In a recent ruling, Mr. Justice Robert Smith was asked to order that three plaintiffs in a personal injury action be examined for discovery in the absence of each other. The case is Heasley v. Labelle, 2013 ONSC 2601 (CanLII). One of three plaintiffs had been injured when struck by a school bus and the other two were her daughter and granddaughter, who were advancing FLA claims.
The defence argued that there were issues of credibility such that it was in “the interests of justice” that the plaintiffs be questioned separately. The plaintiffs responded that they wished to be present at their examinations, to support one another.
Justice Smith dismissed the motion. He relied primarily on a decision of the Court of Appeal in Liu Estate v. Chau 2004 CanLII 8234 (ON CA), (2004), 69 O.R. (3d) 756 (Ont. C.A.), which had dealt with the exclusion of a party during some of the testimony given at trial. That case emphasized the right of a party to be present during examinations for discovery.
His Honour also considered a rather old B.C. Court of Appeal decision, Sissons v. Olson, [1951] B.C.J. No. 77 (C.A.), which had held that the onus on the party seeking to exclude another party from an examination for discovery is lower than it would be at trial. Although that case has been followed in Ontario, Justice Smith found that he was bound to follow Liu Estate rather than the Sissons line of cases. He stated the rule this way:
To summarize, each co‑party has an inherent and fundamental right to be present at all parts of the litigation process, including discovery and at trial. A co‑party will only be excluded if the moving party shows there is sufficient evidence to demonstrate a real risk of tailoring, parroting, intimidation, disturbance of the proceeding, or where the ends of justice require exclusion. The onus on the moving party is to present sufficient evidence of the above factors to overcome a co‑party’s fundamental right to be present at all parts of the litigation process. The nature of the relationship between the co‑parties by itself is not enough to constitute cause for exclusion.
In contrast, a different approach was taken by Master Joan Haberman in a case that Jill Alexander sent to me recently: DiMartile et al. v. GMCL, 2012 ONSC 3149 (CanLII). That decision was rendered about a year ago. It was an employment case, in which each of four plaintiffs was suing GMCL as a result of changes having been made to their pension plans. As the Master noted, a central part of the case was the allegation that misrepresentations had been made to the plaintiffs and relied upon by them, to their detriment. She said, “it will be critical to get a clear picture of what it is each understood, and how and why each relied on these representations to their detriment.”
The Master referred to the B.C. Sissons case (supra) and said that it “has been followed repeatedly by Ontario courts, even in cases that do not involve co-parties and is often referred to as the leading case in favour of the less stringent approach to motions of this kind.”
She also explored why an examining counsel might want to examine separately opposing parties who are aligned in interest:
[60] There is an art to putting together questions for an effective examination for discovery and for setting the right tone at each stage of this event. Depending on the nature of the case, examining counsel may want to start off gently, gaining the party’s trust and making him comfortable enough to speak easily and openly. As more contentious issues arise, the tone may change and become more confrontational. This is all a matter of strategy and works best when the party being examined does not see what is coming next.
[61] Similarly, the line of questions may be designed to elicit a series of responses, each of which, in isolation, may appear to be benign. When the answers are gathered together, however, and wrapped up as the factual foundation for the final few questions on which the case may turn, the element of surprise may be critical, all the more so when credibility is in issue. This is not trickery – it is legitimate strategy designed to lead to an accurate and honest series of responses.
[62] Allowing co-parties to sit in on the discovery of one another interferes with this process. After the first plaintiff has been examined, the others will know:
• The precise questions that will be asked of them;
• The order in which the questions will likely be asked;
• How they will be asked – counsel’s approach, either to gain their trust or throw them off their pace;
• Where the first plaintiff may have gotten caught, so that the response can be modified in order to avoid the same pitfall;
• What admissions are being sought, thereby providing time to figure out how to avoid making them; and
• How various responses may be challenged.
Master Haberman referred as well to two cases that had been cited to her by the plaintiffs. She said that there were two streams of authority in Ontario, the Sissons one (which posits a lighter onus for exclusion at the discovery stage) and a second line of cases that suggest a higher onus. She did not, however, refer at all to the Liu case (which had been relied on by Justice Smith in Heasley). (And likewise, it appears that DiMartile was not cited to Justice Smith either.)
So, in the end, Master Haberman said that she could see no reason to move away from the Sissons approach to a more onerous test, as the plaintiffs were urging her to do:
The plaintiffs effectively asked this court to accept this new and more stringent test than any of the cases have applied when dealing with co-parties before Besner. In view of the general movement towards a more lenient approach that has generally been adopted in Ontario regarding the exclusion of co-parties, I see absolutely no basis for moving in this direction.
She ordered that the examination of each plaintiff should take place in the absence of the others.
It is difficult to reconcile these two decisions, largely because they proceeded on different bases. Master Haberman apparently did not have the Liu Estate case cited to her. Although Justice Smith did not refer to the DiMartile case, I am advised that it was cited to him by counsel for the defence.
Master Haberman focused, to a large extent, on the practical, advocacy-based reasons for separate examinations. There was no such analysis in Heasley.
One thing that I think is significant, and to which Master Haberman made reference, is the extent to which the interests of the plaintiffs coincide. In DiMartile, while each plaintiff claimed to have had his or her pension plan altered, separate representations were apparently made to each. So, while there was some overlap among the plaintiffs’ cases, it was only partial.
In Heasley though, the interests of the plaintiffs were completely the same. It seems to me that the mischief of tailoring or parroting of evidence is much greater in that type of case, perhaps warranting separate examinations.