Date: 20051026
Docket: T-626-96
Citation: 2005 FC 1453
Ottawa, Ontario, October 26, 2005
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
HUSSEIN FARZAM
Plaintiff
and
HER MAJESTY THE QUEEN IN RIGHT OF
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
[1] On October 19, 2005, five days prior to the scheduled commencement of this trial, through his counsel, the Plaintiff made an informal request for directions in respect of alternative ways of obtaining the evidence of two witnesses who reside in Iran, namely, the Plaintiff's brother, Hassan Farzam and his mother, Razia Farzam (the Iranian witnesses).
[2] On the afternoon of Friday, October 21, 2005, at approximately 1::35 p.m., the Plaintiff filed and served on the Defendant a formal motion for an order from the Court to allow the Plaintiff to introduce the evidence of the Iranian witnesses at the trial through the use of teleconferencing. This motion was made returnable to the Court on October 24, 2005, at 9:30 a.m., in Ottawa, and is opposed by the Defendant.
[3] The Plaintiff brings the present motion under Rule 286 of the Federal Courts Rules, 1998 SOR/98-106 (the Rules) which reads as follows:
| 286. The Court may, before trial, order that evidence of any fact be given at the trial in such a manner as may be specified in the order, including
(a) by statement on oath of information or belief;
(b) by the production of documents or other material;
(c) by the production of copies of documents; or
(d) in the case of a fact that is or was a matter of common knowledge either generally or in a particular district, by the production of a specified publication containing a statement of that fact..
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286. La Cour peut, avant l'instruction, ordonner que la preuve d'un fait particulier soit présentée à l'instruction de la manière précisée dans l'ordonnance, notamment :
a) par une déclaration sous serment de renseignements ou d'une croyance;
b) par la production de documents ou d'éléments matériels;
c) par la production de copies de documents;
d) dans le cas d'un fait notoire ou d'un fait connu dans un district particulier, par la production d'une publication particulière qui relate ce fait.
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[4] On Monday, October 24, 2005, at 9:30 a.m., in Ottawa, the Court heard the oral submissions of counsel prior to the commencement of the trial.
[5] The following facts are not in dispute.
FACTUAL BACKGROUND
[6] On March 28, 1984, the Plaintiff and Mrs. Esmat Mohiti were married in Iran. The Plaintiff was in the Shomeli refugee camp in Iraq from 1984 to 1988. On October 26, 1988, he arrived in Canada on a Minister's Permit. However, he did not have permanent resident status. On November 5, 1991, the Plaintiff was granted landed immigrant status.
[7] On June 30, 1992, the Plaintiff's sponsorship application for his wife, including the undertaking of assistance, was approved and forwarded to the Damascus office of the Defendant. The Damascus office received the sponsorship application on July 29, 1992. Nonetheless, on June 4, 1993, the Damascus office sent a telex to the Plaintiff's wife, Mrs. Mohiti, stating that the Plaintiff had not submitted the undertaking of assistance.
[8] Sometime in late December 1993, Mrs. Mohiti apparently divorced the Plaintiff in Iran.
[9] On January 10, 1994, a Minister's permit was issued by the Canadian embassy in Damascus for Mrs. Mohiti to come to Canada.
COURT PROCEEDINGS
[10] On August 4, 1995, a statement of claim was filed by the Plaintiff in the Ontario Court (General Division) under file no. 93311/95. The Plaintiff was seeking damages as a result of the defendant's alleged negligence regarding the processing of his and his former wife's immigration files. On November 17, 1995, Soublière J. issued an order staying the proceedings under section 106 of the Courts of Justice Act, R.S.O. 1990, c. C-43.
[11] On March 14, 1996, the Plaintiff filed a statement of claim in the Federal Court, Trial Division (as it then was), in which he sought damages as a result of the defendant's alleged negligence relating to the processing of both his and his former wife's immigration files. Since August 10, 1999, Hugessen J. has acted as case management judge. Aronovitch P. assisted him in the proceedings.
[12] On September 16, 2002, the Defendant filed a motion for summary judgment in which it was argued that there was no genuine issue for trial. Essentially, the motion was based upon limitation periods having expired when the action was brought. The motion was allowed in part by Hugessen J. on February 10, 2003. An appeal by the Plaintiff was dismissed by the Federal Court of Appeal on October 29, 2003 following a status review.
[13] In his reasons, Hugessen J. took the view that the action of the Plaintiff could be divided into three distinct claims, all involving negligence. The first claim was based on alleged
misrepresentations made to the Plaintiff by an immigration official outside of Canada, prior to the Plaintiff ever coming to Canada. The second claim was based upon an alleged loss of employment opportunities due to the treatment of the Plaintiff as a refugee claimant, which precluded him from employment without authorization. The third claim pertained to damages resulting from an alleged marriage breakdown due to the Defendant's alleged negligent actions; which purportedly resulted in the Plaintiff suffering from depression.
[14] In effect, the order rendered by Hugessen J. restricted the Plaintiff's action in the following manner: while his first two claims were found to be out of time because of limitation periods, the Plaintiff could still rely on his third claim, but only insofar as damages were based on acts or omissions by officials of the Defendant committed outside Canada:
Now, turning to the claim or that part of the claim based upon the acts and omissions of the defendant and its officials in dealing with the request that the plaintiff's wife come to Canada, there is evidence upon which the Court might find that the delay in dealing with the wife's application was due to negligence in either the Tehran or Damascus offices of the defendant. Immigration Officials in those offices do not enjoy the protection of the Ontario Public Authority Protection Act in respect of acts or omissions done by them in those offices. Accordingly, that part of the claim which is based upon alleged negligence by officials in overseas offices of the Department appears to be timely and should not be dismissed.
