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:
- 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;
- the onus is on the party seeking such an order to prove entitlement to it;
- the non-party should not be a witness at the subsequent trial;
- the attendance of the non-party must not disrupt the examination process;
- the non-party must not take the role of witness or assist the witness is answering questions; and
- 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.
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The Rules of Civil Procedure are quite clear as to when a lawyer may answer questions on behalf of their client during an examination for discovery. The Rules though, appear to be less clear with respect to cross-examinations on affidavits, and as such, attention must be turned to case law.
According to Rule 31.08 of the Rules of Civil Procedure, questions on an oral examination for discovery, “…shall be answered by the person being examined but, where there is no objection, the questions may be answered by his or her lawyer”. Simply put, if the examining party objects to an answer being given by the deponent’s lawyer, the examined party must answer the question and not their lawyer.
The rationale for this can be found in the Divisional Court decision of The Polish Alliance of Canada v. Polish Association of Toronto, where Justice Lauwers (quoting the Law of Civil Procedure in Ontario) states that: “…counsel for the party being examined should not interfere with the examination; the examiner is entitled to the evidence of the witnesses and not to that of counsel”.
Justice Lauwers provides further rationale (quoting Witnesses): “The primary reason for prohibiting communication between counsel and witness while testifying at trial is to prevent counsel from telling the witness what he or she should say. The same concern exists during a discovery, and consequently, the same basic restriction against counsel/witness communication should be in place”.
Therefore, whether it be an examination for discovery or a cross-examination on an affidavit, a lawyer may answer questions on behalf of the deponent, only if the examining party does not object. There is no distinction between the two forms of examinations.