Court Dismisses ICBC’S Application For Pre-Trial Video Deposition Of Expert Witness

In Johal v. Radek, the Plaintiff was injured in a motor vehicle accident, and consequently sued for damages for pain and suffering, as well as various other types of damages. Liability was admitted by ICBC’S lawyer on behalf of the Defendant.

 

Shortly before trial, an application was brought by ICBC’S lawyer for an order that one of the Defendant’s expert witnesses be examined under oath before a court reporter by video deposition shortly before trial, and further that the examination be available as evidence at trial.

 

After counsel for the Plaintiff was served with the expert report, she advised ICBC’S lawyer that the expert would be required for cross-examination at trial. At a later point in time, ICBC’S lawyer advised counsel for the Plaintiff that a pre-trial deposition would be required, as the expert was going to be out of the country during the week of the trial.

 

The Court noted that there was no evidence whatsoever from the expert himself in support of the application, and that the only evidence was from a paralegal, which the Court regarded as triple hearsay.

 

Counsel for the Plaintiff opposed the application for the pre-trial deposition, arguing that the most just solution would be for the expert to attend the trial by video conference. Counsel for the Plaintiff also argued that a disadvantage to the Plaintiff should a video deposition be ordered would be that if something arose at trial that was not originally contemplated, then there would be no opportunity for Plaintiff’s counsel to put these matters to the expert.

 

The Court would eventually dismiss the application of ICBC’S lawyer for an order for a pre-trial video deposition, noting that the potential prejudice to the Plaintiff should something arise at trial that had not been originally envisaged.

 

[21] The dangers of video depositions have been referred to in many cases, one of such is Byer v. Mills, 2011 BCSC 158. The court commented on the use of video deposition at trial and those comments have been reiterated in various other cases including in Campbell at paras. 53 to 55 where the court says:

 

[53] The comments, while obiter, were further adopted by the court in Seguin v. Stack, (11 March, 2011) Vancouver No. M095847 (B.C.S.C.) in which Master Baker dismissed an application to permit a medical doctor to provide evidence by way of deposition as the doctor was already committed to surgical and clinical activities (along with other trials) during the particular week of trial. As Master Baker observed, the doctor was advised of the trial dates so any conflict in that regard must have been the fault of his office …

 

[23] Counsel for the plaintiff pressed upon me that there are disadvantages in that if there are eventualities that arise at the trial that are not contemplated or not considered in advance of the video deposition of the proposed defence expert, that there will be no opportunity to put those matters to Dr. Rickards, and the plaintiff potentially will be at a disadvantage in that regard.

 

[24] The defendants argue that any such disadvantage can be taken into consideration by arguments as to the weight of the expert’s evidence at the trial. I am not persuaded that that overcomes, first of all, the onus to convince me that a video conference would not be the appropriate avenue here and, secondly, the potential detriment to the plaintiff if something arose that was not contemplated.

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