Executive Summary: Key Legal and Evidentiary Issues

• Procedural controversy over whether cross-examinations on affidavits should proceed virtually or in person under Rule 1.08 of the Rules of Civil Procedure.
• Concerns raised by the Respondents about the Applicant’s alleged history of surreptitious audio/video recording and public posting of litigation-related material.
• Judicial interpretation of Rule 34.19 on when examinations may be recorded, and whether any unauthorized recording breaches that rule.
• Consideration of the deemed undertaking rule in Rule 30.1.01 and its inapplicability to these particular cross-examinations on affidavits.
• Balancing access-to-justice benefits of virtual hearings against risks of abuse, intimidation, and misuse of evidence, and whether in-person attendances actually reduce those risks.
• Case management orders fixing the mode of cross-examination, imposing safeguards against recording and dissemination, and adjusting the timetable toward the April 1, 2026 hearing without any monetary award or costs addressed.

Facts of the case
This case arises from a civil application before the Superior Court of Justice in Ontario involving a dispute between an individual unit owner, Robert Ty, and Ottawa-Carleton Standard Condominium Corporation No. 1106 and related respondents. The endorsement is a case conference decision, not a final ruling on the underlying merits of the condominium dispute. It deals with how cross-examinations on affidavits will proceed in preparation for a hearing scheduled on April 1, 2026. The Applicant, Mr. Ty, is self-represented. The Respondents are represented by condominium-law counsel. As part of the application record, Mr. Ty swore three affidavits dated June 26, 2025, June 30, 2025, and December 15, 2025, and the Respondents seek to cross-examine him on those affidavits. Initially, the parties had agreed that the cross-examinations would be conducted virtually. On September 17, 2025, Respondents’ counsel scheduled virtual cross-examinations with a court reporter for January 15 and 16, 2026, to be held by Zoom, and confirmed this to Mr. Ty by email. A Notice of Examination served on January 8, 2026, set the virtual cross-examination of Mr. Ty for January 16, 2026. The hearing of the application was set for April 1, 2026, so completing cross-examinations and filing factums in a timely way was necessary to keep the case on track.

Allegations about recording and online postings
The conflict that gave rise to this endorsement arose when the Respondents later changed their position on the mode of attendance. They asked the court for an order under Rule 1.08(8) directing that cross-examinations take place in person, abandoning the previously agreed virtual format. The Respondents alleged that Mr. Ty has a history of surreptitiously audio- and/or video-recording virtual meetings without authorization or consent, despite prior warnings, and then publicly posting those recordings on multiple websites. They further alleged that in December 2025 and January 2026, Mr. Ty continued to post online information and documents connected with this proceeding, including all documents served on him in the case and recent email exchanges with counsel related to the dispute. The Respondents characterized this conduct as a “campaign of harassment” that has negatively affected one Respondent’s livelihood. They argued that if cross-examinations were conducted virtually, Mr. Ty would have another opportunity to secretly record the examination and circulate it publicly for improper purposes. On this basis, they sought in-person cross-examinations, claiming that physically attending at an examination room would better protect against covert recording.

Legal framework and practice context
Associate Justice Kamal framed the problem within the modern civil-procedure approach to virtual attendances. The court emphasized that virtual proceedings and out-of-court virtual attendances are now an important way to promote access to justice. If parties agree on a virtual format, they should have a good reason to later insist on in-person attendance. The decision refers to recent authorities such as Spiegelman v. Avantia and Worsoff v. MTCC 1168, which recognize videoconferencing as a mainstream method of participating in court proceedings and note that most routine appearances in civil matters are presumptively virtual. Many court processes, including examining witnesses and conducting civil pre-trials, are now routinely handled virtually. While examinations for discovery and cross-examinations on applications or motions are technically distinct procedures with different purposes, the court found that the reasoning in cases like Worsoff about the mode of examinations remains relevant. The overarching principle is that the method of attendance is usually a matter of agreement, and a party insisting on a particular mode must justify that preference with a concrete, practical reason. The court rejected the notion that in-person attendance is automatically “better” or should be the default. Instead, the court must weigh the relevant factors and assess the balance of convenience in each case.

Assessment of the Respondents’ concerns about surreptitious recording
When the court asked how in-person examinations would truly minimize the risk of surreptitious recording, the Respondents’ counsel argued that in an in-person setting they would be able to see what is going on in the room and could spot recording devices. Counsel conceded, however, that hidden devices might still be used. The court found this undermined the force of their argument. If the core concern is surreptitious recording by a party who has allegedly done so before, simply moving the proceeding into a physical room does not realistically remove the risk. A determined litigant could still use concealed equipment both in person and online. This, in the court’s view, meant that the Respondents had not shown a meaningful protective benefit to justify overriding the original agreement to proceed virtually. The court also took into account that the Respondents themselves had initially arranged for virtual cross-examinations. Both sides acknowledged that there were no issues with technology or facilities for a virtual process and that both parties were competent and comfortable with virtual platforms. This history of agreement weighed against the Respondents’ later insistence on in-person attendance without a substantially new factual basis.

Access to justice and comparative advantages of virtual attendance
Associate Justice Kamal placed significant weight on access-to-justice considerations. Virtual attendances allow litigants to avoid taking full days off work to travel, battling downtown traffic, and paying for parking and transportation. They also permit parties and witnesses who are comfortable with technology to participate from their homes or another environment of their choosing, which can help reduce stress and anxiety associated with cross-examination. For lawyers and parties, virtual attendances can also save time, as travel is eliminated and waiting periods can be used more productively. While the court acknowledged that virtual proceedings are susceptible to abuse—for example, off-screen coaching of witnesses or covert recording—it stressed that the answer lies in implementing safeguards, not defaulting to in-person proceedings. In this case, the court noted that virtual proceedings can even reduce certain forms of conflict. By eliminating contact when entering and leaving examination rooms or during breaks, virtual attendances can minimize opportunities for intimidation, confrontations, or recordings of hallway interactions.

Application of Rule 1.08 and the balance of convenience
Turning specifically to Rule 1.08(6), the court considered several relevant factors. First, both parties agreed that facilities for virtual cross-examinations were readily available, and virtual attendance had in fact been the original agreed mode. Second, although the evidence in this matter is important, the court found that its reliability and integrity would not be compromised by a virtual format. Third, the balance of convenience favored proceeding virtually as originally scheduled, given the efficiencies and the parties’ prior agreement. Fourth, any risk of surreptitious recording could be addressed by targeted orders and undertakings rather than by switching to a less convenient and not significantly more secure in-person model. On this analysis, the Respondents had not met the burden of demonstrating why the court should override the earlier agreement and impose an in-person format.

Deemed undertaking rule and recording of examinations
The court then examined how the Rules of Civil Procedure address the use and recording of evidence. Rule 30.1.01, the deemed undertaking rule, normally provides that parties and their counsel are deemed to undertake not to use discovery evidence for any purpose other than the proceeding in which it was obtained. However, the court noted that Rule 30.1.01(4) excludes Rule 34 examinations of an affidavit from the scope of the deemed undertaking. Consequently, the deemed undertaking rule did not strictly apply to these cross-examinations. Despite that technical inapplicability, the Applicant provided the court and counsel with a verbal undertaking that he would not record the virtual cross-examinations or publish the transcripts. The Respondents nonetheless continued to argue for in-person attendance, suggesting that Rule 34.19 did not, in their view, forbid a party from making their own recording. The court addressed this by interpreting Rule 34.19(1), which states that an examination may be recorded by videotape or other similar means “on consent of the parties or by order of the court,” and that such a recording may be filed alongside the transcript. Associate Justice Kamal held that this language should be understood as a positive authorization: recordings are permitted only when there is consent of all parties or a court order. Any other recording, including secret audio recording, would therefore be a breach of Rule 34.19. In other words, the Rules already prohibit the type of surreptitious recording alleged by the Respondents.

Safeguards ordered by the court
To give concrete effect to the interpretation of Rule 34.19 and to address the Respondents’ concerns, the court imposed specific safeguards. First, the court ordered that the cross-examinations shall not be recorded by either party or by anyone else, except for the official recorder, namely the court reporting service engaged for the proceeding. Second, the court ordered that the transcripts of the cross-examinations shall not be published, distributed, or otherwise disseminated by either party, except as required for the purposes of the present proceeding. These orders sit alongside the Applicant’s verbal undertaking, reinforcing that any attempt to record or publicize the cross-examinations outside the permitted uses would be contrary to the court’s directions and a breach of the Rules. By crafting these conditions, the court sought to directly address the Respondents’ fear of online dissemination without sacrificing the benefits and practicality of a virtual format.

Revised timetable and case management orders
Because the cross-examinations originally scheduled for January 15 and 16, 2026 did not proceed, the court accepted that the timetable needed to be varied. Nonetheless, the hearing date of April 1, 2026, was left in place, underscoring the need for efficient case management. On consent, the court ordered that cross-examinations must be completed by February 27, 2026, with the parties agreeing to make best efforts to conduct them on February 25, 2026. The Applicant was ordered to serve his factum by March 13, 2026, and the Respondents to serve their factum by March 20, 2026. These case management directions ensure that the application remains on schedule despite the procedural dispute over the mode of examination.

Overall ruling, successful party, and monetary outcome
In this case conference endorsement, the court does not decide the underlying condominium dispute or award any substantive relief. Instead, it resolves a procedural disagreement over the mode of cross-examinations and sets out safeguards and a revised timetable. The core ruling is that cross-examinations will proceed virtually, as originally agreed, rather than in person as the Respondents had requested. The court also orders that no one other than the official recorder may record the examinations, and that the transcripts cannot be disseminated beyond what is necessary for the proceeding. On this specific procedural issue, the outcome aligns with the position of the Applicant, Mr. Ty, who supported a virtual format. For purposes of this decision, the successful party is therefore the Applicant. The endorsement contains no order for damages, no quantified costs award, and no other monetary remedy. As a result, the total monetary award, costs, or damages granted or ordered in this decision cannot be determined and, on the face of the document, none were awarded at this stage.