The Low Threshold For Video-Conference Testimony in BC Injury Trials


When injury claims go to trial witnesses may live far from the Court house.  These distances can make it very inconvenient for Plaintiffs to assemble all the necessary people to prove their case.  Fortunately, the BC Evidence Act allows witnesses to give their evidence, in certain circumstances, by way of video-conference.   Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating that such orders can be routinely made.
In today’s case (Nybo v. Kralj) the Plaintiff was injured in an accident.  Her claim went to trial before a Jury in Vancouver.  She wished to have her sister (who lived in Penticton), her boyfriend at the time of the accident (who lived in Washington) and her colleague (who lived in Ontario) to give “before and after” evidence to help illustrate the impact of the accident related injuries on her life.
The Plaintiff applied to have these witnesses testify by video conference.  The Defendant opposed.
The Plaintiff’s lawyer did not present any evidence in support of the application.  The witnesses were not subpoenaed.  The witnesses did not even swear an affidavit explaining why they could not (or didn’t want to) attend court.  Despite all of the this Madam Justice Dillon ordered that they could testify by video.  In reaching this conclusion the Court reasoned as follows:

[8] Testimony of a witness at trial by videoconferencing is provided for under s. 73 of the Evidence Act, R.S.B.C. 1996, c. 124. The pertinent sub-sections of s. 73 say:

(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….

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

11]       (The BC Evidence Act) 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. Factors to consider are set out in s. 73(3) of the Evidence Act.

[12] In this case, there is no suggestion that cross-examination will be adversely affected or that the evidence is of such importance that actual presence of the witnesses is required. The reasons for not consenting relate to the reasons given for the witnesses not attending which are, really, that they do not want to leave work and family commitments in order to testify. While such a common reason may have held significant weight in the past, I consider that s. 73 of the Evidence Act favours use of the technology with personal circumstances of the witness and location as only one factor to consider. Here, the witnesses will give relevant, although not crucial evidence. They are located significantly away from this courthouse, although Penticton is within reasonable distance. Given that the onus is on the non-consenting party here, the balance favours granting use of the technology for all three witnesses even though this is a jury trial. If there had been other factors affecting the Penticton witness in favour of the defendant, I may not have granted the order in her situation given the general principle. However, the balance favours the plaintiff overall in these circumstances.

BC Evidence Act, Madam Justice Dillon, Nybo v. Kralj, subpoena, Testifying by Video link, trial, videoconference, witnesses

Comments (43)

  • I simply want to tell you that I am all new to blogging and site-building and really savored you’re blog site. Likely I’m going to bookmark your blog . You absolutely have exceptional stories. Appreciate it for sharing your website page.

  • Thanks for the sensible critique. Me and my neighbor were just preparing to do a little research about this. We got a grab a book from our area library but I think I learned more from this post. I’m very glad to see such fantastic information being shared freely out there.

  • Can I just say what a relief to search out somebody who actually knows what theyre speaking about on the internet. You undoubtedly know the right way to bring a difficulty to gentle and make it important. More people have to read this and perceive this aspect of the story. I cant believe youre no more in style since you undoubtedly have the gift.

  • certainly like your web-site but you have to take a look at the spelling on quite a few of your posts. A number of them are rife with spelling problems and I to find it very troublesome to inform the reality on the other hand I will certainly come again again.

  • I’ve been browsing online more than 3 hours today, yet I never found any interesting article like yours. It is pretty worth enough for me. Personally, if all site owners and bloggers made good content as you did, the internet will be much more useful than ever before.

  • Hi there! Quick question that’s entirely off topic. Do you know how to make your site mobile friendly? My website looks weird when viewing from my iphone. I’m trying to find a theme or plugin that might be able to resolve this problem. If you have any suggestions, please share. Thank you!

  • Generally I don’t read article on blogs, but I would like to say that this write-up very forced me to try and do so! Your writing style has been amazed me. Thanks, very nice post.

  • Great awesome issues here. I¡¦m very glad to see your post. Thank you a lot and i am having a look forward to contact you. Will you please drop me a mail?

  • Whats up very cool website!! Man .. Excellent .. Superb .. I’ll bookmark your site and take the feeds additionally…I am glad to search out a lot of helpful information here within the submit, we want develop extra techniques on this regard, thanks for sharing.