However, the claim must be limited to acts or omissions by officials of the Department committed outside Canada, and that part of it, which may be based upon acts or omissions of officials in Ontario, must likewise be dismissed.
[15] Following a pre-trial conference, in her order dated February 1, 2005, and in reference to the above order of Justice Hugessen, Madam Prothonotary Aronovitch summed up the factual and legal framework applicable to the case at bar:
a) Whether, in the circumstances of this case, a prima facie duty of care was owed to the Plaintiff regarding the processing of his wife's application?
b) Whether the actions or omissions of CIC officials acting outside of Canada breached the applicable duty of care regarding the handling and processing of Mrs. Mohiti's file?
c) In the event that liability can be established, what is the appropriate quantum of damages?
d) Is the successful party entitled to costs, and if so, in what amount?
[16] The parties having indicated their readiness to proceed at the earliest available opportunity for 12 days to be set aside, on March 16, 2005, Lutfy C.J. issued an order setting out the trial date as October 24, 2005, to be heard in Ottawa. This was nearly seven months ago.
[17] A trial management conference was held at my initiative on October 12, 2005. The fact that the Iranian witnesses may not be present at the trial had been raised informally for the first time by Plaintiff's counsel in a letter dated October 3, 2005, addressed to the attention of the Chief Justice. Shortly afterwards, I issued the following Direction to the Registrar on October 5, 2005:
Ask the parties' counsel to send their written submissions to the Court on or before Tuesday October 11, 2005, at noon:
(1) concerning the admissions that could be made regarding the facts on which the Iranian witnesses could testify at the trial in the event that the visas cannot be issued before the date of the trial;
(2) alternatives in the event that no admission on the content of the testimonies is possible;
(3) any request for adjournment or postponement of the case in the event that the parties cannot agree on an acceptable alternative;
(4) any other procedural or evidential question requiring directions from the Court before the trial.
[18] On October 12, 2005, further to the written submissions made by the parties, the Court was informed that the Plaintiff had made arrangements on July 25, 2005, to have interpreters available for the trial. It also appears that on August 5, 2005, the Plaintiff had served and filed a motion to order the Administrator to issue subpoenas to facilitate the entry in Canada of family members who reside in Iran. The Plaintiff submitted then that these witnesses would likely testify with regard to Mrs. Mohiti's reasons to divorce and remarry another man. Indeed, on August 18, 2005, Prothonotary Aronovitch issued an order to compel the appearances of the Iranian witnesses, as well as the Plaintiff's sister, Mrs. Goulsom Farzam, also Iranian. However, on October 3, 2005, the Iranian witnesses' applications for visas were denied by Canadian immigration officials. At the conference, Plaintiff's counsel expressed his client's desire to have the trial adjourned pending judicial review proceedings in order to force the Minister to deliver visas to the Iranian witnesses. Incidentally, the Plaintiff does not intend to call his sister, Mrs. Goulsom Farzam, or Mrs. Mohiti as witnesses at the trial. The Court was advised by counsel that Mrs. Mohiti had apparently cut off all communications with the Plaintiff and that her new husband would not likely permit her to testify in this case. The Court was also informed by counsel that the parties were currently in the process of preparing a joint book of documents and of finalising an agreed statement of facts, already overdue. In any event, this statement, at the insistence of the Defendant, would not include any admission as to the content of the testimonies of the Iranian witnesses. Moreover, the Defendant was not ready to admit that Mrs. Mohiti had divorced the Plaintiff in 1993 as a direct result of the delays and alleged
errors made by the immigration officials employed by the Defendant at the Damascus and Tehran offices. In view of all this, Plaintiff's counsel expressed the desire to be permitted to present a motion to introduce evidence by alternative means.
[19] Further to the representations made by counsel on October 12, 2005, I issued the following directions:
The parties are to file their agreed statement of facts by 4:00 pm on 12 October 2005. The parties shall file a joint book of documents by 4:00 pm on 13 October 2005. The Plaintiff shall serve and file any motion to adjourn the trial of this action by no later than 4:00 pm on 13 October 2005. The motion is to be in writing and to the attention of the Chief Justice. The defendant's responding motion record is to be served and filed by 4:00 pm on 14 October 2005. Any reply on behalf of the Plaintiff should be served and filed by 4:00 pm on 17 October 2005. It is also directed that should the Plaintiff wish to bring any motion for alternative means to introduce evidence, it should be served and filed within the same time limitations as those concerning the motion to adjourn the trial.
[20] Indeed, on October 13, 2005, the Plaintiff filed a motion for adjournment in order to seek leave for judicial review of the visa officers' decisions to refuse visas to the Iranian witnesses, which would allow them to attend the trial or to obtain evidence by alternate means (the motion for adjournment). Concurrently, the Plaintiff brought another motion made under Rule 286 to allow the introduction of two documents apparently prepared by Mrs. Mohiti in 1993 and 1996 that the Plaintiff claimed would provide evidence of the cause of the alleged divorce his ex-wife apparently sought in Iran sometime in late December 1993 (the motion to introduce the statements of Mrs. Mohiti).
[21] Moreover, on or about October 17, 2005, the Iranian witnesses, through Plaintiff's counsel, served and filed separate applications for leave and judicial review seeking that this Court set aside the visa officers' decisions to deny their applications for temporary resident visas on the basis that they would likely not leave Canada at the end of their stays (Hassan Farzam v. Canada (Minister of Citizenship and Immigration) IMM-6269-05 and Razia Farzam v. Canada (Minister of Citizenship and Immigration) IMM-6266-05).
