IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101105

Docket: 38698

Registry:
Vernon

Between:

Griffith J.
Slaughter

Plaintiff

And

Ignatius
Sebastianus Sluys

Defendant

Before:
The Honourable Madam Justice Beames

Reasons for Judgment

[1]            
In this personal injury case, the plaintiff applies for leave to have
seven lay witnesses and four expert witnesses testify by videoconference. The
defendant says that to have such a large portion of crucial evidence in this
case heard by videoconference offends the principles of the new Rules
and offends the principles of fundamental justice.

[2]            
By way of background, the plaintiff was injured in a motor vehicle
accident which occurred on December 17, 2004, in Vernon, B.C. He commenced this
action on May 2, 2006, claiming damages for his pecuniary and non‑pecuniary
losses arising from the injuries he had suffered, including a traumatic brain
injury, a fractured arm, injury to his neck, and chronic pain.

[3]            
By court order, the issue of liability was severed, and it was heard by
another judge. The remaining issue is the assessment of damages, which is
scheduled to be tried in Vernon commencing April 11, 2011 for six weeks. I have
been assigned the case management judge.

[4]            
I am told that after the accident took place, the plaintiff returned to
Ontario. He had only been in Vernon for a short time before the accident, and
all of his family and community support were in and around Pembrooke, Ontario.
As a result, many of the lay witnesses he proposes to call with respect to the
quantum assessment are from Ontario. His treating physicians are also based in
Ontario, as are the doctors retained for the purpose of giving opinion evidence
at trial, save and except one doctor who practices in Vancouver.

[5]            
I have conducted two case management conferences since I was assigned
the case management of this matter. Counsel have provided me with lists of
witnesses,  a very brief description of the nature of the relationship between
the plaintiff and lay witnesses, those witnesses’ places of residence, and the
time estimates for direct and cross-examination of each witness.

[6]            
The witnesses the plaintiff seeks leave to have testify via videoconference,
with their relationship, place of residence, and most recent time estimates,
are as follows:

The experts in issue are:

[7]            
The plaintiff says that having the proposed witnesses testify by
videoconference would save approximately $50,000; would markedly reduce the
inconvenience experienced by the witnesses in testifying at the trial; and
would be in keeping with this court’s new Rules which promote efficiency
and proportionality. Further, the plaintiff says both the plaintiff’s counsel
and defence counsel have had an opportunity to interview the lay witnesses in
issue, who are the “not so important” and short witnesses, all of whom live at
some distance. He relies on s. 73(2) of the Evidence Act, which
provides that the court may allow a witness to testify by videoconference
unless the court is satisfied that receiving the evidence that way would be
contrary to the fundamental principles of justice. Section 73(3) sets out the
factors the court may consider, if one party objects, as follows:

(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.

It is the plaintiff’s submission that these factors all
weigh in favour of the witnesses in issue being permitted to testify via videoconference.

[8]            
The defendant says that s. 73(2) is intended to apply in relatively
rare circumstances, and to individual or a limited number of witnesses. He says
that there is no authority for what the plaintiff proposes, namely to call 11
of his 28 witnesses via videoconference, over an estimated 22 hours. He says
that five of the lay witnesses, whose evidence may bear on the largest
component of the plaintiff’s claim, his loss of opportunity to earn income, are
in fact key witnesses, rather than “not so important” witnesses. The defendant
says that credibility of the witnesses is a central issue, and that credibility
cannot adequately be assessed if the witnesses are called by way of
videoconference rather than being physically present in the courtroom. It is
the defendant’s position that the cost of having the witnesses attend in Vernon
for the trial pales in comparison to the multi‑million dollar claim being
advanced by the plaintiff. It is his position that it would be fundamentally
unfair to limit the defendant’s counsel’s ability to have a full and complete
cross-examination of the witnesses, which he says can only occur if the
witnesses are physically present in the courtroom. Of particular concern to the
defendant are the plaintiff’s expert witnesses who were specifically retained
for litigation purposes as opposed to being treating physicians. Those three
witnesses are Dr. Berry and Dr. Scher, both of whom practice in
Ontario, and Dr. Travlos, who practices in Vancouver. The defendant
asserts all three are important witnesses. They were retained after the action
had been commenced in Vernon, British Columbia, which, the defendant points
out, was the plaintiff’s choice. The defendant proposes, as an alternative to
the use of videoconferencing, that the evidence of the witnesses in Ontario be
taken by commission from a location in Ontario, with plaintiff’s counsel, defence,
and the court travelling to Ontario for that purpose.

[9]            
There is no question that the Rules of this province, enacted in
2010, have a new or at least renewed, emphasis on the just, speedy and
inexpensive determination of a proceeding on its merits, which involves a
consideration of proportionality. There is also no question that various forms
of technology have been employed on a more frequent basis recently, in all
court proceedings, including trials. Advances have been made in the quality of
communication via videoconferencing, which has all but eliminated the problems
often associated with videoconferencing in the early days of its use, which
involved time delays in the transmission and which in turn frequently resulted
in counsel and witnesses talking over each other and which made for a less than
satisfactory method of conducting both direct or cross examination. I have, in
the recent past, found videoconferencing to be an acceptable and satisfactory
method of receiving evidence from a witness, which has not inhibited assessment
of credibility or the finding of facts. Although at first blush 22 hours worth
of evidence via videoconference seems to be a significant amount of time, it
must be borne in mind that this trial is scheduled to last for six weeks, and
the proposed videoconferencing would consume but four days of the trial.

[10]        
I am not convinced, as submitted, that it would be “fundamentally unfair
to the defendant to deprive him of the opportunity to have witnesses properly
cross examined” in person in the courtroom. Proper and full cross examination
can take place even when witnesses are appearing via videoconferencing. In my
view, this is particularly so where the witnesses are experts and where
credibility per se is not in issue and it is also the case where the evidence a
witness may give is not overly contentious. On the other hand, the plaintiff
cannot, alone, determine which witnesses are “important” and therefore should
attend in person, and which witnesses are “not so important” and therefore
should be permitted to testify via videoconferencing.

[11]        
I am also mindful of the submission that cross examination of the
experts will be difficult if conducted via videoconferencing, as a result of
the number of documents each witness may be asked to review. However,
videoconferencing can be accompanied by equipment at each end of the
transmission that allows both the expert and the examiner to view the same
document. Further, the experts’ files are required, under the new Rules,
to be produced for review by opposing parties, on request, at least 14 days
before trial. File contents may be organized and numbered in such a way as to
minimize any concerns with respect to the use of documents during direct or
cross-examination via videoconferencing. I am satisfied that any need to refer
experts to documents can be satisfactorily accommodated and does not mean that
experts should not be permitted to testify via videoconferencing.

[12]        
Bearing all of the evidence and submissions of counsel in mind, and
attempting to balance the interests of the parties, I have concluded that the
following witnesses should be permitted to testify by videoconference: Mike Willems,
Frank Durant, Dr. Marshall, Dr. Stimac, Dr. Berry, Dr. Scher,
and Dr. Travlos. With respect to the remaining witnesses, each, as I
understand the submissions, has something to say about the plaintiff’s most
significant claim, his loss of opportunity to earn income, in that each either
works with or supervises the plaintiff in his current employment. Given their
relationships to the plaintiff, the possibility that their evidence will be
very contentious, and that none of them have provided the court with any
indication that they will be personally inconvenienced or suffer hardship as a
result of testifying in person in Vernon, they will be required to testify in
person if the plaintiff does indeed call their evidence at trial.

“A.J. Beames J.”