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

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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.

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