Objections and Video Recording Cross-Examinations for Motions

In Schukla v. Fenton, 2021 ONSC 1340, the plaintiff’s lawyer adjourned the cross-examination of a defendant in respect of a motion due to the alleged improper conduct of the defendants’ lawyer. During 43 minutes of cross-examination, there were 37 objections and refusals, most of which were on the grounds of relevance.

Justice Cullin stated that the objections were principled. Defence counsel did not object simply for the sake of objecting.

However, while defence counsel may have been permitted to object, the manner of several of the objections were problematic. On more than one occasion, defence counsel editorialized while making his objections, even after being advised by plaintiff’s counsel that the commentary was unnecessary and unwelcome.

Instead of simply stating that he objected to the relevance of the questions, defence counsel repeatedly advised plaintiff’s counsel that he believed the questions exceeded the scope of the cross-examination and provided a detailed explanation on why he took that position.

Justice Cullin held that it was necessary once, and only once, for defence counsel to provide a detailed explanation for his objection. This would have been sufficient to preserve his position on the record. Thereafter, a detailed explanation was not required when making further objections for the same reason. Defence counsel should have simply succinctly stated that he was objecting due to relevance.

Justice Cullin stated that defence counsel’s repetitive commentary crossed the line between objecting and being obstructive. It was appropriate for plaintiff’s counsel to terminate the cross-examination. The defendant was ordered to re-attend for the continuation of his cross-examination.

The plaintiff’s lawyer asked for the subsequent cross-examination to be video recorded in order to record the conduct of defence counsel in the event that a further motion for directions is required.

The video recording of an examination is the exception, not the rule. Justice Cullin said that it would be a rare situation in which the court requires a video to assess what occurred between counsel during an examination.  Justice Cullin stated that “the prospect of inundating the court with ‘Lawyers Gone Wild’ videos makes opening this evidentiary door undesirable”.

Therefore, the request to video record the continuation of the cross-examination was denied.