Even though remote (virtual) discoveries are convenient, this recently released court ruling reveals how virtual discoveries can be abused, and why it is, in my view, important to conduct both discoveries and trials in-person.
Discoveries are the cornerstone of just about every civil litigation file. In other jurisdictions this process may be called depositions, examinations, or interrogatories, but regardless of the name, the goal is always the same: to uncover what the evidence will be prior to trial, and to help assess the credibility of the witnesses.
Prior to the Covid-19 pandemic which made virtual discoveries the flavour-of-the-day, I had occasion to conduct discoveries all over Canada and the United States: even in circumstances where the discovery may have only lasted a few hours. But it was important to see those deponents in-person, to see how they behaved not only when they were being questioned, but also how they behaved when they were not being questioned, to see if they were squirming in their seats, to see if they were using requests for breaks legitimately, or were using them to regroup. If a deponent asks for a break during a virtual discovery, there is no telling what they are doing – are they speaking to others, are they reviewing notes, are they talking with their counsel, or as in this recent case, are they getting answers thrown at them from people off screen?
There are many articles that touch on the advantages of in-person interrogatories. But this recent case deals with a hard-core issue: flagrant lying that could have been prevented if the discovery was held in-person.
This recent court decision involved a daughter who got into a car accident while driving her mother’s vehicle, and believing her licence to be expired, the daughter called her mother and convinced her to attend the scene and act like she was the driver. The mother and daughter convinced the other driver to go along with this lie (on the mistaken belief that there would only be insurance coverage if the mother was the driver), and the mother kept that lie going:
- when she reported the matter to the police at the collision reporting centre;
- when she reported the matter to her insurance company;
- when she spoke to her lawyer, who was appointed by the insurance company, after the mother was sued by the other driver; and
- when she testified at her virtual discovery under oath during the personal injury proceeding.
The decision to have the mother’s discovery conducted virtually allowed the mother to continue the ruse, where her daughter was off-screen feeding answers to her mother: something that could never happen if the discovery was held in-person.
There is no doubt that virtual discoveries are convenient, but lawsuits and trials are not convenient: they are serious, and shortcuts should not be taken, in my view, unless there are some really unusual circumstances that make it impractical to conduct the discovery in-person.
I suspect, however, that many insurance companies will continue to subscribe to virtual discoveries because metrics can easily measure the cost difference between doing something virtually instead of in-person, while metrics can’t easily measure the often-imperceptible benefits of conducting discoveries in person. Litigation is an art-form: regrettably, funding for the arts often takes a back seat.
Tieu v. Aviva Insurance Company of Canada, 2024 ONSC 1110 (CanLII)
https://www.canlii.org/en/on/onsc/doc/2024/2024onsc1110/2024onsc1110.html