Cite as: Hughes Estate v. Tower, 1991 NSSC 7 1990 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION . IN THE MATTER OF: An Action commenced pursuant of Sections 2 (a), 3 and Act, that being Chapter Statutes of Nova Scotia, 1989. BETWEEN: THE ESTATE OF THE LATE Executor and Trustee, RONALD JOSEPH DOWNIE, BRIAN DOWNIE, JENNIFER SULLIVAN, LAURA DOWNIE and LIANE DOWNIE, - and MARY BETH TOWER and MARILYN MacLEOD HEARD: AT HALIFAX, NOVA SCOTIA, MR. JUSTICE DAVID W. JANUARY 15, 1991
DECISION: FEBRUARY 1, 1991 COUNSEL: ROBERT G. BELLIVEAU, GAVIN GILES, COUNSEL S.H. No. 72216 to the provisions 5 of the Fatal Injuries 163 of the Revised MABEL A. HUGHES, by its Ronald J. Downie, Q.C., KEVIN DOWNIE, Plaintiffs . (Respondents) Defendants (Applicants) BEFORE THE HONOURABLE
GRUCHY IN CHAMBERS ON
Q.C., COUNSEL FOR THE APPLICANTS FOR THE RESPONDENTS
1990 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION IN THE MATTER OF: An Action commenced pursuant of Sections 2 (a), 3 and Act, that being Chapter Statutes of Nova Scotia, 1989. BETWEEN: THE ESTATE OF THE LATE Executor and Trustee, RONALD JOSEPH DOWNIE, BRIAN JENNIFER SULLIVAN, LAURA DOWNIE and LIANE DOWNIE, - and MARY BETH TOWER and MARILYN MacLEOD GRUCHY, J. This application is a result of a motor vehicle accident A. Hughes was allegedly struck on Coburg Road in the City of Halifax. on her behalf on March 26, 1990. discloses that Mrs. Hughes subsequently died as S.H. No. 72216 to the provisions 5 of the Fatal Injuries 163 of the Revised MABEL A. HUGHES, by its Ronald J. Downie, Q.C., DOWNIE, KEVIN DOWNIE, Plaintiffs (Respondents) Defendants (Applicants) concerning an action taken as in which the late Mabel and injured while a pedestrian The action was commenced The amended statement of claim a result of the
- accident. The action was continued in their various capacities. the deceased and is the executor Mabel Hughes. The other plaintiffs, Brian Downie, Jennifer Sullivan, Laura Downie grandchildren of the deceased. action was continued pursuant to the provisions of the Revised Statutes of Nova Scotia, 1989, the Fatal Injuries Act. The plaintiffs make various claims, including special damages and general damages under different heads. makes the following claim: "General damages to compensate for the loss of guidance, care and companionship that would have provided had her death not occurred, pursuant to the provisions of Section 5(2){d) of th~ Fatal Injuries Act." By interlocutory notice dated January 10, defendants have applied for grandchi ldren of the deceased of the o r de r sought, it is clear that the defendants exclude each of the grandchildren from their respective discovery examinations. No application plaintiff, Ronald J. Downie. The application is the defendants' solicitor. The essential reason for the request for exclusion is found in that affidavit which reads as follows: 2 by the present plaintiffs Ronald J. Downie is the son of and trustee of the estate of Kevin Downie, and Liane Downie are all After Mrs. Hughes' death the of Chapter 163 Each plaintiff the late Mabel A. Hughes 1991, the an order " ... excluding the Mabel A. Hughes" . By the form wish to has been made to exclude the supported by the affidavit of
- 3 "1. THAT I am the solici tor and have a personal knowledge of the matters herein deposed to except where information and belief. 2. THAT as appears from of Claim on file herein, died as a result of injuries motor vehicle accident which is the subject matter of this proceeding. 3. THAT there are five deceased who are Plaintiffs in the within proceeding who are all claiming pursuant of the Fatal Injuries Act. 4. THAT the parties arranging discovery examinations and the lines of questioning Plaintiff grandchildren identical." In the defendants I submission, is stated more emphatically by indicating that "there is real possibility that the grandchildren the questions and answers being siblings". While s uch facts are of hearing of the application it was disclosed to the Court that all of the grandchildren are of the age of majority. There is no Civil Procedure Rule directly on point. The late Chief Justice Cowan, et a l., 40 N.S.R. (2d) and 73 purview of Civil Pr ocedu r e Rule of a presiding judge to exclude circumstances outlined in that rule. for the Defendants stated to be based upon the Amended Statement the late Mabel A. Hughes she received in a grandchildren of the to the provisions are in the process of of the Plaintiffs of each of the will be virtually the reason for the request a very could be influenced by put to one of his or her not in evidence, at the time in MacMillan et al v , Slaunwhite A.P.R. 25 at p.27, examined the to determine whether the power a witness is restricted to the He concluded:
- 4 "In my opinion, however, the limit the inherent power of of a civil proceeding to give such directions, the exclusion of parties testimony of another witness, necessary for the orderly conduct of the proceeding and for reaching a just conclusion." Chief Justice Cowan was there parties intended to be excluded Details of the proposed subjects plaintiffs were outlined to the Court as "the knowledge of the respective plaintiffs the defendant and of the defendant's a motor vehicle, the knowledge of the plaintiffs as to the source or ownership of the motor vehicle, the manner in which the motor vehicle was operated at all times, to the respective plaintiffs to exit from the vehicle and whether some or all of the plaintiffs might have encouraged ·the defendant to act in certain ways in the operation of the vehicle". Chief Justice Cowan Simmons v , Olson (1951), 1 W.W.R. be f o r e me have likewise referred to that case. therein by O'Halloran, J.A., in deciding any case of this nature, it 1S necessary to start with the principle that "every person has an inherent right to be present at proceedings to which he is a however, must not conf lict wi th conduct of the action or proceedings." ,., ultimate decision of the Court before it. O'Halloran, J.A. said that: " Appellants had as much r igh t examina tion as they had to rule in question does not a judge presiding at a trial including during the hearing of any as the judge considers dealing with a case where the were seven infant plaintiffs. of examination of the infant and included such matters of the age of legal status to operate the opportunities available was referred to Sissons and (N.S.) 507 (B.C.C.A.). Counsel As was stated a trial or any other party" and that "Such a right, the fair and proper judicial As wi th all cases, the depends upon the facts adduced to attend each other's remain in court and listen
