What are the legal principles applicable to the exclusion of a party to an out of court examination?

Ontario, Canada


The following excerpt is from G.S. v. K.C., 2020 ONSC 210 (CanLII):

The parties agree that the legal principles applicable to the exclusion of a party to an out-of-court examination are summarized by Brown J. (as he then was) in York University v. Markicevic, 2012 ONSC 5325, at para. 8: (i) There is an inherent right for parties to an action to be present during the cross-examination or examination for discovery of other parties to, or witnesses in, an action; (ii) The court has the discretion to exclude parties from attending such cross-examinations or examinations for discovery; (iii) However, the court does not establish classes of cases which eliminate a party’s inherent right to be present at an examination – “blanket exclusions” do not form part of our procedural law; (iv) The person seeking to exclude a party from an examination bears the onus, on a balance of probabilities, of showing cause to justify such an exclusion; (v) Cause depends on the circumstances of the case. Courts have defined cause as a realistic and substantial cause, circumstances that would cause prejudice to the party to be examined, or circumstances that make exclusion necessary to secure the ends of justice; and, (vi) Demonstrated intimidation by one party towards the other is a justifiable reason to exclude, however a court should guard against assuming intimidation from a set of circumstances. Intimidation must be proven.

Other Questions


How have the courts dealt with an application where the applicant's disrespectful behaviour was so extreme that the application was dismissed as abuse of process? (Ontario, Canada)
Is there any case law relating to an accident benefit application where a delay in submitting the Application due to a personal relationship preventing the Applicant from making an application? (Ontario, Canada)
If the parties cannot agree on the issue of costs in a personal injury action, can the parties make written submissions to the Respondent to the Application to the Court of Appeal? (Ontario, Canada)
How have the courts interpreted the principles of the Court of Arbitration for the purpose of making decisions at an arbitrator rather than the court? (Ontario, Canada)
Is it an abuse of the court’s process for a party to bring multiple legal proceedings against the same party in the same matter? (Ontario, Canada)
What are the legal principles applicable to an originating application? (Ontario, Canada)
What is the impact of adding a party to the list of parties in a child protection application? (Ontario, Canada)
Can a court award costs to a party who was more successful on an overall global basis than the other party on a global basis? (Ontario, Canada)
Is it possible for one party to set aside a domestic contract where the other party received independent legal advice? (Ontario, Canada)
Is a crown attorney acting for the applicant in a litigation between parties not providing a service to the opposing party? (Ontario, Canada)
X



Whitelogo nobg 300dpi sm


"The most advanced legal research software ever built."


Trusted by top litigators from across North America.