[22] On October 18, 2005, Lutfy C.J. dismissed the motion for adjournment and ordered that all other issues, including the issue of the costs of that motion, be referred to the trial judge. On October 21, 2005, I dismissed the motion to introduce the statements of Mrs. Mohiti, as I found that this hearsay evidence did not satisfy the separate requirements of necessity and reliability (Hussein v. Her Majesty the Queen in right of the Minister of Citizenship and Immigration, 2005 FC 1432).
THE PRESENT PROCEEDINGS
[23] At the outset, it is important to underline the fact that by Direction dated October 12, 2005, the Court specifically required that the Plaintiff was to serve and file "any motion for alternative means to introduce evidence" by October 13, 2005. The Plaintiff could have then filed then a formal motion to allow the Plaintiff to introduce the evidence of the Iranian witnesses at the trial through alternative means. Apparently, the Plaintiff was content in making a motion for adjournment of the trial and a motion to introduce the statements of Mrs. Mohiti. Both motions were dismissed which
brings us to the present motion to introduce the evidence of the Iranian witnesses at trial through the use of teleconferencing made presentable at the commencement of the trial on October 24, 2005. I note that the notice of motion and accompanying affidavit have not been served and filed at least two days before the day set out in the notice for the hearing as required under Rule 362(1). Moreover, there is no urgency alleged. The trial in this case has been set down some seven months ago. This new motion for alternative means of evidence made under Rule 286 is presented the day the trial is supposed to start. The Court should be able to control its process and, at this late date, it is certainly entitled to refuse to entertain the informal request for directions and subsequent motion to allow the Plaintiff to introduce the evidence of the Iranian witnesses at the trial through the use of teleconferencing. At this late date, there are no special circumstances in this case warranting the exercise of the Court's discretion under Rule 55 to vary a rule or dispense with the requirement for compliance with a rule.
[24] That being said, even if the present motion is made at the "eleventh hour", Plaintiff's counsel strongly urges that, in the interest of justice, I should hear and dispose of it. Moreover, she submits that there is a risk that the Plaintiff will not have a "fair trial" if the Iranian witnesses are not permitted to testify at trial through telephone. Having examined and weighed all relevant factors, and in the exercise of my discretion, I am not satisfied that the just, most expeditious and least expensive determination of this action requires that the Iranian witnesses be heard through the use of teleconferencing at the trial.
[25] Subsection 53(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, states the following:
| 53. (1) The evidence of any witness may by order of the Federal Court of Appeal or the Federal Court be taken, subject to any rule or order that may relate to the matter, on commission, on examination or by affidavit.
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53. (1) La déposition d'un témoin peut, par ordonnance de la Cour d'appel fédérale ou de la Cour fédérale, selon le cas, et sous réserve de toute règle ou ordonnance applicable en la matière, être recueillie soit par commission rogatoire, soit lors d'un interrogatoire, soit par affidavit.
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[26] Indeed, at the trial, as a general rule, Rule 282(1) provides that "[u]nless the Court orders otherwise, witnesses at trial shall be examined orally and in open court". Moreover, Rule 286 provides that "[t]he Court may, before trial, order that evidence of any fact be given at the trial in such a manner as may be specified in the order". In this regard, Rule 271 provides that on motion, the Court may order the examination for trial of a person out of Court, and Rule 272 provides that where an examination under Rule 271 is to be made outside Canada, the Court may order the issuance of a commission under the seal of the Court, letters rogatory, a letter of request or any other document necessary for the examination.
[27] That being said, I note that Rule 32, which is not invoked by the Plaintiff, provides that "[t]he Court may order that a hearing be conducted in whole or in part by means of a telephone conference call, videoconference or any other form of electronic communication" (my emphasis). While there are no particular guidelines for the exercise of the Court's discretion, Rule 32 should "be interpreted and applied so as to serve the just, most expeditious and least expensive determination of every proceeding on its merits" (Rule 3). Prior to the adoption of the new Rules in 1998, I note that in 1992 and 1996, the Court had issued a Practice Direction and Circular No. 5/96 respecting telephone and video conferencing. It appears that telephone conferences or video conferences can provide, in appropriate circumstances, an alternative means of access to court
hearings in order to facilitate the advancement of cases, including access on urgent matters and across long distances and to save costs in time and travel for litigants, judges and registry staff. It is apparent that such alternative means have been available for the following types of hearings: any motion; case scheduling conference; pre-trial conference; and other conference hearings. In those instances, the evidence brought to the attention of the Court was usually in the form of affidavits and proper documentary record. Representations were made orally by counsel in different locations. However, to this Judge's knowledge, telephone and video conferences have not been used by the Court at trial as a substitute to hearing witnesses in open court. As such, considering the general principle mentioned at Rule 282(1), such a procedure, if permitted at trial by an order of the Court, certainly constitutes an exceptional mode of admitting evidence, akin to a form of commission evidence.
