The recent decision in Code Inc. v. Indepedent High Electoral Commission, 2012 ONSC 2208 (CanLII) ["Code Inc."] held that video conferencing is a viable option for the conduct of cross-examinations of foreign witnesses on a jurisdictional motion.
In Code Inc., the Plaintiff moved to to compel two of the Defendants’ affiants, on affidavits filed on a forum non conveniens motion, to attend for their cross-examination in Ottawa or, alternatively, in London, England. While the decision suggests that the Defendants had not attorned to the Ontario court’s jurisdiction, it is unclear why the Defendants have not also moved for stay of the action based upon lack of jurisdiction simpliciter.
The Plaintiff, a Canadian corporation with head offices in Ottawa, carries on business providing democratizing countries around the world with supplies and services required to conduct elections. The corporate Defendant, with head offices in Baghdad, administers elections in Iraq. The individual Defendant was a director of the corporate Defendant, also a resident of Baghdad. The Plaintiff sued for recovery of the balance allegedly owing (US$810,102) under a US$9.3M contract between the parties for the purchase of electoral supplies. Presumably, there was no forum selection or exclusive jurisdiction clause, although the reasons of Master Pierre E. Roger are silent on this point.
The Plaintiff argued that Baghdad is a “dangerous city with widespread risk of death and serious injuries to civilians, even within the Green zone (international military zone). Consequently, the Plaintiff is not prepared to allow any of its employees or any of its lawyers to travel to Baghdad.” (at para. 6)
The Plaintiff suggested cross-examinations be conducted in either Ottawa or London, England, at the expense of the parties with the issue of costs to be resolved on the forum non conveniens motion. The Defendants proposed cross-examinations by video conference at the Defendants’ expense or, alternatively, if the Plaintiff insisted that the affiants attend personally in Ottawa, they suggested that the Plaintiff pay for the Defendants’ travel to Ottawa and required accommodation.
After comparing the estimated travel costs to Ottawa and London, Master Roger noted the Plaintiff’s objections to video conferencing, including the applicable factors in exercising the court’s discretion; namely:
a) Complexity and volume of facts involved in the cross-examination.
b) Logistics issues of video conferencing with language, time-zone, cultural and legal issues surrounding exhibits and private video conferencing in Iraq.
c) Potential intimidation of witnesses more difficult to address during video conferencing.
d) Defendants that are not impecunious and could pay for their travel with these costs dealt with at the motion. This to ensure that if the Plaintiff is successful at the motion it does not pay for costs in advance of the motion that it might not be able to collect from the Defendants (adding insult to injury considering the balance allegedly owing).
e) Convenience is not an issue as the Defendants’ affiants are or were prepared to travel to Ottawa if their costs were covered.
f) The Defendants have not provided evidence to support some of the allegations made in their factum (such as their crushing work load in Iraq and how it would negatively be impacted by their travelling to Ottawa) nor have they addressed how the video conferencing could actually be arranged in Iraq. (at para. 11)
Once again, there appears to be some analytical confusion regarding the issue of attornment in the context of a motion challenging jurisdiction:
 The Defendants argue that on a forum non conveniens motion, when the Defendants have not attorned to the jurisdiction and are in fact challenging the jurisdiction of the Court, the Court has no jurisdiction to order a foreign defendant to travel to Ontario. They referred to four cases on jurisdiction which I have considered. Further, they argue on this motion that cross-examination by video conferencing is the most efficient and effective method of conducting these cross-examinations and that it would not be just or convenient in this case to order them to travel to Ontario. They point to factors that the Court should consider, see paragraph 12 of their factum.
A motion based upon forum non conveniens is normally brought in circumstances where the foreign defendant has either conceded that Ontario has a “real and substantial connection” to the subject-matter of the dispute, or to the foreign defendant (by presence-based, consent-based or assumed jurisdiction). In other words, attornment is irrelevant on a forum non conveniens motion.
With respect to the conduct of examinations of out-of-province witnesses, Master Roger notes that Rule 34.07 of the Rules of Civil Procedure provides for situations where the person to be examined resides outside Ontario. The Master cites with approval the decision of Justice Newbould in Midland Resources Holding Ltd. v. Shtaif (2009), 99 O.R. (3rd) 550 (at para. 9 and 20), on the applicable law and test:
Unlike when a person resides in Ontario, there is no prima facie right of someone who resides outside of Ontario to be examined where he or she lives. The test for determining the location of the examinations is what is just and convenient for both parties, based solely on the circumstances in each particular case. There is no prima facie right of either party with respect to the place of examination.
As stated, it is conceded on behalf of the defendants that rule 34.07(1)(f) gives a court jurisdiction to order that the examination of a person who resides outside of Ontario be held by video conferencing. I agree with this interpretation of the rules.
Relying on rule rule 1.04, which provides that “the Rules are to be construed to secure a just, most expeditious and least expensive determination and that proportionality is a factor to consider”, the Master concludes that there is no presumption for or against video conferencing. However, despite the territorial limitations in jurisdiction, even where a party is contesting jurisdiction, the court retains an inherent jurisdiction to control and regulate its processes to order a party to submit to cross-examination by video conferencing.