principles of fundamental justice will
only be met if Dr. Maloon is required to testify by videoconferencing, rather
than by deposition.

[51]       
In Byer v. Mills, 2011 BCSC 158, the court commented on the use
of deposition evidence at trial. The majority of the evidence presented by the
defence was taken by deposition before the trial began, with the consent of the
plaintiff. The deposition evidence was from lay witnesses who resided elsewhere
in the province and presented in that manner so as to avoid the inconvenience
of those witnesses travelling to Vancouver for trial.

[52]       
In an appendix to the court’s reasons for judgment, Harris J. made the
following observations:

f)  There are further difficulties inherent
in taking evidence by deposition. The evidence is not taken live and its
receipt as trial evidence is not controlled by the trial judge as the evidence
is being given. Objections may be made, as occurred in this case. Inevitably,
the objection is made and left on the record. The witness then provides the
evidence to which there is an objection, subject to a later ruling.

g)  This seems to me to be unsatisfactory.
It is preferable that objections be ruled on before the evidence is given for a
number of reasons. First, if the objection is upheld, a witness does not spend
time answering improper questions. Where several witnesses are testifying about
the same matter, a ruling at the outset will limit the scope of the evidence of
all the subsequent witnesses. Secondly, it is not uncommon for counsel to frame
questions in an objectionable manner, even though there are ways properly to
elicit the evidence counsel is seeking. It is far better for the court to have
the opportunity to ensure that questions are properly framed and evidence
properly received than to try to "unscramble an omelette" after the
fact. This is not just a practical issue. Often the way in which evidence is
elicited can affect the weight it is entitled to receive. There is a risk of
substantive prejudice to the parties if the trial judge is denied the
opportunity at the time it is given to ensure that evidence is properly
received.

h)  Finally, the trial judge has an
important additional role to play in controlling the trial process. It is not
uncommon for a trial judge to be called on during cross-examination, either at
the request of counsel or on his or her own initiative, to control the conduct
of the cross-examination. For example, it may be necessary to decide how much
of a prior allegedly inconsistent statement ought properly to be put to a
witness. That is a decision that should be made at the time the witness is
confronted with the statement. Taking evidence by deposition necessarily
deprives the trial judge of an essential judicial function. Doing so is fraught
with risks to the trial process and risks substantive prejudice to the parties.

i)  I appreciate the Civil Rules permit
depositions to be taken by consent. In my view, the purpose of allowing this to
occur by consent is to obviate the need for an order where it is clear that the
circumstances exist that would lead a court to make an order. Generally, the
party applying to take evidence by deposition has a burden to meet to justify
departing from the general rule that evidence be given live. I will not
rehearse the law on this point. But I do not think the drafters of the Civil
Rules intended to encourage a practice that is inconsistent with conventional
trial practice.

j)  It follows
from my comments above that I would discourage counsel from electing to resort
to taking depositions by consent unless there are pressing reasons to do so. If
there are legitimate concerns about cost and convenience, there are provisions
permitting taking evidence by video conference. At least then the evidence is
taken live.

[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: para.
5.

[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: Seder v. Insurance Corporation of British Columbia,
supra.

[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.

[56]       
It is fairly easy to anticipate areas of cross-examination where
objections might be raised by the defence. The court will then be asked to rule
on the objections at trial in Dr. Maloon’s absence. The plaintiff will not have
the opportunity to cross-examine Dr. Maloon on issues arising from evidence led
at trial, or garnered through the cross-examination of the plaintiff’s own
experts.

[57]       
The concerns raised by Mr. Justice Harris in Byer v. Mills are
reasonably anticipated in this case. It is desirable that Dr. Maloon testify in
open court; videoconferencing offers this opportunity.

[58]       
The defence has not provided any evidence to contradict the plaintiff’s
evidence as to the availability of videoconferencing technology in southern
Africa. How that videoconferencing will be set up is yet to be determined. Nonetheless,
the criteria under Rule 7-8(1)(d) is the possibility of the use of
videoconferencing.

[59]       
Another factor to consider here is that Dr. Maloon was aware of the
trial date and the possibility of his sabbatical when he agreed to perform this
independent medical examination. While the court would never discourage or be
critical of the terms of the sabbatical taken by Dr. Maloon, the consequences
of that sabbatical should not trump the objective of achieving a fair trial in
this matter.

[60]       
Finally, it should be noted that the court’s order is simply to dismiss
the application to have Dr. Maloon attend at a deposition on September 8, 2011.
The order will not state that Dr. Maloon’s evidence must be provided by way of videoconferencing
although that appears to be the parties’ intention as neither wishes to disrupt
Dr. Maloon’s sabbatical by flying him to Victoria for a day or two of testimony:
Rule 7-8(3)(e).

SUMMARY

[61]       
In summary,

a. the relief sought under paragraphs
1, 2 and 3 of the plaintiff’s notice of application is adjourned generally, the
parties having consented to production of documents;

b. the plaintiff will attend a
further examination for discovery lasting no longer than 2½ hours to take place
in the fall of 2011 in order to answer questions pertaining to matters at issue
in this action; and

c. The application to depose Dr.
Maloon on September 8, 2011, is dismissed.

[62]       
Costs of the application will be in the cause.

                   “C.P.
Bouck”                   

Master
C. P. Bouck