The Risks of Virtual Examinations
As my colleague, Nick Esterbauer, blogged about last week (here and here), the COVID-19 pandemic has pushed all of us, including the courts and the legal profession, towards the increasing use of technology. This has included the use of video-conferencing for examinations of witnesses in the litigation context. As we adapt to this new world, there are inevitably going to be ‘hiccups’. It is crucial to maintain the integrity of the process and to ensure that virtual examinations are not abused.
A recent decision of the Ontario Superior Court of Justice dealt with just such a situation. In Kaushal v Vasudeva et al., 2021 ONSC 440, the cross-examination of the respondent to an application was held over Zoom. The respondent required an interpreter for his cross-examination, and the respondent, his lawyer, and the interpreter all attended at the lawyer’s boardroom for the examination. They were all in the same room together, but on separate devices. The respondent’s wife and son came to the lawyer’s office with him, but according to the respondent they remained in the reception area at all times. It was confirmed on the record by the respondent’s lawyer that the only people present with the respondent during the examination were the lawyer and the interpreter.
Following the examination, the applicant noticed that a microphone and camera in the respondent’s lawyer’s boardroom had been left on, and he could hear the respondent’s wife and son speaking. It appeared to the applicant that the wife and son had listened in on the examination.
The respondent denied that his wife and son were present in the boardroom during his cross-examination. His lawyer’s legal assistant also provided affidavit evidence that the wife and son were not in the boardroom during the examinations.
The interpreter, however, ultimately swore two affidavits that the wife and son were present in the boardroom throughout the respondent’s examination, and were prompting the respondent’s answers by hand and facial gestures. The court accepted the interpreter’s evidence in its entirety.
The court concluded that there was misconduct during the respondent’s cross-examination on the basis that his wife and son were present and made hand and facial gestures to assist him with his answers. The court further concluded that the respondent’s misconduct amounted to abuse of process and that his affidavit responding to the application must be struck. It was the court’s view that it “must send a strong message that interference in the fact-finding process by abusing or taking advantage of a virtual examination will not be tolerated. In a broader sense, this type of misconduct strikes at the very heard of the integrity of the fact-finding process such that general deterrence is also a factor.”
Thanks for reading,
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