Docket: T-2084-12
Citation: 2016 FC 1314
Ottawa, Ontario,
November 28, 2016
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
UNITED AIR LINES, INC.
Plaintiff
and
JEREMY COOPERSTOCK
Defendant
ORDER
UPON MOTION by the
Defendant for an order permitting the Defendant’s expert witness, Dr. Martin
Zeilinger [Zeilinger], to testify and be cross-examined on his expert report by
videoconference from the United Kingdom;
AND UPON CONSIDERING THAT:
•
This Court has discretion in addressing this
issue. The “gap” rule (Rule 4) has no application as this situation is
addressed in the Rules. The fact that the Court has allowed the factors to be
considered to develop organically is not a gap in the Rules.
•
Rule 32 gives discretion to the Court to conduct
a “hearing” by videoconference, amongst other
forms of electronic communication.
•
Rule 279 provides that unless otherwise ordered,
an expert witness’ evidence is not admissible unless the expert witness is
available at the trial for cross-examination.
•
Fundamental to the trial process is Rule 282(1),
which provides that witnesses at a trial shall be examined orally and in open
court unless the Court orders otherwise.
•
The term “hearing”
in Rule 32 is broad enough to include a trial, not just judicial review or motions
(see also Farzam v Canada (Minister of Citizenship and Immigration),
2005 FC 1453 at para 28, 282 FTR 238 [Farzam]).
•
Consistent with Rule 3, in a modern court with a
national jurisdiction, the use of modern communication methods which enhance
the trial process are to be encouraged and adopted where appropriate, feasible
and fair; however, this is not one of those instances where the advantages of
using such modern communication methods outweigh the possible prejudice faced
by a party.
FOR THE FOLLOWING REASONS,
the motion should be denied:
1.
The Defendant has known since at least February
26, 2016, when it was communicated to the parties that this trial was set down
for December 5, 2016 (for four days), that in the normal course his expert
witness would have to attend at the trial. Not until the trial management
conference of November 3, 2016, did the Defendant raise with the Court or the
Plaintiff that he planned to have Zeilinger testify by videoconference because the
witness had moved to the United Kingdom and it was inconvenient for him to
attend in Canada. It was not until November 17, 2016, that the Defendant
brought this motion.
2.
The basis for the motion is that the expert’s
teaching schedule would be disturbed if he was required to attend the trial in
Montreal. The parties have proposed that the witness be examined and
cross-examined for a total of four hours. There is no evidence that this length
of testimony would require the expert to miss an entire week of his classes,
given the ready availability of transportation and moderate travel time between
Montreal and the United Kingdom. The Defendant has not put forward any grounds
that would tend to show that the witness is unable to travel, such as
disability, illness, or cost. This is a matter of convenience to a witness –
not a solid ground for an exception to the requirement for a witness’ personal
appearance at a trial.
3.
The Plaintiff has established that it faces
substantial prejudice, in part because of the Defendant’s failure to address
the requisite technological and jurisdictional issues; but, even setting those
deficiencies aside, I am satisfied that the Plaintiff’s fundamental right to
conduct a proper and thorough cross-examination would be adversely affected by
allowing this accommodation for the Defendant.
4.
There is a serious issue as to whether the
Zeilinger expert opinion is proper expert evidence, or whether it is instead a)
argument or b) opinion on the ultimate legal issue. If it is argument, the
Defendant can make that argument in his submissions; if it is legal opinion, it
is not properly admissible. The Plaintiff has filed a Motion to Strike the
expert’s report. The disagreement between the parties with respect to the
appropriateness of this expert evidence emphasizes the need to ensure that the
Plaintiff is able to conduct a thorough and effective cross-examination.
5.
There is substantial interference with the right
to conduct a proper cross-examination. It is neither feasible nor fair for the
Plaintiff to have to provide the expert in advance with the documents upon
which he will be cross-examined –whether they are in evidence earlier in the
trial or arise separately to challenge his opinion. Furthermore, the conduct of
cross-examination will be stilted by the interface of videoconferencing and the
use of document-sharing technology may result in delays that, while not
extensive, will impede the flow of cross-examination.
6.
The Defendant had not addressed the requisite
technological issues. His motion materials did not outline a plan or details as
to how document exchange, viewing of documents and cross-examination thereon would
work. The Plaintiff has correctly raised that the Defendant, in his motion
materials, has not established that his proposal is fully technically feasible.
Furthermore, past experience in discovery in this file has suggested
significant problems with respect to the use of technology between these
parties. It is the Defendant’s burden to have addressed these issues to the
Court’s satisfaction; contrary to the submissions of the Defendant, the
Plaintiff does not have the onus of proving that the use of videoconference
technology is not feasible. Moreover, even if the proposal were technically
feasible, the overall balancing exercise is against granting this motion.
7.
The Defendant has not addressed the
jurisdictional issue of receiving evidence from a foreign jurisdiction. Rules
271-273 provide that in cases of taking evidence outside of Canada, the Court
proceeds by way of commission and letter of request to the court where the
witness will testify. In the Federal Court, if testimony is to be received from
a foreign jurisdiction by way of videoconference or some other form of
electronic communication, a witness must be placed under oath in accordance
with our laws and with local laws; this will require the presence of a member
of the legal system of the foreign jurisdiction (Farzam at para 49). The
administration of an oath or declaration is not a mere nicety – it is critical
to the court process that the witness be subject to enforcement, including
sanctions, with respect to his testimony. It is the responsibility of the
Defendant, not the Court, to address the form of oath-taking.
8.
Having reviewed the Defendant’s Reply, the
Defendant’s submissions are not consistent with the rules of Reply and are in
fact indicative of “case splitting”.
9.
The general obligation of a party to have his
witness present and available at trial, combined with the alleged importance of
the expert evidence and the expected duration of the cross-examination, all indicate
that it is in the interests of justice that this witness appear in-person.
THEREFORE, the Defendant’s convenience
has not overcome the prejudice to the Plaintiff or to the Court process.
IT IS ORDERED that this motion be
dismissed with costs.
“Michael L. Phelan”
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