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Can a Non-Party Attend and Assist Counsel at an Examination?

The Rules of Civil Procedure govern examinations for discovery.  Silent though, is when a non-party will be permitted to attend an examination for discovery and assist counsel.  The answer can be found in case law.

An examination for discovery is not a public hearing, and as such non-parties cannot simply show up like they can at court.  Instead, the party seeking the non-party’s attendance and assistance must either get the consent of counsel or permission from the court.

Master Dash in Poulton v. A&P Properties Ltd., set out the following governing principles:

  1. since a cross-examination on an affidavit is not a public hearing, a non-party may attend to assist a party only on the consent of the other side or on the order of the court;
  2. the onus is on the party seeking such an order to prove entitlement to it;
  3. the non-party should not be a witness at the subsequent trial;
  4. the attendance of the non-party must not disrupt the examination process;
  5. the non-party must not take the role of witness or assist the witness is answering questions; and
  6. a court in exercising its jurisdiction as to whether to allow the presence of a non-party must do so having regard to both substantive fairness to the parties and the appearance of fairness.

While every case will turn on the specific facts, it appears that generally speaking experts may attend to assist with technical and complex evidence (although they cannot later be an expert witness at trial), as well as a resource person or expert assistant who is familiar with a file in a document-intensive case.

Noah Weisberg

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