[28] While it is not clear whether or not the word "hearing" used in Rule 32 encompasses the "trial" of an action, it should be interpreted in a liberal matter. I note that Rule 4 provides that "[o]n motion, the court may provide for any procedural matter not provided for in these Rules or an Act of Parliament by analogy to the Rules or reference to the practice of the superior court of the province to which the subject matter of the proceeding most closely relates". In this regard, Rule 4 makes it clear that where provincial practice is adopted, it is to be the practice of the relevant provincial superior court. The present action was instituted in Ontario. Assuming for the purpose of the present motion it would be necessary to rely on the "gap" rule, a point that does not need to be definitely resolved, the practice of the Superior Court of Justice in Ontario appears to most clearly relate to the subject matter of the present proceeding. Although not directly applicable, I also note that viva voce testimony by telephone or by an audio-visual method may be admissible at trial in Saskatchewan by the Court of Queen's Bench, or at the hearing of an appeal instituted before the Canada Tax Court, also a superior court of record (section 3 of the Tax Court of Canada Act R.S.C. 1985, c. T-2).
[29] Starting with the practice followed in the province of Ontario, Rule 1.08 of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194, reads as follows:
| 1.08 (1) If facilities for a telephone or video conference are available at the court or are provided by a party, all or part of any of the following proceedings or steps in a proceeding may be heard or conducted by telephone or video conference as permitted by subrules (2) to (5):
1. A motion (Rule 37).
2. An application (Rule 38).
3. A status hearing (Rule 48.14).
4. At trial, the oral evidence of a witness and the argument.
5. A reference (Rule 55.02).
6. An appeal or a motion for leave to appeal (Rules 61 and 62).
7. A proceeding for judicial review.
8. A pre-trial conference, a case conference, a settlement conference or a trial management conference. O. Reg. 288/99, s. 2; O. Reg. 24/00, s. 1.
(2) If the parties consent to a telephone or video conference and if the presiding judge or officer permits it, one of the parties shall make the necessary arrangements. O. Reg. 288/99, s. 2.
Order, No Consent
(3) If the parties do not consent, the court on motion may make an order directing a telephone or video conference on such terms as are just. O. Reg. 288/99, s. 2.
(4) The judge or officer presiding at a proceeding or step in a proceeding may set aside or vary an order made under subrule (3). O. Reg. 288/99, s. 2.
Factors to Consider
(5) In deciding whether to permit or to direct a telephone or video conference, the court shall consider,
(a) the general principle that evidence and argument should be presented orally in open court;
(b) the importance of the evidence to the determination of the issues in the case;
(c) the effect of the telephone or video conference on the court's ability to make findings, including determinations about the credibility of witnesses;
(d) the importance in the circumstances of the case of observing the demeanour of a witness;
(e) whether a party, witness or solicitor for a party is unable to attend because of infirmity, illness or any other reason;
(f) the balance of convenience between the party wishing the telephone or video conference and the party or parties opposing; and
(g) any other relevant matter. O. Reg. 288/99, s. 2.
(6) Where the court permits or directs a telephone or video conference, the court may direct a party to make the necessary arrangements and to give notice of those arrangements to the other parties and to the court. O. Reg. 288/99, s. 2.
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1.08 (1) Si des installations en vue de la tenue d'une conférence téléphonique ou d'une vidéoconférence sont disponibles au tribunal ou sont fournies par une partie, tout ou partie de l'une ou l'autre des instances ou étapes d'une instance suivantes peut être entendu ou mené par conférence téléphonique ou vidéoconférence comme le permettent les paragraphes (2) à (5) :
1. Une motion (Règle 37).
2. Une requête (Règle 38).
3. Une audience sur l'état de l'instance (règle 48.14).
4. Lors du procès, le témoignage oral d'un témoin et la plaidoirie.
5. Un renvoi (règle 55.02).
6. Un appel ou une motion en autorisation d'interjeter appel (Règles 61 et 62).
7. Une instance relative à la révision judiciaire.
8. Une conférence préparatoire au procès, une conférence relative à la cause, une conférence en vue d'une transaction ou une conférence de gestion du procès. Règl. de l'Ont. 288/99, art. 2; Règl. de l'Ont. 24/00, art. 1.
(2) Si les parties consentent à une conférence téléphonique ou à une vidéoconférence et que le juge ou l'officier de justice qui préside l'autorise, l'une des parties prend les dispositions nécessaires. Règl. de l'Ont. 288/99, art. 2.
(3) Si les parties ne donnent pas leur consentement, le tribunal peut, sur motion, rendre une ordonnance prescrivant la tenue d'une conférence téléphonique ou d'une vidéoconférence, à des conditions justes. Règl. de l'Ont. 288/99, art. 2.
(4) Le juge ou l'officier de justice qui préside une instance ou une étape d'une instance peut annuler ou modifier une ordonnance rendue en vertu du paragraphe (3). Règl. de l'Ont. 288/99, art. 2.
Facteurs à prendre en considération
(5) Lorsqu'il décide s'il doit autoriser ou ordonner la tenue d'une conférence téléphonique ou d'une vidéoconférence, le tribunal tient compte des facteurs suivants :
a) le principe général selon lequel les témoignages et les plaidoiries devraient être présentés oralement en audience publique;
b) l'importance des témoignages pour ce qui est de trancher les questions en litige dans la cause;
c) l'effet de la conférence téléphonique ou de la vidéoconférence sur la capacité du tribunal d'émettre des conclusions, y compris des décisions relatives à la crédibilité des témoins;
d) l'importance d'observer le comportement d'un témoin, compte tenu des circonstances de l'affaire;
e) la question de savoir si une partie, un témoin ou le procureur d'une partie ne peut se présenter pour cause d'infirmité, de maladie ou pour tout autre motif;
f) la prépondérance des inconvénients qu'il établit entre ceux que subirait la partie qui souhaite la tenue de la conférence téléphonique ou de la vidéoconférence et ceux que subiraient la ou les parties qui s'y opposent;
g) les autres questions pertinentes. Règl. de l'Ont. 288/99, art. 2.
(6) Le tribunal qui autorise ou ordonne la tenue d'une conférence téléphonique ou d'une vidéoconférence peut enjoindre à une partie de prendre les dispositions nécessaires à cette fin et d'en donner avis aux autres parties et au tribunal. Règl. de l'Ont. 288/99, art. 2.
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[30] At the hearing, counsel were unable to refer this Court to any caselaw or relevant precedent dealing with the issue raised in this motion. In a brief research subsequent to the hearing, I was able to find a few relevant cases which are commented below. The first decision is Pack All Manufacturing Inc. v. Triad Plastics Inc., [2001] O.T.C. 1022 (Ont. Sup. Ct.), O.J. No. 5822 (Q.L.). In this case, a plaintiff actually sought before the Ontario Superior Court of Justice an order under Rule 1.08(3) of the of the Ontario Rules of Civil Procedure to admit the evidence of a witness who worked and resided in the State of Virginia in order to avoid incurring direct travel costs of over $2000 that would be required to bring the witness to Ottawa. The evidence in chief of said witness was estimated at about one-half hour. There was no evidence that the witness in question was unable or unwilling for any reason to come to Ottawa and testify of her own volition, assuming all her expenses were paid. Her evidence was important and the cost of bringing her was not all that great in relation to the amount of money at issue in the trial, which was somewhere in the range of $80,000 to $105,000, including claims by both the defendant and the plaintiff. A "will say" statement of her expected evidence had already been given to defendant's counsel. Counsel for the defendant, who had consented to the evidence of certain other witnesses for the plaintiff being produced by video conference, objected to the order sought on the basis that the testimony of this witness was expected to be at odds with that of an important witness for the defendant and counsel urged that an assessment of the credibility of the Virginia witness was very important and for that reason she should be produced, live, before the trial judge. The plaintiff's motion was dismissed.
[31] While the reasons in Pack All Manufacturing Inc., supra, are not all applicable in the present case, Rutherford J. suggested that a trial judge can see, hear and evaluate a witness' testimony very well, assuming the video conference arrangements are good. The following passages of his reasoning are relevant:
In my experience, a trial judge can see, hear and evaluate a witness' testimony very well, assuming the video-conference arrangements are good. Seeing the witness, full face on in colour and live in a conference facility is arguably as good or better than seeing the same witness obliquely from one side as is the case in our traditional courtrooms here in the Ottawa Court House. The demeanour of the witness can be observed, although perhaps not the full body, but then, sitting in a witness box is not significantly better in this regard. Indeed, I often wonder whether too much isn't made of the possible ability to assess the credibility of a witness from the way a witness appears while giving evidence. Doubtless there are "body language" clues which, if properly interpreted, may add to the totality of one's human judgment as to the credibility of an account given by a witness. The danger lies in misinterpreting such "body language," taking nervousness for uncertainty or insincerity, for example, or shyness and hesitation for doubt. An apparent boldness or assertiveness may be mistaken for candour and knowledge while it may merely be a developed technique designed for persuasion. Much more important is how the substance of a witness' evidence coincides logically, or naturally, with what appears beyond dispute, either from proven facts or deduced likelihood. I am not at all certain that much weight can or should be placed on the advantage a trier of fact will derive from having a witness live and in person in the witness box as opposed to on a good quality, decent sized colour monitor in a video-conference. While perhaps a presumption of some benefit goes to the live, in person appearance, it is arguable that some witnesses may perform more capably and feel under less pressure in a local video-conference with fewer strangers present and no journeying to be done.
[32] That being said, while there is much to be said for using the modern technology available and taking evidence by video conference, Rutherford J. cautioned that "it is not a manner of taking evidence available to parties as matter of right. Unless consented to by the opposite party, the Court must balance the relevant factors and determine whether the advantages of using video conferencing outweigh the possible prejudice that might arise." In other words, in such cases, it is a balancing act between competing factors to ensure that the interests of justice are better served. This is certainly not an easy task for this Judge, as the stakes are high on both sides.
[33] The second case was decided in 1996 by the Saskatchewan Court of Queen's Bench wherein an application for an order permitting a medical practitioner to give viva voce evidence in support of the plaintiff via telephone conference call was made pursuant to the Saskatchewan Queen's Bench Rules, R. 284A(1). This rule provides that the court can order the taking of testimony by teleconference or by an audio-visual method approved by the Court where the parties consented or where it "may be necessary for the purposes of justice". Indeed, in Kapell v. Abel, [1996] Sask. R. 46, .J. No. 573 (QL), the defendant had not consented to allow into evidence at trial the medical reports and medical notes and records of an expert witness who was now residing in Arizona. The expert witness was important to the case of the plaintiff, being one of her physiotherapists, and would provide the court "with all relevant medical information so that a just and fair assessment of [the plaintiff's] damages can be made." The motion was dismissed as the court was not satisfied that the order requested, "is necessary for the purposes of justice."
[34] While the case at bar presents some features distinguishable from those present in Kapell, supra, Geatros J.'s general reasoning is nevertheless relevant:
In the present case, there are factors such as those that confronted Halvorson J. which weigh against the granting of the order sought. In particular, it is expert testimony proposed to be elicited over the telephone; it is apparent that both examination and cross-examination will be lengthy and there is prejudice the defendant would likely encounter by reason of the difficulty in showing documents or exhibits to the witness during cross-examination. The sole factor, in effect, in favour of granting the order is that the attendance of the witness at trial would be costly and inconvenient. Certainly, I suggest, it cannot be said to be "unnecessary" given the plaintiff's assessment that Monique Knipple is an "important" witness and "necessary" for her case, in the words of the plaintiff in her affidavit, "... for the purpose of providing the court with all relevant medical information so that a just and fair assessment of my damages can be made."
