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Can A Non-Party Attend At Discoveries?

Most people are not used to being involved in litigation. For all but the most experienced litigants, participating in the litigation process is stressful and often downright scary. One of the most anxiety causing steps is the discovery process. Representing frightened clients at discovery can be difficult.

Examination for discovery is a key step in litigation. The plaintiff initiates legal proceedings by issuing a statement of claim that sets out the facts relied upon and the nature of the claims being advanced. The defendant’s statement of defence sets out his/her response. Then each side has a responsibility to disclose all relevant documents. Thereafter, each side has an opportunity to ask questions of the other under oath. This is called discovery and under the best of circumstances it can be stressful, even for clients who have been through the process before.

Oral examinations for discovery serve a number of purposes. From a legal perspective it can narrow down and define the issues. The questions asked by lawyers probe and verify allowing them to obtain full factual disclosure, pin down the testimony of parties, obtain admissions and assess the strengths and flaws in the other side’s case1. It’s a key crystallization moment because at this juncture each side has had its measure of the other allowing the professionals in the room to assess their prospects of success at trial. That is one reason why there is a lot of pressure on the parties who are being examined for discovery.

Generally, discoveries are the first step in the litigation process that requires the actual litigants to participate and interact with the opposing lawyer. This can be a daunting experience. Litigants know that opposing counsel has prepared extensively for examinations and will be trying to undermine their credibility and twist their words wherever possible. This concern is even more cogent where the litigant is unfamiliar with the language or the intricacies of complex cases. This is a stressful moment in litigation, but it is exponentially more stressful for certain clients. Imagine if you are the lawyer for the person who has been browbeaten by her spouse. Or, if your client is the vulnerable elderly person whose adult child has turned into an intimidating financial predator. The last thing your client wants is to answer questions with pressure of facing their adversary in the same room.

A common cause for concern for many litigants is that the other party2 has a right to attend the examination with his/her lawyer. So how do lawyers protect their clients in these situations? Sometimes, your client will ask if they can attend the examination with a friend or family member for moral support and comfort. Is that allowed?

The case law provides that in certain circumstances a non-party will be permitted to accompany the person being asked questions on examinations for discovery.3 In deciding whether to exercise its discretion to grant a non-party leave to attend the parties’ examinations, the Court is guided by the following principles:4

  1. The Court may exercise his or her discretion by granting leave for a non-party to assist at an examination in any of the following circumstances, which are not intended to constitute an exclusive list or to limit the discretion of aforementioned persons:
      1. where the level of expert knowledge, technical, scientific or otherwise, relevant to the issues in an action is beyond counsel and therefore legal counsel may be unable to conduct a proper examination without the assistance of an expert, specialist or technician. For example, the calculation of damages in a personal injury action is a matter that counsel should be able to address and therefore the presence of an accountant normally would not be permitted at an examination. The qualification of the expert assistant need not meet the thresholds applicable to experts testifying at trial;
      2. a non-party who is not a professional expert concerning a particular complex issue before the court but who has the knowledge or abilities that will make the discovery process run smoothly and expeditiously, usually will be allowed to attend an examination for discovery in the capacity of an expert assistant. The ability to manage documents in an action involving a substantial number of documents, or familiarity with financial records, may be sufficient to warrant such person being given leave to assist at an examination;
      3. Where a party requires the assistance of a non-party in special circumstances; for example, an aged mother might be accompanied by her son or daughter.
  2. The burden of establishing that a specific non-party should be allowed to attend at an examination for discovery rests with the party seeking the non-party’s assistance. In most circumstances and affidavit setting out the applicant’s needs, counsel’s concerns and how the non-party can assist will be essential.

