Date: 19990519
Docket: IMM-5394-98
BETWEEN:
KAI WING LAM,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE
PROTHONOTARY
[1] On 22 February 1999, I made an Order that cross-examination of the Respondent's Ms. Lerner-Frank, on an affidavit, to take place in Hong Kong, be video-taped. The Order left open, for the hearing judge to determine, whether there might be special circumstances, pursuant to Rule 316, to allow video-taped oral evidence to be tendered. The Order made it clear that all costs of video-taping be for the cross-examining Applicant. The Order is silent as to the cost of subsequent duplication of the video-tape. The point was not argued on the motion.
[2] Counsel for the Respondent now wishes a copy of the three hour tape, which counsel for the Applicant has agreed to supply, so long as the Respondent pays the cost of producing that second tape, about $100. Counsel for the Respondent feels the duplicate tape ought to be provided at the Applicant's expense. Thus the present motion, both as to responsibility for the cost of the tape and for an extension of time within which the Respondent must file an Application Record.
[3] Counsel for the Applicant believes both that he made it clear to the Respondent's counsel, at the conclusion of the cross-examination, that the Respondent would have to pay copying costs if counsel wished a copy of the tape and that counsel for the Respondent agreed. While this may well be so, that fact does not form the basis of my decision.
[4] At this point, counsel for the Applicant has made available, by way of a transcript contained in the Applicant's record, the evidence of Ms. Lerner-Frank on cross-examination, however counsel for the Respondent wishes a copy of the tape, without cost to the Respondent.
[5] Counsel for the Applicant refers to the video-tape in paragraph 67 and 68 of an 80 paragraph memorandum of law and argument, a quite brief portion of the memorandum, which runs 16 pages. Counsel for the Applicant was, at an early stage, prepared to produce the video-tape to counsel for the Respondent so that the Respondent's case might be prepared in a timely manner, the $100 cost of the video tape to be determined later. Counsel for the Applicant also offered a consent to an extension of time within which the Respondent might file the Record. Instead, we have the present motion, on short leave, without the benefit of affidavit material from either the lawyer acting for the Respondent at the hearing, or from a second lawyer acting for the Respondent who may or may not have agreed to pay the cost of duplicating the video-tape.
[6] The custom has always been that an examining party wishing a transcript of a discovery, or of a cross-examination, pays for that transcript, arranges for a reporter, and pays the reporter's attendance fee. Where the examined party also wishes a copy of the transcript it is for him or her to arrange for and to pay for a transcript. In the absence of a specific Order the same principle should apply when one party arranges for and pays for a video-taped record of a cross-examination and the party being cross-examined also wishes a copy of that proceeding.
[7] In the present instance, involving a video-taped transcript of a cross-examination, there is no reason to depart from the usual convention that should the examined party wish a transcript it is for the account of the examined party.
[8] The Respondent may have 21 days within which to serve and file the Respondent's record, time to run following immediate payment for and receipt of a copy of the video-tape. Costs forthwith payable by the Respondent Minister to the Applicant in the amount of $500.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
May 19, 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-5394-98
STYLE OF CAUSE: KAI WING LAM
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
MOTION DEALT WITH IN WRITING WITHOUT
APPEARANCE OF COUNSEL.
REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
dated May 19, 1999
WRITTEN SUBMISSIONS BY:
Mr. Lawrence Wong for Applicant
Ms. Paige Purcell for Respondent
SOLICITORS OF RECORD:
Lawrence Wong & Assoc.
Vancouver, BC for Applicant
Morris Rosenberg for Respondent
Deputy Attorney General
of Canada