Earlier this year Mr. Justice Harris provided reasons in obiter setting out some concerns as to why parties should limit the use of deposition evidence at trial. This week, reasons for judgement were released considering a contested application for a witness to testify by way pre trial deposition. This is the first reported case I’m aware of dealing with such an application under the new Rules of Court.
In this week’s case (Seder v. ICBC) the Plaintiff was injured in a motor vehicle collision. ICBC spoke with the Plaintiff’s employer and wished to call her as a witness at trial. The employer lived in Alberta so ICBC asked for permission to conduct a pre-trial deposition and introduce that evidence at trial. The Plaintiff opposed this but was willing to accommodate the witness by allowing her to testify via video-link. ICBC did not agree to this compromise and brought an application for an order requiring the witness to attend a deposition.
Master Young dismissed ICBC’s application but did give the witness permission to testify via video-conferencing. In doing so the Court provided the following reasons:
 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.
 The former Rule 38 is essentially the same rule as the new Rule 7-8, with the exception that a new ground has been included at 7-8(3)(d) regarding the possibility of testifying at trial by video conferencing…
 In Abermin Corp. v. Granges Exploration Ltd.,  B.C.J. No. 1830, Mr. Justice McColl discussed the purpose and intent of Rule 38 shortly after it was incorporated into the Rules. The Rule, he said, is attempting to strike a balance between the fundamental principle that witnesses should testify live before the court and the preservation of evidence which might not be available at trial because it is not always possible to get witnesses, willingly or otherwise, before the courts. His Lordship said that Rule 38 intended to provide the parties with the opportunity to preserve and present evidence when there is a possibility that a witness would not otherwise be heard and thus adversely affect one of the litigants at trial. The emphasis was on the availability of the evidence, not the convenience of counsel.
 The mischief to avoid in interpreting the Rule, is that trial would become a “hodge-podge of deposition evidence along with viva voce evidence in the conduct of a trial merely to convenience counsel or indeed potential witnesses” (Abermin at p. 3)…
 Ms. Jacob is not a central witness. She is being called to give brief evidence relating to loss of earnings. It is not proportionate to pay three days’ travel expenses to have her testify for an hour and fly home the same day. This travel expense could be avoided by permitting her to attend at the trial by video conference. She is a cooperative witness, but out of an abundance of caution the third party still intends to subpoena her. The cost of the applications cannot be avoided if the third party wants to ensure her attendance. That cost would be incurred whether she attended for a deposition or for a trial.
 I have to keep in mind the problems with preparing defence evidence prior to the trial without a judge presiding, as articulated by Justice Harris in Byer. It strikes me that these problems which interfere with the effectiveness and usefulness of the evidence at trial should only be ordered in exceptional circumstances where the evidence will be lost if not recorded prior to trial.
 In cases such as this case before me with the most unexceptional facts, the proportionate procedure would be video conferencing.
 I dismiss the third party’s application.