  • Great work! This is the type of information that are meant to be shared across the web. Shame on the search engines for no longer positioning this put up higher! Come on over and discuss with my web site . Thank you =)

  • I like the valuable information you provide in your articles. I’ll bookmark your blog and check again here regularly. I’m quite certain I’ll learn plenty of new stuff right here! Best of luck for the next!

  • Increasing impression interested expression he my at. Respect invited request charmed me warrant to. Expect no pretty as do though so genius afraid cousin. Girl when of ye snug poor draw. Mistake totally of in chiefly. Justice visitor him entered for. Continue delicate as unlocked entirely mr relation diverted in. Known not end fully being style house. An whom down kept lain name so at easy.

  • I like the valuable information you provide in your articles. I’ll bookmark your weblog and check again here frequently. I am quite sure I’ll learn plenty of new stuff right here! Good luck for the next!

  • You actually make it appear really easy together with your presentation but I find this topic to be actually one thing which I think I would by no means understand. It sort of feels too complicated and very large for me. I am having a look ahead on your next submit, I’ll attempt to get the cling of it!

  • It¡¦s actually a cool and useful piece of info. I am satisfied that you just shared this helpful information with us. Please keep us informed like this. Thank you for sharing.

  • Wonderful beat ! I wish to apprentice while you amend your web site, how could i subscribe for a blog site? The account helped me a acceptable deal. I had been tiny bit acquainted of this your broadcast offered bright clear idea

  • I’m just writing to let you know what a impressive discovery my cousin’s child went through going through yuor web blog. She noticed lots of issues, not to mention what it is like to have a marvelous giving style to make many people clearly have an understanding of selected very confusing topics. You really exceeded visitors’ expectations. Thanks for producing those warm and helpful, trustworthy, educational and as well as unique tips on your topic to Mary.

  • I think other site proprietors should take this web site as an model, very clean and wonderful user genial style and design, as well as the content. You are an expert in this topic!

  • Hello, i read your blog from time to time and i own a similar one and i was just wondering if you get a lot of spam comments? If so how do you stop it, any plugin or anything you can suggest? I get so much lately it’s driving me crazy so any support is very much appreciated.

  • I am also writing to make you know what a perfect encounter our daughter experienced going through your web page. She learned a lot of things, which include how it is like to possess a marvelous teaching style to get other individuals with ease learn about some multifaceted subject areas. You undoubtedly exceeded my expected results. Thank you for displaying such good, dependable, informative and fun tips about that topic to Tanya.

  • I do love the manner in which you have presented this specific concern plus it really does provide me some fodder for consideration. However, coming from what I have personally seen, I just simply trust as the actual opinions stack on that folks stay on issue and in no way embark upon a tirade involving some other news du jour. All the same, thank you for this fantastic point and even though I do not necessarily go along with the idea in totality, I regard the point of view.

  • You really make it seem so easy with your presentation but I find this topic to be actually something that I think I would never understand. It seems too complicated and very broad for me. I’m looking forward for your next post, I will try to get the hang of it!

  • hey there and thank you for your info – I’ve certainly picked up something new from right here. I did however expertise several technical points using this website, since I experienced to reload the web site many times previous to I could get it to load properly. I had been wondering if your web host is OK? Not that I am complaining, but slow loading instances times will very frequently affect your placement in google and could damage your high quality score if advertising and marketing with Adwords. Anyway I am adding this RSS to my email and could look out for much more of your respective intriguing content. Ensure that you update this again soon..

  • Howdy would you mind sharing which blog platform you’re working with? I’m going to start my own blog soon but I’m having a tough time selecting between BlogEngine/Wordpress/B2evolution and Drupal. The reason I ask is because your layout seems different then most blogs and I’m looking for something unique. P.S My apologies for getting off-topic but I had to ask!

  • What’s Happening i am new to this, I stumbled upon this I’ve discovered It positively helpful and it has aided me out loads. I’m hoping to give a contribution & help other customers like its aided me. Great job.

  • Thank you for the sensible critique. Me & my neighbor were just preparing to do a little research on this. We got a grab a book from our area library but I think I learned more clear from this post. I’m very glad to see such excellent info being shared freely out there.

Comments are closed.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer