Executive Summary: Key Legal and Evidentiary Issues

• Four expert witnesses sought permission to testify remotely at a civil jury trial in Battleford.
   
• Saskatchewan's King's Bench Rules permit testimony by videoconference where the Court considers it appropriate.
   
• Courts increasingly favour remote testimony for expert witnesses, since credibility is rarely a central concern with this type of evidence.
   
• Cost and inconvenience to out-of-province witnesses were central factors supporting the application.
   
• Defendant argued the plaintiff had not provided sufficient evidence to justify remote attendance.
   
• Justice Sinclair granted the application, finding no prejudice to either party from remote testimony.
   

Facts of the case

The plaintiff, Darrell Paul Robertson, applied to have four expert witnesses testify remotely by videoconference at an upcoming civil jury trial in Battleford, Saskatchewan, scheduled to begin September 8, 2026. Liability had already been admitted by the defendant, Northland Chrysler Inc., leaving quantification of damages as the sole issue for trial. The four witnesses—Dr. Brian Rambaransingh and Dr. S.M. Esmail (both of Edmonton), Kelly Rathje (of Calgary), and Sylvia A. Wilson (of Edmonton)—were all out-of-province professionals expected to give opinion evidence regarding the plaintiff's injuries, physical limitations, and the financial impact of those injuries. The plaintiff estimated that requiring the witnesses to attend in person would cost approximately $100,000, though no breakdown of these costs was provided in the supporting affidavit material. The defendant opposed the application, arguing the plaintiff had not tendered sufficient evidence to support the request.

Policy and legislative provisions at issue

Rule 9-20 of the King's Bench Rules authorizes the Court to order that witness testimony be taken by telephone or any court-approved audio-visual method. Rule 1-3 sets out the foundational purpose of the Rules, directing that claims be resolved justly, in a timely and cost-effective manner, and that court processes remain proportionate to the amount involved, the importance of the issues in dispute, and the complexity of the proceeding. Although section 714.1 of the Criminal Code addresses remote testimony in criminal proceedings rather than civil ones, Justice Sinclair found its listed factors—including the location and circumstances of the witness, the costs of personal attendance, the nature of the anticipated evidence, and the suitability of the remote location—apt for guiding the analysis in this civil context, with minor modifications.

Reasoning and analysis

Justice Sinclair reviewed several factors bearing on whether remote testimony was appropriate. On location and personal circumstances, all four witnesses resided in Alberta and would need to travel significant distances, likely missing multiple days of work; this favoured granting the application. Regarding costs, while the plaintiff's $100,000 estimate was not accepted at face value, the Court acknowledged that requiring four professionals to travel and attend court out of province would still involve substantial fees, travel, and hotel expenses, which also favoured the application. On the nature of the anticipated evidence, the Court noted that expert opinion evidence is more readily received remotely than eyewitness testimony, since credibility is rarely central to expert testimony; this reasoning drew support from the federal Action Committee on Modernizing Court Operations' guidance paper on virtual hearings, as well as prior decisions including R v Martell, 2023 SKKB 31. Turning to the suitability of the proposed remote setup, the plaintiff's plan—testimony from professional locations with reliable video and audio equipment, with witnesses alone in the room and access to an electronic exhibit binder—was found satisfactory, particularly since the defendant raised no objection to the proposed mechanics. On potential prejudice, the Court weighed the general benefits of in-person testimony, including reduced risk of technical disruption and greater ease in presenting exhibits, against the specific circumstances of this case, concluding that any negative impact would be minimal given the experience of both counsel and the availability of electronic exhibit books. Finally, although the underlying negligence claim involved potentially significant damages and was set for jury trial, the Court found this did not weigh against remote testimony, since the witnesses were providing opinion evidence rather than key fact-based testimony.

Ruling and overall outcome

Justice Sinclair allowed all four expert witnesses—Dr. Brian Rambaransingh, Dr. S.M. Esmail, Kelly Rathje, and Sylvia A. Wilson—to testify remotely by videoconference during both examination-in-chief and cross-examination, in favour of the plaintiff, Darrell Paul Robertson. The order specified that counsel confer with the Local Registrar on scheduling, that each witness testify from a professional setting with reliable technology while alone in the room, and that counsel provide an electronic exhibit binder in advance for use during testimony. The Court retained discretion over the manner of receiving evidence throughout the trial. No costs were sought by the plaintiff on the application, and none were awarded.