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.
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