“The risk of mischief on a virtual examination is an area which has yet to be fully explored, although the possibility has been adverted to. Myers, J. in Arconti et al. v. Smith et al, 2020 ONSC 2782, did not disallow the use of a virtual examination just because of the risk of mischief, but was certainly aware of the possibility when he said, at para. 25:
I do not dismiss the concern for abuse of the technology by a party who might be so inclined. It would not be difficult, for example, to put a person or another computer screen outside the field of view of the camera that could enable improper prompting of the witness. I suppose with current Bluetooth technology, even where parties are in the same room, a witness can wear a hearing device and readily receive improper prompting. People can also send hand signals to witnesses in court as well.
It is clear 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.
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The integrity of the fact-finding process must be maintained. This includes the fact-finding process on virtual cross-examinations. This mischief could only have happened on a virtual examination. In a face-to-face examination, examining counsel has control over who is and is not present at the examination.”
Kaushal v. Vasudeva et al, 2021 ONSC 440 (CanLII) at 54-56 & 60