Answering the question of who should be allowed to attend at an examination for discovery involves an exercise in balancing two competing interests: the interest of upholding the privacy of examinations as a pre-trial discovery process relevant to the parties’ dispute amongst themselves versus permitting ways to make the discovery process move along more efficiently and more comfortably for each of the parties.
The Rules do not provide guidance on this aspect of procedure for oral examinations, so we must look to how the courts have interpreted this issue. The starting point is the general legal principle that an examination for discovery is not a public hearing; it is a private matter between the parties themselves and as such, is not open to anyone to be able to freely attend and observe at will. It is settled law that it is only the parties to the action, and their counsel of record, or in the case of a corporation, its agent, who have an inherent right to be present at an examination for discovery of any other party in the action.[1] The party’s right to attend, though not absolute, will only be limited for “cause”, where exceptional circumstances arise such as where intimidation to another party is proven to be likely or where evidence is likely to be tailored or parroted.[2]
Non-Parties’ Right of Attendance
The other side of the same coin of the courts’ staunch protection of a party’s right to be present at an examination, absent truly exceptional circumstances, is that the scope of persons who do hold this guarded right is small. Any other person beyond the two accepted categories of the parties themselves and their counsel of record, whose presence at the discovery is desired, for whatever reason, will be permitted only as a circumscribed exception. Applying this, the courts have stated that there is only one of two ways in which a non-party to the action may be permitted to attend at an examination for discovery: either with consent of the opposing party or with leave of the court.[3]
As for when the court is likely to grant leave, it is seen in the caselaw that this is highly fact-specific; the underlying principle is that the party seeking to bring in the non-party must prove that person’s presence is “necessary”. The question is “whether the non-party’s presence is necessary for the proper representation of the examining party?”[4]
The instances in which the courts have granted leave for a non-party to attend at an examination for discovery include where the party requesting has special needs requiring a support person, or the non-party has expert knowledge of the technical subject-matter, or familiarity with the financial records or documentation in a case with voluminous productions.
Experts
The courts have permitted experts to attend at a discovery for the purpose of assisting counsel, in certain circumstances, subject to the caveat that an expert who attends at a discovery cannot then be a witness at trial.[5] The rationale behind inclusion of this category of persons is that the level of expert knowledge of this person, usually technical or scientific of some sort, is “necessary” in terms of allowing counsel to conduct a proper and effective examination, given the complex subject-matter of the action.
The scope of who is included within this category of “expert” for this purpose has been slowly widened by judicial interpretation. In the case of Tridici v M.E.P.C. Can Properties Ltd., Madam Justice VanCamp stated that “it will only be in unusual circumstances of technical difficulty that such an expert will be present”.[6] In that case, the expert who was allowed to attend was an electrical engineer, whose presence was deemed necessary in order that a satisfactory examination be held, given that the direct issue at play was negligence arising out of the defective design and improper installation of an electrical system.
Thereafter, the scope of experts allowed to be present began to be expanded in International Chemalloy Corp. v Friedman, where the court allowed a chartered accountant who had analyzed the voluminous productions in the action, to attend, as it was shown that his presence would make for a shorter and more effective examination for discovery in this convoluted case.[7] These persons have been characterized as “expert assistants”, and are persons whose ability to manage voluminous documents or whose unique familiarity with complex financial records, for example, makes them candidates to be given leave to assist counsel at an examination.[8]
The Ontario Superior Court drew the line at who can qualify for attendance in Poulton v A&P Properties Ltd., where the plaintiff real estate developer was seeking to bring a real estate agent who acted on its behalf to attend the examination and the court rejected this. The court said that “the issues are not unduly technical or complex that require his commercial real estate expertise…there is no reason why plaintiff’s counsel cannot fully inform himself of all the facts from [the real estate agent] prior to the commencement of the examination”.[9] Thus, it is clear that absent technical subject-matter, or an extraordinarily voluminous amount of convoluted productions of which the non-party has special knowledge, a normal case will not warrant the presence of an “expert” or “expert assistant” to be necessary.
Support Persons
The other main category of persons who, increasingly as of late, have been granted leave to attend at examinations for discovery are emotional or moral “support persons” whose presence is shown to be necessary to encourage a party to be able to get through the, often stressful, discovery process.
In Lipovetsy v SunLife Assurance, the insured was given leave to bring a “companion” to each examination as her support person or “emotional anchor” to reduce her state of stress and anxiety.[10] In allowing this, the court said there must be evidence that the insured’s mental condition is such that the support person’s presence is warranted; here, there was evidence that the plaintiff suffered from emotional dysregulation, became easily overwhelmed, and was vulnerable to stress to a much higher degree than the average person.[11] The court will permit the presence of an appropriate support person, such as a health worker, friend, or relative, who is appropriately qualified to reduce the emotional stress of the party, so as to assist with a proper, smooth examination.
[1] Abulnar v Varity Corp. (1989), 17 A.C.W.S. (3d) 376 at para 9 (Ont H Ct J) [Abulnar].
[2] Lesniowski v H.B. Group Insurance Management Ltd. (2003), 57 C.P.C. (6th) 374 at paras 17-18 (ONSC) [Lesniowski].
[3] Abulnar, supra note 1.
[4] Sullivan v Judith Irving-Zed Photography Inc. (1994), 48 A.C.W.S. (3d) 703 at para 10 (NBCA) [Sullivan].
[5] Al’s Steak House & Tavern Inc. v Deloitte & Touche, [1998] O.J. No. 6545 at para 4 (Gen Div) [Al’s Steak House].
[6] Tridici v M.E.P.C. Canadian Properties Ltd., [1978] 3 A.C.W.S. 385 at para 4 (Ont H Ct J) [Tridici].
[7] International Chemalloy Corp. v Friedman, [1983] O.J. No. 2108 (SC) [International Chemalloy].
[8] Ormiston v Matrix Financial Corp., 2002 SKQB 257 at para 16 [Ormiston].
[9] Poulton v A&P Properties Ltd., [2005] O.J. No. 649 at para 20 (SC) [Poulton].
[10] Lipovetsky v Sun Life Assurance Company of Canada, 2018 ONSC 1664 [Lipovetsky].
[11] Ibid at paras 7, 10.