[35] Geatros J. refers to Halvorson J.'s reasons in Squires v. Fong [1983] 24 Sask. R. 159 S.J. No. 147, (QL), at page 160:
It would not be appropriate to endeavour to formulate a set of guide lines governing when the rule could or could not be successfully invoked. In applying this rule the particular facts of each case will dictate whether telephone evidence is "necessary for the purposes of justice".
It should be noted the rule was passed to modernize and effect economy in court proceedings. The rule should not be emasculated by an unduly restrictive interpretation, but it should not be given such a liberal construction as will open the flood gates for telephone evidence, thereby removing from all concerned the opportunity to observe the demeanour of the witness. Middle ground m[u]st be found to meet the objectives of the rule without depriving the court of the advantages, unnecessarily, of seeing the witness.
[36] Finally, in Ramnarine v. Canada, [2001] D.T.C. 991, T.C.J. No. 736 (QL), the Tax Court of Canada considered an application made by a taxpayer, Mr. Ramnarine, residing in Saskatchewan for an order directing that the evidence of his non-Saskatchewan resident witnesses be received in Court by affidavit or telephone. Ramnarine was assessed by the Minister of National Revenue for the 1994 and 1995 taxation years on the basis of what was commonly called a net worth assessment. Part of the basis of his appeal was that the Minister had failed to take into account monies that he had received from his former home of Guyana. Mr. Ramnarine moved to Saskatchewan in 1978 at the age of 45 years due to the deteriorating political and economic climate in Guyana. In anticipation of leaving, he claimed to have disposed of assets and converted funds into foreign currency that he gradually and secretly withdrew over the years. He claimed to have received $15,000 each year in 1994 and 1995 from Guyana. He wished to call two witnesses from Ontario who were former residents of Guyanaand had knowledge of the political climate and racial tensions there and the various methods by which Guyanese residents attempted to obtain foreign currency and move it out of the country. He also wished to call a certain Sripal, a businessman from Guyana, who had arranged for the delivery of the currency to him in 1994 and 1995. In addition, he wanted to call three witnesses from Guyana to testify as to his business and properties and their value in the 1970s. Ramnarine did not expect any of the evidence to be complicated or to involve documents. He was living on old age pension and claimed not to have sufficient funds to provide the witnesses with conduct money to appear in Saskatchewan. The amount of money in issue was less than the cost of the witnesses attending court.
[37] The application was allowed in part by the Tax Court of Canada. The Ontarioresidents were allowed to provide their testimony via videoconferencing. The interests of justice would not have been served by requiring Ramnarine to pay conduct money when the expense exceeded the amount of tax involved. The Ontario witnesses were offering relevant opinion evidence and videoconferencing afforded the Court the opportunity to observe the witnesses for credibility purposes. Of the Guyanese witnesses, with the exception of Sripal, the extraordinary measure of testimony by telephone was not warranted. Their evidence was not likely to be relevant. Ramnarine left Guyana in 1978 and any evidence these witnesses could have provided would likely have been stale. Sripal was allowed to provide his evidence by teleconferencing. His evidence was going to be brief and there was no necessity for reference to documents. Sripal's evidence was necessary because it dealt directly with the transfer of funds to Canada in 1994 and 1995. Sripal was not an expert witness and was not going to be subjected to extensive scrutiny by the Crown. He was required to be sworn in according to the laws of both Guyanaand Canada. A judge or lawyer was required to explain to him the consequences of perjury.
[38] In Ramnarine, Miller T.C.J. summarized in the following way the factors justifying the granting of an order for evidence by teleconferencing in that case:
There are instances where the interests of justice can best be served in the Tax Court by a practical approach to the implementation of rules. This is one of those instances. This granting of an Order for evidence by teleconferencing is not intended to open any floodgates. It is limited to the circumstances of this particular appeal and specifically the following factors:
(1) The appeal is in regard to what has been described as the blunt instrument of a net worth assessment;
(2) The cost is substantial in connection with the tax in issue;
(3) The Appellant's financial resources are prima facia limited;
(4) The witness is outside North America;
(5) The witness is not an expert;
(6) The Witness will not rely on any documentary evidence;
(7) The testimony is limited in scope and is anticipated to be brief in duration; and
(8) The witness must testify in the presence of a judge or lawyer of the foreign jurisdiction under oath in that jurisdiction.
[39] In the case at bar, it is manifest that one of the central issues at trial will revolve around the causation of the alleged divorce. For the purpose of the present motion, I shall assume that Mrs. Mohiti divorced the Plaintiff sometime in late December 1993 and that she remarried in Iran a few months after obtaining her divorce. The exact circumstances of her divorce have not been alleged by the Plaintiff and it is not clear how and why the alleged divorce was sought, obtained or, as the case may be, decided by an Iranian court. In any event, what the Plaintiff wishes to enter as evidence at the trial through the evidence of the Iranian witnesses is not the divorce itself but essentially Mrs. Mohiti's personal reasons for divorcing him. This is one of the most crucial issues which will be contemplated at trial. Evidence of intention is quite different from the evidence required, for example, to show the occurrence of a divorce. Understandably, the causation of the
alleged divorce is highly contentious as it arose from the culmination of factual events and/or emotional experiences of Mrs. Mohiti.
[40] The Plaintiff indirectly acknowledged in his affidavit that the Iranian witnesses are not the best witnesses to testify on the reasons why Mrs Mohiti divorced the Plaintiff. Indeed, there is no allegation in the affidavit submitted by the Plaintiff in support of the present motion that the Iranian witnesses encouraged Mrs. Mohiti to divorce or were somewhat directly implicated or participated in any divorce proceedings taken in Iran by Mrs. Mohiti. Given that it is Mrs. Mohiti who took the initiative to seek the divorce, the best witness to give evidence to the Court on this issue would be Mrs. Mohiti herself. However, she resides in Iran. In the present case, the Plaintiff has stated that Mrs. Mohiti was unavailable to testify as she was unwilling to participate in the proceedings in any way. The Plaintiff suggests that even if she had been willing to do so, her current husband would not allow her to apply for a visa or a passport in order to testify in Canada. However, these statements have been put forward without supporting or credible evidence to this effect. The Plaintiff simply states that Mrs. Mohiti apparently agreed to assist him in 1996 by providing "a declaration regarding her attempts to immigrate to Canada and the case of our divorce". However, the Plaintiff precises that he was advised that "this was the most [Mrs. Mohiti] was willing to do to help me with my case". There is no mention in the Plaintiff's affidavit of any subsequent attempt made at any time by the Plaintiff or his family to secure the cooperation of Mrs. Mohiti or her new husband in this proceeding. In view of their laconic and hearsay character, I afford very little weight to the following general explanations given by the Plaintiff: "[since 1996, Mrs. Mohiti's husband] has barred her from communicating with me and my family. My family was told to desist from contacting Mrs. Mohiti or the police would be called".
[41] It is a fact that Mrs. Mohiti will not be present during the course of the trial. The Plaintiff knew the importance of the evidence establishing the intention of Mrs. Mohiti to divorce him for quite a long time. The present case has been in case management since at least 1999. The Plaintiff never requested the case management judge or prothonotary to issue directions concerning the manner in which he could have dealt with this specific issue. The fact that Mrs. Mohiti is apparently unwilling to testify and that the Iranian witnesses were recently refused visas to come to Canada are the main reasons advanced by the Plaintiff to ask, at the commencement of the trial, for an order under Rule 286.
[42] In the case at bar, the credibility of the evidence of the Iranian witnesses is critical. In my opinion, the "just" determination of the contentious issues in the trial, here the cause or causes of the alleged divorce, necessarily implies that the Defendant be given the opportunity to cross-examine the Iranian witnesses. However, it is obvious from the facts of the case that, through teleconferencing, I will not be able to observe the Iranian witnesses' demeanour.
[43] In B. (K. G.) [1993] 1 S.C.R. 740 at 792, 79 C.C.C. (3d) 257, Lamer C.J. emphasized the handicap of the trier of fact in assessing the credibility of the declarant in such circumstances:
When the witness is on the stand, the trier can observe the witness's reaction to questions, hesitation, degree of commitment to the statement being made, etc. Most importantly, and subsuming all of these factors, the trier can assess
the relationship between the interviewer and the witness to observe the extent to which the testimony of the witness is the product of the investigator's questioning.
[44] Plaintiff's counsel readily recognizes that the Court, through video conferencing, would be able to ascertain the demeanour of the Iranian witnesses. However, this option has been discarded by his client. Plaintiff's counsel submits that the cost of providing video conferencing at the trial would be excessive. For instance, for two days, this would amount to over $22,000, a sum of money that is beyond the means of the Plaintiff. Considering the fact that the Plaintiff claims from the Defendant a sum somewhere near $2,000,000, while important, the sum of $22,000 to cover the costs of the video-conferencing does not appear to be disproportionate.
[45] In her request for directions dated October 19, 2005, Plaintiff's counsel proposes, as a first alternative, that the evidence of the Iranian witnesses be taken by telephone. This is the object of the present motion. However, she cautions in her letter that "[t]here appears to be some technological barriers as apparently Iran is on a restricted list with respect of teleconferencing". That being said, it is not clear from reading the affidavit and material submitted by the Plaintiff in support of the present motion whether or not "Iran is on a restricted list with respect of teleconferencing" as previously suggested by Plaintiff's counsel. The Plaintiff's general assertion that he simply "believes" that it is "possible" to obtain the evidence of Hassan Farzam and Razia Farzam through teleconferencing is not enough in the present circumstances to justify the making of an order in this regard.
[46] Keeping in mind that the Plaintiff has raised this alternative, it was up to him to bring satisfactory evidence to the Court that teleconferencing is both feasible from a legal and technical point of view within the time frame of a trial of 12 days starting in Ottawa on October 24, 2005. In this regard, important questions remain unanswered. For instance, who will be the company who will provide the teleconferencing services, at what costs and conditions? At what time of the day in Canada and Iran will this teleconference simultaneously take place? Where will the Iranian witnesses be located? How will the taking of their oral testimonies through telephone be coordinated in view of the fact that counsel have already indicated that the examinations in chief and cross-examinations involve simultaneous translation and may require two days of hearing? Will there be a Court's representative present? How will the room be organized and how will the decorum of the Court be maintained? How will any exclusion order of the witnesses be enforced at trial in the telephone conference facilities in Iran? Since the Iranian witnesses will testify in Farsi, how will the Court deal with the taking of the evidence in Iran? Should a stenographer be also present in Iran to ensure that the questions and answers are properly recorded? Are there special arrangements that need to be taken with the provider of the teleconference services, the Canadian Embassy or the Defendant to assure the presence of the Iranian witnesses and any representatives of the Defendant in Tehran?
