A party has a right to be present at all parts of the litigation process, including at examinations for discovery. However, the court has discretion to exclude co-parties from attending at each other’s examination for discovery where there is a risk of evidence tailoring. In the recent case of Boodhoo v Persaud, Justice Myers excluded all of the parties from each other’s examinations for discovery.
The deceased passed away in December 2006. The deceased was survived by her two daughters, Diane and Jaiwaitte Boodhoo. In her will, she appointed Thakur Persaud, her brother (and one of the defendants), as her estate trustee. Thakur’s wife, also a defendant, assisted Thakur with the estate’s administration. Thakur and his wife were not beneficiaries under the will.
In 2012, Diane suspected her uncle, Thakur, of mismanaging her mother’s estate. Thakur was removed as estate trustee, and Diane took his place. Three years later, a dispute arose between the parties regarding the proposed sale of a property by the defendants’ daughter, Tisha Persaud (a paralegal employed at the defendants’ counsel’s office). Diane claimed that the defendants improperly invested estate funds in the property, and that Thakur and his wife moved title to the property to Tisha. Diane also claimed that Thakur and his wife improperly put an insurance policy owned by the estate into Thakur’s name. The matter was further complicated by the defendants’ claim that Diane forged her mother’s will (although Justice Myers did not delve into the merits of this claim, he did note that Thakur propounded the validity of the will and acted as estate trustee under the will for years).
The litigation dragged on as the defendants failed to comply with outstanding orders (including an order for Thakur to pass his estate accounts) and the documentary and oral discovery process under the Rules of Civil Procedure.
Diane moved for, among other things, an order excluding all of the parties from each other’s examinations for discovery. Justice Myers granted the plaintiff’s request. The credibility of all of the parties was at issue, and Justice Myers noted that all of the parties had reason “to be worried that the others will tailor their evidence based upon what they hear at examinations for discovery”.
In coming to his conclusion, Justice Myers applied the test as set out in the recent decision of the Divisional Court, Lazar v TD General Insurance Company. In Lazar, the Divisional Court held that the onus to prove that an exclusion of a co-party is warranted is on the party requesting the exclusion, but the onus is not a heavy one. The Divisional Court clarified that, “depending on the existing factors, a risk that evidence will be tailored may be sufficient to discharge the onus”. In determining whether a co-party should be excluded, the below non-exhaustive factors may be considered:
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 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.
In applying the factors as set out by the Divisional Court, Justice Myers noted that the defendants had common interests; the same lawyer; their daughter was implicated in their alleged wrongdoing; and that the examinations of all the parties would cover the same grounds. Tisha was also excluded from attending at her parents’ examinations for discovery. Furthermore, no evidence given by a party on examination could be shared with another party (or with Tisha) before completion of all respective examinations.
Even though it is relatively rare to exclude co-parties from each other’s examinations, the decisions in both Lazar and Boodhoo are good examples of the circumstances in which such a motion may be necessary to fulfill the purposes of examinations for discovery.