In this Kelowna car accident case ICBC requested a video deposition of a past employer of the injury claimant.(Seder v. Insurance Corporation of British Columbia,2011 BCSC 823). The personal injury claimant alleged that she suffered both physical and psychological injuries from a car accident resulting in damages including loss of earnings.
At the time of the court application the injury claimant was employed as a server at a restaurant and pub in Calgary, Alberta. The trial is scheduled in Kelowna, British Columbia. The claimant’s boss at the restaurant had been interviewed by the ICBC lawyer and confirmed that she has evidence respecting the claimant’s employment at the restaurant . The employer indicated a reluctance to travel to and from Kelowna to attend the personal injury trial and she indicated a willingness to attend at deposition in the City of Calgary.
The lawyer for the injury claimant did not consent to the deposition but agreed to allow the witness to attend the trial by video conference. The proposal was not acceptable to ICBC because it would still be required to use the cumbersome interprovincial subpoena process to ensure that the witness would attend the video conference. However, the travel expenses would be reduced to a fraction of what they would be if she was required to travel to Kelowna.
The court agreed with the injury claimant and allowed the employer to give her evidence by way of video conferencing.
The court applied the concept of proportionality in the Rules of Court and found that proportionality does not mean cost saving alone. Master Young stated, “It requires balancing the interest of justice with cost effectiveness.” However the Master went out to comment at para 32-34,
“I do not know the quantum of the plaintiff’s claim, so I cannot compare the cost of this witness to the size of the overall claim. I can compare the cost of subpoenaing her to attend trial against the length and materiality of the evidence sought from her.
Ms. Jacob is not a central witness. She is being called to give brief evidence relating to loss of earnings. It is not proportionate to pay three days’ travel expenses to have her testify for an hour and fly home the same day. This travel expense could be avoided by permitting her to attend at the trial by video conference. She is a cooperative witness, but out of an abundance of caution the third party still intends to subpoena her. The cost of the applications cannot be avoided if the third party wants to ensure her attendance. That cost would be incurred whether she attended for a deposition or for a trial.
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.”
Posted by Mr. Renn A. Holness
