Getting a Key Witness Onto the Record from Another Province

The situation

The notice arrived with a date already circled: twenty-one days to finalize the witness list before the deadline the court's own scheduling rules imposed, and the one witness who mattered most, Lucia, was living in another province and had no plans to travel to Kingston for a dispute that was no longer really hers. Missing it risked losing the ability to call her at all.

Hieu, who co-owned the unit with his wife Gabriela, an early childhood educator, had spent over a year in a dispute with the condominium corporation over responsibility for water damage that had spread through his unit from a common-element pipe. The corporation argued the damage originated inside Hieu's own unit, from a fixture he was responsible for maintaining. Hieu argued the opposite: that it traced back to a shared pipe the corporation was responsible for under its own governing documents. The disagreement had proceeded far enough, through a failed mediation and months of correspondence, that a trial date was now set, with a formal witness list deadline attached to it.

Lucia had been the property manager at the building at the time the damage occurred and had personally inspected the pipe before she relocated out of province for an unrelated job change roughly eight months earlier, taking a position as a bookkeeper with a small accounting firm in her new city. Her notes and her recollection of what she saw during that inspection were, by a wide margin, the single most important piece of evidence either side had. Without her testimony, Hieu's case rested largely on inference drawn from photographs taken well after the leak had already caused the visible damage. With it, there was a direct, contemporaneous account of the pipe's actual condition from someone with no ongoing stake in the outcome and no reason to favour either side.

Complicating matters further, a portion of the evidence needed to corroborate Lucia's account sat with a provincial regulatory body responsible for licensing property managers, and a routine records request Hieu's file depended on was caught in a processing backlog that had already run months longer than expected. The trial date was fixed by the court and would not move to accommodate anyone's paperwork; the regulator's was not fixed at all. Getting Lucia's testimony onto the record, in a form the court would accept without objection, became the file's central task well before the trial itself began.

The complication

Two separate problems were converging on the trial date, neither within our control to speed up directly. The first was Lucia's location: a witness living outside the province cannot simply be compelled to attend an Ontario courtroom in person the way a local witness can, and Lucia, now settled in a new job and a new city, was unwilling to travel for what would have meant several days away from work, lost income, and a meaningful personal cost to her for a dispute that was no longer hers.

The second was the regulatory backlog. The records request filed with the provincial body that licensed property managers, seeking Lucia's inspection notes and licensing file from the relevant period, had been sitting in a processing queue for months by the time the trial date was confirmed. The delay was not unusual for that body, known for slow turnaround on file requests, but it was badly timed here, since the records were the corroborating evidence that would make Lucia's oral testimony more persuasive than her word alone, particularly if the corporation tried to suggest her memory of a single inspection, months later, could not be fully trusted.

Ontario's civil procedure rules do allow evidence to be given by video where a witness cannot reasonably attend in person, but the mechanism has conditions attached: the party relying on it generally needs to raise the issue with the court well in advance, show a genuine reason the witness cannot attend, and arrange a video connection reliable enough that the trier of fact can properly assess the witness's evidence, including how they respond under cross-examination. None of that happens automatically, and doing it badly, or raising it too late, can hand the other side a legitimate argument that the evidence should be given less weight, or excluded from the trial altogether.

The corporation's lawyer, aware that Lucia's testimony was central to Hieu's case, had already signalled an intention to object to any video arrangement on the basis that in-person testimony was preferable and that Lucia's unwillingness to travel was a matter of personal convenience rather than genuine necessity. That objection, if it had succeeded, would have left Hieu's case without its strongest witness and forced a difficult decision about whether to proceed to trial without her evidence at all, or seek an adjournment that risked losing the trial date entirely.

