What are the applicable principles on a motion for exclusion order on the basis of alleged intimidation?

Ontario, Canada


The following excerpt is from D’Onofrio v. Kaszas, 2019 ONSC 11 (CanLII):

I accept and adopt the plaintiff’s submission that the applicable principles on a motion for an exclusion order on the basis of alleged intimidation were summarized by D.M.Brown J. (as he then was) in York University v. Markicevic, 2012 ONSC 5325, at para. 8, as follows: (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. [my emphasis added.]

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