Lazar v. TD General Insurance Co. 2017 Ont Div Ct
Question was whether the 2 plaintiffs should be excluded from being present at each other’s examination for discovery. The party seeking the exclusion must demonstrate that exclusion is necessary to meet the ends of justice. Factors include: whether the co-parties have common interests; whether the co-parties are represented by the same lawyer; whether it appears that the examinations for discovery of co-parties will cover the same grounds; whether credibility will be a factor or an issue in the case; whether there is a risk that evidence is likely to be tailored or parroted; whether a party is likely to be intimidated; whether the proceedings are likely to be disturbed or disrupted; whether there would be prejudice to the excluded party; and, generally, whether the ends of justice require the exclusion. The court noted that: where credibility of co-parties with the same interest will be the central issue at the trial, an exclusion order will attenuate the risk of a co-party unconsciously tailoring his or her evidence in a desire to achieve consistency. It will also allow the party seeking exclusion to test the reliability and credibility of the evidence of each of the co-parties and, in particular, test their independent recollection of the facts in issue, untainted by the prior knowledge of the questions they will likely be asked and the answers given by their co-party. Unless the plaintiffs are able to set out specific aspects of prejudice, then general aspects of possible prejudice, such as right to be present to gauge the effectiveness of counsel, instruct counsel, and evaluate reliability and credibility of each other, are not sufficient. In this case, all of the factors militating against each plaintiff attending the other’s discovery were present and the normal right to attend had to yield to the right of the defendant to use its discovery to the fullest potential and obtain the evidence of the plaintiffs without any possible collusion.
Written by Jonathan Speigel Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.