Remote Mischief

One of the concerns about witnesses testifying in a virtual hearing is that other people might be present who can influence their testimony. It is for that reason that witnesses are often asked if anyone else is present in the room when they testify.

In Kaushal v. Vasudeva et al., 2021 ONSC 440 (CanLII),, a party in a civil action was cross-examined on their affidavit in the boardroom of their lawyer. The witness and the lawyer both stated that no one else (other than an interpreter) were present. The examination concluded. However, the lawyer conducting the examination heard conversation that suggested that the witness’s family had also been present during the examination. The interpreter eventually indicated that the family members had been present and had provided assistance to the witness in answering the questions during the examination. While the suggestion was made that the interpreter had been intimidated to providing that information, the witness’s lawyer and family members never gave evidence to support the suggestion or to deny that unauthorized persons were in the room. The Court concluded that the family members had been present in the room, contrary to the assurance of the witnesses and legal counsel, that they had provided assistance to the witness during the examination and that the interpreter had not been intimidated to provide false evidence.

The Court concluded that there had not only been interference with the witness, but that there had been a serious abuse of process. The Court struck out not only the evidence provided during the cross-examination, but also the original affidavit. The order likely ended the proceeding.

While this kind of behaviour in a virtual hearing is unlikely to occur frequently, it is reassuring that strong remedies will be imposed. This case forms a precedent for regulators conducting virtual hearings.

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