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.

 

[3]         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.

 

[5]             In Abermin Corp. v. Granges Exploration Ltd., [1990] 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.

 

[6]             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).

 

[34]         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.

 

[35]         In cases such as this case before me with the most unexceptional facts, the proportionate procedure would be video conferencing.

 

Rule 7-8 of the British Columbia Supreme Court Civil Rules outlines the use of deposition evidence at a trial. In an ICBC claim, if the parties consent, or if the court so orders, a person can be examined under oath before or during a trial, and the record of the examination may be tendered as evidence at trial. Reasons for using deposition evidence include convenience, unavailability to testify, and expense.

 

 

 

Obviously, however, there can be shortcomings associated with proceeding to trial with deposition evidence.

 

 

 

In Byer v. Mills et al., the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages for pain and suffering. A great deal of evidence was presented by way of pre-trial depositions. Eventually, the Plaintiff’s claim for damages was dismissed. In an Appendix to the Court’s ruling, the Court discussed the problems associated with using deposition evidence at trial, and suggested that it only be used where there are pressing reasons to do so.

 

 

 

c)     It is well settled in our trial practice that the basic rule is that witnesses should testify live before the court. This proposition is reflected in Civil Rule12-5 (27) and in the many cases in which our courts have considered the basis on which to exercise their discretion to make an order that evidence be taken by deposition.

 

 

 

d)    In this case, the defence evidence was taken before trial and therefore before the plaintiff had led any evidence at all. In my view, there are good reasons why in a conventional trial a plaintiff is required to lead evidence first on matters on which he or she bears the burden of proof. The defence is then required to respond to the plaintiff’s case, including leading evidence on any matters on which it carries the burden. This provides an orderly framework for the receipt of evidence by the court. It helps keep the relevance of evidence in focus.

 

 

 

e)    Taking defence evidence first carries with it risks and potential inefficiencies. First, there is the risk that a defendant may not correctly anticipate what the plaintiff’s evidence turns out to be at trial. The defence evidence may not be properly responsive to the plaintiff’s case. Evidence may be taken that is unnecessary. Issues may not be adequately addressed in the defence case, creating the risk that a party may need to apply to have a witness who has been deposed supplement his or her evidence. It seems to me to be generally undesirable to take trial evidence out of the normal order.

 

 

 

f)      There are further difficulties inherent in taking evidence by deposition. The evidence is not taken live and its receipt as trial evidence is not controlled by the trial judge as the evidence is being given. Objections may be made, as occurred in this case. Inevitably, the objection is made and left on the record. The witness then provides the evidence to which there is an objection, subject to a later ruling.

 

 

 

g)    This seems to me to be unsatisfactory. It is preferable that objections be ruled on before the evidence is given for a number of reasons. First, if the objection is upheld, a witness does not spend time answering improper questions. Where several witnesses are testifying about the same matter, a ruling at the outset will limit the scope of the evidence of all the subsequent witnesses. Secondly, it is not uncommon for counsel to frame questions in an objectionable manner, even though there are ways properly to elicit the evidence counsel is seeking. It is far better for the court to have the opportunity to ensure that questions are properly framed and evidence properly received than to try to “unscramble an omelette” after the fact. This is not just a practical issue. Often the way in which evidence is elicited can affect the weight it is entitled to receive. There is a risk of substantive prejudice to the parties if the trial judge is denied the opportunity at the time it is given to ensure that evidence is properly received.

 

 

 

h)    Finally, the trial judge has an important additional role to play in controlling the trial process. It is not uncommon for a trial judge to be called on during cross-examination, either at the request of counsel or on his or her own initiative, to control the conduct of the cross-examination. For example, it may be necessary to decide how much of a prior allegedly inconsistent statement ought properly to be put to a witness. That is a decision that should be made at the time the witness is confronted with the statement. Taking evidence by deposition necessarily deprives the trial judge of an essential judicial function. Doing so is fraught with risks to the trial process and risks substantive prejudice to the parties.

 

 

 

i)       I appreciate the Civil Rules permit depositions to be taken by consent. In my view, the purpose of allowing this to occur by consent is to obviate the need for an order where it is clear that the circumstances exist that would lead a court to make an order. Generally, the party applying to take evidence by deposition has a burden to meet to justify departing from the general rule that evidence be given live. I will not rehearse the law on this point. But I do not think the drafters of the Civil Rules intended to encourage a practice that is inconsistent with conventional trial practice.

 

 

 

j)      It follows from my comments above that I would discourage counsel from electing to resort to taking depositions by consent unless there are pressing reasons to do so. If there are legitimate concerns about cost and convenience, there are provisions permitting taking evidence by video conference. At least then the evidence is taken live.