Video Evidence Is Admissible

In the past several years there has been a great increase in the receipt and admissibility of video evidence in civil litigation, as the necessary technology has improved and become ubiquitous.

During the COVID-19 pandemic, video evidence is commonplace. It is not confined to witnesses testifying to routine or inconsequential matters. It is almost always tendered by consent.

Judges have become accustomed to assessing the credibility and reliability of evidence given by a witness seen only on a video screen. Early concerns have been allayed, at least to some extent, by experience.

Section 73(2) of the Evidence Act authorizes the receipt of testimony by any “technology that allows the court, the parties and the witness to engage in simultaneous visual and oral communication”.

I will call this “video evidence”. The court may exercise a discretion to permit video evidence, where the necessary technology is available, unless “one of the parties satisfies the court that receiving the testimony in that manner would be contrary to the principles of fundamental justice”.

If there is an objection, subsection (3) lists the following factors for consideration in deciding whether to allow video evidence:

(a) the location and personal circumstances of the witness;
(b) the costs that would be incurred if the witness had to be physically present;
(c) the nature of the evidence the witness is expected to give;
(d) any other circumstance the court considers appropriate.

Kasatani v Matsubara 2020 BCSC1960 referred to the following cases addressing the exercise of the court’s discretion under s. 72(3):

• Nybo v. Kralj, 2010 BCSC 674at paras. 8 — 12;
• Slaughter v. Sluys, 2010 BCSC 1576at paras. 7 — 12;
• Seder v. Insurance Corporation of British Columbia, 2011 BCSC 823at paras. 26 — 37;
• Miley v. Abulaban, 2014 BCSC 1905at paras. 6 — 17;
• Grahovac v. Hartfiel, 2015 BCSC 1142at paras. 34 — 73; and
• Singh v. Chad, 2018 BCSC 1860at paras. 89 — 93.

In none of these cases did an objecting party satisfy the court that allowing video evidence would, in the circumstances of that case, be contrary to the principles of fundamental justice.

Slaughter is the only one of these cases in which video evidence was not allowed, and it was a split decision in that Justice Beames exercised her discretion to permit video evidence in respect of some witnesses, but not others. At para. 10, she rejected an argument that proper and full cross-examination cannot take place where witnesses appear by video. In exercising her discretion, she took into account the extent to which the evidence would be contentious.

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