The case of Kaushal v. Vasudeva et al., 2021 CarswellOnt 769 (S.C.J.), although not a family law case, has transferable lessons that all litigants must be aware of. In this case, the court was tasked with determining whether a parties Affidavit should be struck from the record due to an abuse of process during a virtual examination.

BACKGROUND

In this case, the parties were participating in a virtual examination. It is standard that at the commencement of an examination, the parties are asked on the record who is present in the room. In this case, the parties both confirmed that only their lawyers and one side’s Punjabi interpreter were present. However, it was quickly discovered that this was not the case. The Respondent believed that their microphone was muted and once the examination ended, they proceeded to communicate with an unidentified person or persons in the background. It was very clear that there was another person in the room with them and as such, the examination was not confidential, and the Respondent failed to disclose their presence.

ANALYSIS

In this case, the Respondent's lawyer and the interpreter told a different story as the lawyer deposed that there were no other individuals in the room, and the court reporter deposed that the Respondent’s wife and son were present and communicating with him during the questioning via hand and facial gestures.

The Applicant moved to strike the Respondent's Affidavit for the main application as an abuse of the court's process and for engaging in misconduct during the cross-examination.

What is even more troublesome about this case was that the Respondent’s lawyer and legal assistant had deposed that there was no other individual in the room at the time of the examination. There were various exchanges prior to the interpreter swearing his Affidavit. There were suggestions that he was threatened to lie. At one point he agreed to stretch the truth, however he eventually did not feel comfortable and rewrote the Affidavit that was originally drafted for him to be in line with the truth. However, it was relieving when the interpreter deposed that he was never threatened.

The judge took issue with the fact that the Respondent offered no explanation in his Affidavit to contradict the court reporters Affidavit that confirmed that his wife and son were present during the entire examination and communicating with him, nor did his wife or son swear an Affidavit to that effect.

Upon a fulsome review of the evidence and all of the Affidavit’s presented, the judge concluded that “it is the onus of the Applicant to show that it was more likely than not that the Respondent was assisted in his evidence by the hand and facial gestures of his wife and son. I am persuaded based on my review of all the evidence in this case, and after receiving the submissions of counsel, that there was misconduct during the Respondent’s cross-examination. I find that his wife and son were present but off screen and made hand and facial gestures to assist him”.

In a world where Zoom has become the new court room, now more than ever confidentiality is crucial. As those who have partaken in a zoom court appearance could attest to, the registrar at the beginning of every court appearance reminds litigants that they cannot record the hearing or disseminate same. Examinations and Questioning also take place in family law proceedings.

So, what are we do to now that technology seems to have made its way into our regular practise of law?

The judge in this case reminded us that “the use of virtual examinations will continue by this Court and will become the norm for the foreseeable future. Even when the pandemic is behind us, the comfort level we have all gained with this form of technology is such that it is likely to continue to be a strong option for parties, particularly where a witness is out of country, out of province or has mobility or health issues. Given the inevitable future of virtual examinations in the legal system, it is up to the judiciary, as its gatekeepers, to ensure that this tool is not abused nor seen to undermine our globally admired legal system”.

As such, in the above example, had there not been any evidenced misconduct during the examination, the court would have had no issue relying on the evidence.

The Applicant’s motion was granted and as such, the affidavit of the Respondent sworn October 26, 2020 and any other evidence from the Respondent by way of response to the Application was struck.

It was not the use of technology that caused the Respondent’s Affidavit to be struck, but the Respondent’s misconduct which the court reminds us was also taking place during “in person” court hearings prior to this virtual world.

The moral of the story is not that technology is a rampant issue in our court system, more so that parties must be aware of the strict rules governing their court appearances and also understand that as always, they will be held to any statement made under oath and may suffer the consequences of dishonesty.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.