What we did

1. Brought a motion for permission to examine Lucia by video well ahead of the trial date, rather than waiting until closer to the hearing, because raising it early gave the court time to consider it properly and gave the corporation's lawyer no basis to argue the request was a last-minute tactic designed to limit their ability to prepare cross-examination. Filing early also meant any procedural objection could be resolved on paper long before trial, instead of eating into hearing time.
2. Documented Lucia's circumstances in a sworn statement, setting out her current employment as a bookkeeper, the distance between her new city and Kingston, the time and cost a round trip would involve, and the specific hardship it would impose on a new job where she had little accumulated leave. Giving the court concrete, sworn detail rather than a general assertion of unavailability meant the finding that she genuinely could not attend rested on facts the corporation could test, not on a bare claim it could dismiss as unsupported.
3. Proposed a specific, tested video protocol covering camera placement and framing so the court could see Lucia clearly throughout, a neutral location free of anyone who could coach or influence her answers, and a clear process for putting documents to her on screen during cross-examination without confusion about which page she was looking at. Addressing these details in the initial motion, rather than waiting to be asked, took away the exact grounds the corporation's lawyer was expected to raise about the fairness and reliability of remote testimony.
4. Pursued the delayed regulatory records request in parallel through a formal follow-up, escalating through the licensing body's own inquiry process rather than simply resubmitting the same request and waiting again, and clearly flagging the approaching trial date in writing so the file could be prioritized against others in the same queue. The backlog was not going to resolve itself on its own timeline, and every week that passed without a response narrowed the window to have the corroborating documents translated into usable evidence before trial.
5. Prepared a contingency outline of Lucia's testimony without the regulatory records, built entirely from her personal recollection and her own retained notes from the inspection, so that if the records did not arrive before trial, her evidence could still stand on its own rather than depending on documents that might never come. This meant the trial strategy never had to pause and wait on the regulator; the file could move forward on the strength of what was already in hand while the request stayed open in the background.
6. Conducted a full rehearsal of Lucia's video examination, using the same platform, camera, and internet connection planned for the actual hearing rather than a generic test call, and running through a full set of sample cross-examination questions rather than just checking that the picture and sound worked. The rehearsal surfaced a lag in the original connection that would have made the back-and-forth of real cross-examination difficult to follow, a problem far cheaper to find and fix days before trial than to discover live in front of the court.
7. Responded to the corporation's objection with written case management submissions addressing directly, point by point, the argument that Lucia's absence reflected personal convenience rather than genuine necessity. The submissions walked the court through the sworn evidence of her new job and circumstances and the tested video protocol together, showing that every specific fairness concern the objection raised had already been anticipated and answered rather than left for the corporation to raise again at the hearing itself.
8. Coordinated a pre-trial timeline with Lucia directly, confirming her availability window, the time-zone difference, and a backup connection method in case her primary internet connection failed on the day, so the video examination did not become a second point of logistical risk on top of the one it was meant to solve. A short written confirmation went to her afterward setting out each step, so nothing about the arrangement depended on memory alone as the trial date approached.
9. Prepared Lucia thoroughly for cross-examination through video, walking through how the corporation's lawyer was likely to challenge her recollection given the passage of time, so that her answers under pressure would be considered and accurate rather than rattled by an unfamiliar format she had never testified through before. The preparation covered pacing her answers for the video delay and pausing before responding to any objection, so the format itself never became a distraction from the substance of her evidence.

The outcome

The court granted permission for Lucia to testify by video, accepting that her circumstances were a genuine barrier to attendance and that the proposed protocol adequately protected the corporation's ability to cross-examine her fully. The regulatory records arrived nine days before trial, later than hoped but in time to be entered as corroborating evidence alongside Lucia's testimony rather than relied on as a replacement for it, which meant the contingency plan built around her recollection alone was never actually needed.

At trial, Lucia's account of the pipe's condition at the time of her inspection, delivered clearly over a stable video connection and tested at length in cross-examination, was accepted by the court essentially as given. The rehearsal had paid off; there were no technical interruptions during her actual testimony, and her recollection held up firmly against the corporation's attempt to suggest that memory of a single inspection, many months later, could not be trusted. Combined with the regulatory records, her evidence established that the damage had originated in the common-element pipe, placing responsibility for the repair costs with the corporation rather than with Hieu.

The trial proceeded on the original date despite both the witness location problem and the regulatory delay, neither within the parties' control. Hieu's repair costs, along with a portion of his legal costs for the proceeding, were ultimately recovered from the corporation. The file demonstrated that a witness who cannot attend in person is not necessarily a witness who cannot be heard, provided the arrangements are made early and tested properly in advance. Hieu, who had feared the case would collapse the moment Lucia said she would not travel, later said the video arrangement felt like the turning point of the entire file, well before the trial itself began. Gabriela said the clearest lesson for her was how much the outcome had turned on evidence nobody had thought to worry about until the deadline was already close.

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