In Seder v. Douglas et al., the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages for pain and suffering. ICBC’S lawyer wished to call a witness at trial, however the witness lived outside the province. As such, ICBC’S lawyer wanted to conduct a pre-trial deposition, and tender the evidence at trial as such. The lawyer for the Plaintiff objected, but was willing to allow the witness to testify via video link, to which ICBC’S lawyer would not agree. The Court dismissed ICBC’S application, and ruled that the witness could testify via video conferencing.
 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.
 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).
 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.