Underlying these guiding principles is the concept of proportionality5, which is meant to ensure that that a party invokes and applies the rules in a sensible and reasonable manner.6

The circumstances described by the case law are situations in which the non-party’s attendance is likely to make the examinations, “more efficient, more useful, and more thorough by contemporaneously drawing on the knowledge of someone familiar with the intricacies of a matter”.7

The above guiding principles and the case law seems to recognize that in some cases the actual litigant is not the person most familiar with the matters at issue and permitting a non-party to attend can be a sensible way to reduce expenses, the overall cost of litigation,8 and ensure that the party has the best possible discovery.9 For example, the Court has permitted the attendance of;

  1. the party’s spouse;10
  2. an insurance investigator11; and
  3. the party’s accountants (non-expert)12;

The Court has also permitted a non-party to attend where the non-party’s attendance will ensure that a party is able to participate effectively in the discovery process. As Justice Bloom explained in Rikhye v. Rikhye, the Court will not “hesitate to approve the attendance of a health worker, friend, or relative who was appropriately qualified to reduce the anxiety of the plaintiff by his or her presence so as to assist with a proper examination”. 13 For a more comprehensive review of the Rikhye decision, the author refers you to Kimberly Whaley’s case comment.

In an unreported decision14, on August 8, 2018, Justice Dunphy similarly allowed the applicant’s grandson, a non-party, to attend at the applicant’s examination where the applicant was an elderly woman, who did not speak English as her native language. Justice Dunphy determined that it was appropriate that the applicant’s grandson be permitted to attend to help reduce the applicant’s stress levels and assist her counsel in being aware of any issues regarding comprehension that may arise.

The Court’s goal is ensuring proportionality and the efficacy of the discovery process. So while the general rule is that only the parties and their lawyers will be permitted to attend, the Court appears ready to permit non-parties to attend in a broad set of circumstances.

Footnotes
  1.   CED Discovery IV.4.(a) (Western)Discovery (Western)IV — Examination for Discovery or Questioning4 — Purpose and Scope of Examination(a) — General Principles
     
  2.   A party refers to the people who are named as parties in the litigation – this includes the plaintiff or the defendant. In the case of an application the Applicant or Respondent.
     
  3.   A non-party is permitted to attend if the parties consent. For the purpose of this blog, it is presumed that the at least one party is objecting to the attendance of the non-party.
     
  4.   S & M Brands Inc. c. Paul, 2003 CarswellNat 4486 (Fed. Ct.) at para. 12 (referred to as S & M); Ormiston v. Matrix Financial Corp., 2002 CarswellSask 407 (SKQB) at para. 16)
     
  5.   Rule 1.04(1.1) of the Rules of Civil Procedure provides that, “in applying these rules, the Court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved in the proceedings”
     
  6.   Szeto v. Dwyer, 2010 CarswellNfld 163 (NLCA) at para. 54
     
  7.   Nash v. Sanjel Cementers Ltd., 1999 CarswellNat 2073 (Fed. Ct.) at para. 21
     
  8.   DeGrandis v. 1123951 Ontario Ltd., 2016 CarswellOnt 10500 (Ont. Master)
     
  9.   International Chemalloy Corp v. Friedman
     
  10.   DeGrandis v. 1123951 Ontario Ltd., 2016 CarswellOnt 10500 (Ont. Master); Sun Life Trust Co. v. Hellerman, 2001 CarswellOnt 1419 (Ont. S.C.J.)
     
  11.   Smith v. Walnut Dairy Ltd., 1945 CarswelLOnt 326 (Ont. S.C.)
     
  12.   International Chemalloy Corp v. Friedman, 1983 CarswelllOnt 402 (Ont. Master)
     
  13.   Rikhye v. Rikhye, 2017 CarswellOnt 12052 (Ont. S.C.J.). Justice Bloom ultimately refused to allow the plaintiff’s daughter to attend on other grounds. In that case, there was evidence suggesting that the plaintiff’s daughter was manipulating the plaintiff to pursue the defendant and therefore, Justice Bloom was concerned that the plaintiff may feel pressure to tailor her evidence if her daughter was in attendance.
     
  14.   Miller v. Allentoff et al Court File No. 05-212/17
     

Gregory Sidlofsky and David Wagner

The authors of this blog are Gregory Sidlofsky and David Wagner .

Gregory is a Certified Specialist in Litigation by The Law Society of Ontario and partner at Wagner Sidlofsky LLP. David is a member of the firm’s Estate and Commercial Litigation Groups. He received his TEP designation from STEP and he deals with will challenges, dependants support, guardianship and applications to compel an accounting.

This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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