Exclusion From Discoveries

Parties to a lawsuit usually have the right to be present at the discoveries of all other parties. However, the court has discretion to order otherwise.

In Findlay v. Yagminas, 2019 ONSC 6743, the court outlined the factors to consider in determining whether co-parties should be excluded from each other’s discoveries. Based on a Divisional Court decision, the factors include:

• whether the co-parties have common interests;
• whether the co-parties are represented by the same lawyer;
• whether it appears that the discoveries will cover the same ground;
• whether credibility will be a factor or an issue in the case;
• whether 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
• whether the ends of justice require the exclusion.

Master Kaufman indicated it is not always necessary to prove that a party would likely tailor or parrot evidence. A party may meet the onus by showing that there is a risk that evidence will be tailored or parroted.

In the case in issue, the plaintiff wanted the two defendants, who were father and son, to be excluded from each other’s discoveries.

Master Kaufman held there is a risk that the evidence would be tailored because the defendants have common interests; the discoveries will cover the same ground; credibility is an issue; and the defendants would be placed in a difficult position if they had to disagree or contradict one another, given that they are father and son.

As a result, Master Kaufman ordered the father to be examined first without his son present. The son will be examined second, and the father may be present.