Case of the Day: Moore v. Bertuzzi

The case of the day is Moore v. Bertuzzi, 2014 ONSC 1318. In a February 2004 hockey game, Steve Moore, who played for the Colorado Avalanche, checked Markus Näslund of the Vancouver Canucks, causing some injuries. No penalty was called, and after the game, several Canucks players, including Todd Bertuzzi, as well as the Canucks’ general manager and coach, made public statements to the effect that there was a “bounty” on Moore. In a game between the two teams the next month, Bertuzzi hit Moore from behind, breaking his neck and ending his career. Bertuzzi was suspended from the league and pleaded guilty to assault and battery.

Moore sued Bertuzzi and the owners of the Canucks (Orca Bay Hockey L.P., Orca Bay Hockey, Inc., the Vancouver Canucks L.P., and Vancouver Hockey General Partners, Inc.) in Ontario. The claims were for negligence and for vicarious liability. Moore sought letters of request directed to Washington state to compel the Canucks’ former owner, John McCaw Jr., an American, to attend the trial in Toronto, or in the alternative to testify live at trial via videoconferencing or to give a pre-trial deposition.

The judge held that the motion for a letter of request seeking to compel McCaw to attend trial in Toronto was improper.

No Ontario court would ever honour a request from a foreign court to require a Canadian citizen, resident in Ontario, to cross an international border to attend as a witness at a civil trial in a foreign country. … It would be preposterous for any country to make that request of another country, other than a request for extradition, which is a very different matter. Just as Ontario would not honour such a request, so should Ontario courts decline to make that request of another country.

I think the judge was probably right in characterizing the request as beyond the pale. Even in the criminal context, the closest parallel I have been able to find is a treaty provision (e.g., in the US/UK MLAT) in which countries agree to try to facilitate the voluntary appearance of a witness in each others’ territory.

The judge decided that there were practical advantages to allowing McCaw to testify via videoconferencing at trial rather than via a pre-trial deposition. At least as a matter of US practice, the practical advantages the judge saw seem somewhat illusory. Questions at a pre-trial deposition can be taken subject to objections, and there are other means to obtain evidentiary rulings from a US court either before or during depositions. I suppose it’s also relevant to ask whether the Toronto trial was to be a jury trial. But in any case, the judge thought there were procedural advantages, and so he proceeded to consider whether Ontario law permitted him to make the request. He concluded that it did.

For Letters Blogatory purposes, the live question is whether there is any reason in US law that it would be improper to require a witness to give evidence via videoconferencing live at a trial rather than in a pre-trial deposition. I see some potential for problems. Suppose the witness is determined not to answer a question put to him. If Moore were proceeding in a more usual way, by seeking a pre-trial deposition under § 1782, then it would be clear that the remedy would be for the examining party to seek an order to compel the testimony from the US court that authorized the deposition and issued the subpoena. But how would this work at trial? It seems doubtful that the Canadian judge would have the power to compel an answer. These kinds of considerations could lead a US judge to look with skepticism on the proposal. But my prediction, given our highly liberal approach to international judicial assistance, is that a US court will approve the idea without much discussion.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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