With no clear end in sight to the pandemic, litigation has largely moved online. Most importantly, discoveries and cross-examinations on affidavits are now taking place virtually, presenting new challenges for the parties involved.

Kaushal v Vasudeva et al., 2021 ONSC 440 is a recent decision where the Court has sent a strong message that interference in the fact-finding process by abusing or taking advantage of a virtual examination will not be tolerated.

What can you do to preserve the integrity of a virtual examination?

Prior to, and at the end of questioning a witness, an examiner should ask that witness to:

  1. Identify anyone else in the room with them; and
  2. Identify what materials they have in front of them (including materials that might be on an electronic device).

If a witness looks distracted during examination, consider asking these questions again.

Why should you do this? Recall that Rule 34.15 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides for sanctions where there has been misconduct during an examination. Those sanctions include striking out all or a portion of a person's evidence, including any affidavit made by that person. Rule 38.12 further permits the Court to strike a document filed on application on the ground that the document is an abuse of the process of the Court.

Generally, relevant evidence is favoured and only struck out in egregious situations.[1] Kaushal provides new precedent for striking out affidavit evidence, indicating what kinds of egregious circumstances can arise during virtual examinations.

What happened in Kaushal?

Kaushal involved a motion to strike out evidence from the respondent's cross-examination on the grounds of abuse of process. The cross-examination took place over videoconference.

During the cross-examination, the applicant, his lawyer, and the court reporter were in separate locations. By contrast, the respondent, his lawyer, and an interpreter were all in one boardroom.

At the beginning of the cross-examination, the applicant's lawyer asked who was present in the boardroom. The respondent's lawyer confirmed on the record that the only parties present were himself, the respondent, and the interpreter.

After the examination was complete, the applicant noticed that the respondent's microphone and camera were left on in the boardroom. He heard the respondent's wife and son speaking, seemingly about what happened during the cross-examination. The applicant recorded the voices on his cell phone and shared the recording with his lawyer who asserted that the respondent's wife and son were present during the examination. The respondent's lawyer denied their presence. His legal assistant also provided affidavit evidence denying their presence.

In a twist of events typically reserved for courtroom dramas on television, the interpreter gave evidence that the respondent's wife and son were in fact in the boardroom and were prompting the respondent's answers by hand and facial gestures throughout the examination. This contradicted the respondent's affidavit, in which he said his wife and son remained in the reception area. The respondent also swore that he was informed by his lawyer that the applicant's lawyer had threatened the interpreter if the interpreter did not give evidence that the wife and son were present during the examination.

Ultimately, the court sided with the applicant, finding that there was no basis to accept that the interpreter was threatened or compelled and finding that the respondent's affidavit was deficient. The court granted the motion to strike on the basis that the respondent's conduct amounted to an abuse of the court's process.

Finally – and the following should serve as a caution to litigators – while the applicant did not seek sanctions against the respondent's lawyer, Madam Justice Gilmore independently raised the fact that she would have seriously considered a request for such relief and, in any event, believed that it would be inappropriate for the respondent's lawyer to continue as counsel in this matter, but made no order in that regard.

In short: transparency is paramount during virtual examinations.

[1] The Polish Alliance of Canada v Polish Assn. of Toronto Ltd., 2011 ONSC 1851, at para 42, cited in Kaushal v Vasudeva et al., 2021 ONSC 440, at para 59.