Every now and then we come across a witness may reasonably be expected to become unavailable to testify at trial by reason of incapacity, death, or absence. Rules 34.19 and 36.01 of the Ontario Rules of Civil Procedure address how evidence should be taken in the circumstances.

The relevant rules are excerpted below:

VIDEOTAPING OR OTHER RECORDING OF EXAMINATION

34.19 (1) On consent of the parties or by order of the court, an examination may be recorded by videotape or other similar means and the tape or other recording may be filed for the use of the court along with the transcript.  R.R.O. 1990, Reg. 194, r. 34.19 (1).

(2) Rule 34.18 applies, with necessary modifications, to a tape or other recording made under subrule (1).  R.R.O. 1990, Reg. 194, r. 34.19 (2).

RULE 36  TAKING EVIDENCE BEFORE TRIAL

WHERE AVAILABLE

Definition

36.01 (1) In this rule, “party” includes a party to a pending or intended proceeding.  O. Reg. 8/07, s. 1.

By Consent or by Order

(2) A party who intends to introduce the evidence of a person at trial may, with leave of the court or the consent of the parties, examine the person on oath or affirmation before trial for the purpose of having the person’s testimony available to be tendered as evidence at the trial.  O. Reg. 8/07, s. 1.

Discretion of Court

(3) In exercising its discretion to order an examination under subrule (2), the court shall take into account,

(a) the convenience of the person whom the party seeks to examine;

(b) the possibility that the person will be unavailable to testify at the trial by reason of death, infirmity or sickness;

(c) the possibility that the person will be beyond the jurisdiction of the court at the time of the trial;

(d) the expense of bringing the person to the trial;

(e) whether the witness ought to give evidence in person at the trial; and

(f) any other relevant consideration.  O. Reg. 8/07, s. 1.

Expert Witness

(4) Before moving for leave to examine an expert witness under subrule (2), the moving party shall serve on every other party the report of the expert witness referred to in subrule 53.03 (1) (calling expert witness at trial) unless the court orders otherwise.  O. Reg. 8/07, s. 1.

Interim Costs, Pending or Intended Proceeding

(5) Where an order is made under subrule (2) for the examination of a witness in respect of a matter that is or will be the subject of a pending or intended proceeding, the court may, if it considers it appropriate to do so, order the moving party to pay to any other party, in advance of the examination, any or all of the costs reasonably expected to arise for the other party from the examination and any related cross-examination or re-examination.  O. Reg. 8/07, s. 1.

The Honourable Justice Hennessey discussed the difference between the two rules and the strategic considerations behind the invocation of one rule versus the other in M. (J.) v. Clouthier et al, 2013 ONSC 221.

In this case, the defendant, C, was convicted of historic sexual assaults on the plaintiff and others that took place while C was a parish priest. The plaintiffs brought a civil action against C and the diocese. C would be eligible for parole by the time of trial. At the time of the motion, C was 71 years old and suffered from diabetes and high blood pressure. One of the plaintiffs brought a motion under rule 34.19 for an order permitting him to video and audio record C’s examination for discovery and to tender the recording as evidence at trial in the event that C was unable to appear at trial.

C’s counsel argued that C did not suffer from serious health concerns and was not experiencing any at the time of the motion. C further argued that a videotaped examination involved greater cost and was less convenient than an examination that was conducted in the usual manner. The motion judge agreed with the plaintiff that there was a higher than average risk of C’s unavailability at trial. His age and health status suggest that he would be at risk of adverse health conditions sooner rather than later. The judge dismissed the argument that videotaping the examination would result in significant expense, inconvenience, or prejudice to the defendant.

While the motion was brought under rule 34.19, as rule 36.01 was central to arguments on the motion, the judge commented on both rules:

1. Traditionally known as taking evidence de bene esse, rule 36.01 presumes that the witness will not be available at trial as a result of his or her incapacity, absence, or death. Unlike rule 36.01, rule 34.01 allowes the videotaping of pre-trial examinations for unspecified purposes in unspecified circumstances.
2. An order under rule 34.19 does not provide for cross-examination or re-examination. Rule 36.01 allows for both, as though the witness is giving testimony at trial.
3. Matters relating to technical issues that may arise should be left to be determined by the trial judge if and when the plaintiff decided to introduce the videotape as evidence. At this point, the unspecified technical problems are speculative and are not part of the consideration of whether to permit the video recording.
4. The judge supports the view of Newbould J. in Midland Resources Holdings Ltd. v. Shtaif (2009), 99 O.R. (3d) 550 that a videotape of an examination was of greater assistance to the trier of fact than the “cold pages of a transcript”.
5. Should the plaintiff be required to rely on the evidence from the examination for discovery, he may be prejudiced if he had to rely on a printed transcript in lieu of a video recording. There was no good reason in this case to deny the trier of fact the best record of the evidence.

C’s counsel argued that if the grounds existed for an order pursuant to rule 36.01, then the evidence would be taken as if he was to be the trial evidence, with full examination, cross-examination, and re-examination. The plaintiff in this case did not rely on rule 36.01 because the proceeding was at an early stage and he be at risk of missing important advocacy opportunities if he finalized the examination of C.

The discussion as to the differences between rules 34.19 and 36.01 in this case is fascinating. Litigators should consider what evidence they already have and when the trial might occur in determining which of the two rules to invoke on a motion for leave to videotape the examination for use at trial.