Cross-Examination By Video Conferencing: Still The Exception To The Rule

Under what circumstances can a witness be compelled to attend cross-examination outside of the jurisdiction in which he/she lives versus, say, by video conferencing? While the law is evolving, examination by video conferencing is still the clear exception to the rule and for some good reasons.

In 1337194 Ontario Inc. v. Whiteley, 2004 CarswellOnt 2312, the defendants were located in the U.S. and the plaintiff in Ontario. The defendants requested that discoveries be held by video conference. Master Dash held that the importance of counsel directly observing the demeanour of a witness in person is of great importance, particularly in cases where the witness's evidence is vital to the issues in the action. Master Dash concluded that discoveries by video conference should be compelled against the wishes of the examining party "rarely and only in exceptional circumstances, particularly where as here credibility of the witness to be examined is a key issue." Whiteley is