[47] Despite the fact that inquiries with respect to the possibility of video conferencing had previously been made with AVW TEL-AV, an audio and visual service company in Ottawa, Plaintiff's counsel suggested at the hearing that the Plaintiff did not have sufficient time to make the required inquiries with respect to the particular conditions under which the proposed teleconference could now take place. However, by oral direction of October 5, 2005, that is, three weeks ago, the parties were specifically asked to send their written submissions to the Court concerning alternatives in the event that no admission on the content of the testimonies of the Iranian witnesses was possible. While the options of video conferencing and the taking of evidence by Commission are mentioned in Plaintiff's written submissions dated October 11, 2005, there is no mention of teleconferencing and this possibility was not raised with the Court at the trial management conference held by this Judge on October 12, 2005.
[48] Moreover, the Plaintiff has never submitted to this Court, nor apparently to the Defendant, "will say" statements of the Iranian witnesses in the form of duly sworn statements. It has been suggested previously that Mr. Hassan Farzam attended the Canadian Embassy in Tehranwith Mrs. Mohiti on many occasions. However, there is no way to know today what questions will be actually asked by Plaintiff's counsel. There is a great number of documents in this case. At this point, the Court ignores whether or not the Iranian witnesses will be presented with certain documents. How will the Court proceed in such a case? A further difficulty in this case, besides the simultaneous translation in English and Farsi of these testimonies, concerns the likely hearsay character of important parts of this evidence. In this regard, it has been suggested previously that Mrs. Razia Farzam may have heard the confidences of her daughter-in-law, Mrs. Mohiti. Will the Plaintiff attempt to enter into evidence statements that may have been made by Mrs. Mohiti? In turn, this will likely lead to numerous objections by the Defendant. It may not be possible for the trial judge to dispose immediately of all these objections. Indeed, since a transcript may not readily be available, the trial judge may be tempted to permit certain questions and reserve its decision on the objections to a later date. Holding a teleconference in these circumstances can only add to the length, costs and overall complexity of this proceeding.
[49] My final concern with the Iranian witnesses' testimonies by telephone or video conference is that of their reliability. In the present case, no evidence was tendered regarding Iranian laws as to administration of an oath and possible ensuing enforcement procedures. It is imperative that a witness who provides evidence in a jurisdiction other than Canada do so under oath in accordance with our laws, as well as in accordance with the local laws. While Plaintiff's counsel asserts that the Iranian witnesses have nothing to gain in this case, I note that the Plaintiff claims damages from the Defendant in the area of $2,000,000. It must be made clear to the Iranian witnesses that they cannot escape responsibility for their actions should they have any thought that helping another member of their family, the Plaintiff in this case, requires some shading of the truth. In these circumstances, assuming that teleconferencing or video conferencing are possible means to take the evidence of the Iranian witnesses, I believe that there should be a member of the Iran legal system, either judge or lawyer present at the local facility to administer the oath and explaining the consequences of perjury to the Iranian witnesses prior to administering the oath. Unfortunately, there is no indication in Plaintiff's affidavit and material that this could be done at this late date since the trial will actually start after the issuance of the present reasons for order and order.
[50] For these reasons, having balanced all relevant factors, the evidence before me fails to satisfy me that the issuance of an order that the evidence of the Iranian witnesses be taken by telephone is in the interest of justice and would secure, at this late date and in the absence of a detailed plan, the just, most expeditious and least expensive determination of the contested issues in this action.
[51] The second alternative suggested in the informal request for directions dated October 19, 2005, is establishing a Commission in Iranunder Rule 272, or something akin, as Plaintiff's counsel indicates in her letter dated October 19, 2005:
(...) we do not contemplate that the Plaintiff and Defendant would actually go to Iran. This would involve high costs, which are also beyond the means of the Plaintiff. Rather we would envisage that taking of evidence could be done officially in Iran, by a qualified lawyer or notary, on the basis of written questions accepted by the Defendant and approved by the Court. This method does not provide the Defendant the option of cross-examination. However, the intention would be to have the proceedings transcribed or videotaped.
[52] At this point, Plaintiff's counsel simply advises the Court that "[w]e are awaiting confirmation on whether these methods can be put into place in Iran and would be grateful for guidance on whether a motion to the Court on these matters would be appropriate at this time or whether these matters should be brought before the Court at the commencement of the trial".
[53] The second alternative for the institution of a Commission for the taking of evidence in Iran raised by Plaintiff's counsel in her informal request for directions has not been mentioned in Plaintiff's subsequent notice of motion for alternative means to introduce evidence, nor is it discussed in the underlying affidavit subscribed by the Plaintiff in support of the present motion, and as such, it is not a seriously pursued option before this Court. Moreover, an adjournment request by the Plaintiff for alternatively permitting same was dismissed by Lutfy C.J. on October 18, 2005. In any event, it does not appear possible that commission evidence could be taken before the commencement of trial. As such, the taking of commission evidence would likely require an adjournment of the trial. Accordingly, the Court declines making any order under rules 271 and 272 for the examination, on commission, of the Iranian witnesses.
CONCLUSION
[54] For the reasons stated above, I dismiss the Plaintiff's motion. Considering the result and all relevant factors, the Defendant will be entitled to his costs.
ORDER
THIS COURT ORDERS that the motion for an order allowing the Plaintiff to introduce the evidence of the Iranian witnesses at the trial of this action through the use of teleconferencing, be dismissed with costs in favour of the Defendant.
"Luc Martineau"
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