Whether it is to gain an advantage or borne from genuine concern for the negative impact on the quality of evidence that a party’s presence in examinations may bring about, parties will sometimes seek to exclude opposing parties from attending out-of-court examinations, including examinations for discovery. It is not a common request (which sometimes takes the form of a demand) and can therefore catch counsel off guard with respect to whether their client is entitled to attend. This article explores case law to provide guidance on this matter.
The Inherent Right to Attend
Ontario courts recognize that parties to a proceeding have an inherent right to be present during out-of-court examinations, which right is rooted in their right to participate in and observe the process of their matter. However, while this right is not absolute, it is lost “only when cause, in the form of exceptional circumstances, is found to exist.” As explored in D’Onofrio v. Kaszas, 2019 ONSC 11, the bar for exclusion is high.
What Does the Case Law Say?
Justice Brown, in York University v. Markicevic, 2012 ONSC 5325 (“York University”), sets out the key principles:
- Parties have an inherent right to attend during cross-examinations or examinations for discovery;
- The court has the discretion to exclude parties from attending;
- The court does not establish blanket exclusions which apply to justify the elimination of a party’s right to be present;
- The party seeking to exclude another bears the burden of proving cause to justify exclusion, on a balance of probabilities;
- Realistic and substantial cause is required. There must be cause to show prejudice to the party to be examined or circumstances making exclusion necessary to secure the ends of justice; and
- Demonstrated intimidation is a cause to exclude a party, but intimidation must be proven and cannot be assumed from a set of circumstances.
Two Primary Paths to Exclusion
- Intimidation
This is the usual path to excluding an opposing party from attending. There is typically a very high evidentiary bar to satisfy. In York University, intimidation was raised as a concern. The party seeking the exclusion of the other provided evidence from their psychiatrist that the other party’s presence would have a negative impact on their mental health as they had always felt “intimidated, manipulated and threatened” by the opposing party. That evidence was not deemed sufficient to justify their exclusion. However, the court shows little hesitation in granting exclusion orders for matters involving allegations of sexual assault.
- Tailoring of Evidence
This is the usual path to excluding co-parties from attending each other’s examinations and is broadly not applicable to sought exclusions of opposing parties. In Wilton v. Bustard Brothers Ltd., 1999 CanLII 14778 (ONSC), the court addresses concerns about the tailoring of evidence as between opposing parties, and notes that while there is case law to support the exclusion of co-parties in certain circumstances, exclusion of opposing parties is “very different”.
Practical Takeaways
- It is unlikely that a party will be excluded from attending the examination of an opposing party. The bar for exclusion is very high as it undermines the inherent right of parties to participate and observe in their process.
- The burden rests with the party seeking exclusion.
- Arguments based on tailoring of evidence are generally limited to co-parties.
Conclusion
If you are considering seeking an exclusion order, be prepared to present compelling evidence. Otherwise, Ontario courts are likely to uphold the right of parties to attend out-of-court examinations.