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ARTICLE · 09 FEBRUARY 2021

Crossing The Line: Misconduct During Virtual Examinations

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Virtual discoveries and cross-examinations are part of the new normal in civil litigation. When examinations are conducted by videoconference...

CanadaLitigation, Mediation & Arbitration
Christopher Selby
Christopher Selby
Layne Hellrung
Layne Hellrung
Stephanie Mills
Stephanie Mills
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Virtual discoveries and cross-examinations are part of the new normal in civil litigation. When examinations are conducted by videoconference, parties save significant travel costs and minimize the disruptive nature of attendances on their business and personal lives. However, when a witness is not physically present with lawyers for the examining party, the examining party and counsel must be wary of potential improper conduct "off screen" in the room where the witness is present, including attempts to influence or coach a witness.

The recent decision of the Ontario Superior Court of Justice in Kaushal v. Vasudeva et al. (2021 ONSC 440) (Kaushal) demonstrates that the Court is alive to this risk and may make appropriate orders including to sanction misconduct during an out-of-court cross-examination.

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