- to each other's testimony at the trial itself. of this conclusion does not court at the trial, or in the presiding judicial official at any stage of the proceedings exclusion of a party should of justice occur or be threatened if exclusion is directed. What may constitute such on the situation in each atmosphere. See Bird v. Vieth (1899), Sidney Smith, J.A., dealt with the question of onus as follows: " The cases are well reviewed 2 W.W.R. 802 (Man.) and I do not think they establish that right to be present at all times. holds, I think, that either at a party cannot be excluded while his co-party testifies, wi thout cause shown. But showing cause thus put on the opposite party is one; and I think the onus is lighter at a trial, since the possibility exclusion is more remote. chance of injustice being done in this small. But in many cases the opposi te party from refusal to substantial. I think the benefit of any real doubt should be given to the party asking the pleadings or otherwise examinations of the coparties will cover the same ground, and that their credibility will seems to me their exclusion should be ordered. I .therefore, with respect, the disposi tion of the case unless the learned judge exaggera ting and that there was tha t cross-examination would both deponents being present. this appeal is that the registrar have gone into such questions at all, but to have ordered exclusion merely because it was permitted by the authorities. discretion, and here he does not seem to have done so." 5 Acceptance deny jurisdiction in the to order the physical a violation of an essential not a violation depends case appraised in its own 7 B.C.R. 31." 1n the same case at pp.5ll-2 in Pam v. Gale, [ 1950] I need not go through them. a party has a legal The weight of authority a trial or on discovery I do not think the onus of a heavy on discovery than of injustice from Even at a trial, I think the way is extremely the chances of. injustice to exc lude may be very for e~clusion. If from it appears that. the be a factor, then it venture to disapprove of made in Pam v , Gale, supra, considered that counsel was no real reason to think be made less e f f ective by The only reason I allow does not appear to asked for. This is not He must exercise a
- The same subject was al v. Murphy et al (1964), 50 In that case Munroe, J. , approved the decision of the registrar of that court wherein exclusion terms: .. In ordering exclusion in that the examinations of the same ground and concluded that if exclusion was ordered there was a possibility plaintiff while, on the other prejudice to a truthful defendant if ordered. Accordingly, notwithstanding rights of the defendants, 'in its own atmosphere' and a violation of an essential exclusion was not directed. with the said finding." The enumeration of the respective rights of. parties in considering possible exclusion from discoveries was set forth by Benson et al v : Westcoast Transmission D.L.R. (3d) 292 (B.C.S.C.) 292, as follows: .. The major principles were v , Olson. The ones that favour the plaintiffs proceedings can be described as follows: 1. Every person has an inherent right to be present
at the trial or any other he is a party (O'Halloran, J.A., p.509).
2. Every party has as much right to attend his co
party's discovery examination as he has to remain
in court and listen to trial itself (O'Halloran, J.A., p.5l0).
3. For a party to be excluded discovery, cause must asking for the exclusion p.511).
6 adjudicated upon in O'Neal et W.W.R. (N.S. ) 252 (B.C.S.C.) • was ordered in the following this case he had in mind the defendants were to cover not of prejudice to the hand, there could be no an exclusion was the prima facie he appraised this situation concluded, in effect, that of justice may occur if I am in respectful agreement Co. Ltd. (1974), 49 set out in Sissons et al a n these proceedings to which
this testimony at the
from his co-party' s
be shown by the person
(Sidney Smith, J.A.,
- 4. Exclusion of a party does of right but is rather exercise in the circumstances J.A., p.512). The principles that favour the applicant in this action taken from Sissons et ale v. Olson, appear to be as follows: 1. The inherent right of one party to attend party's discovery must fair and proper judicial or proceedings (O'Halloran, J.A., p.509). 2. If there is a violation or a threat of a violation of an essential of justice during the proceedings, a party may be excluded (O'Halloran, J.A., p.510). 3. The onus of showing that excluded is a heavy discovery than at trial p.511l. 4. The benefit of any real party should be excluded should be given to the party asking for the J.A., p.51l). 5. If the pleadings show co-parties will cover the same ground, credibility will be a should be ordered (Sidney Smith, J.A., p.5l1)." The degree of commonality be considered in a determination of this nature. of the Saskatchewan Court in 55 D.L.R. (3d) 755: " I feel that where co-parties have interests in common it is important in the interests be excluded when fellow parties examina tion. If it were otherwise they would 7 not corne as a matter one for the Court to (Sidney Smith, (defendant) a co not conflict with the conduct of the action a co-party should be one but is lighter on (Sidney Smith, J.A., doubt as to whether a exclusion (Sidney Smith, the examination of the and their factor, their· exclusion of interests is also to Bence, C.J.Q.B. Basu v , Bettschen et al (1975 l, of justice that they are testifying on an be in the
- advantageous position of knowing at the time that they are examined. It appears in the instant have a very important common valuable to them of course if in answers they had the advantage defendant has stated." I also refer to two recent decisions of Division of this Court: Coughlan and Garnett v. Westminer Canada Holdings Limited et aI, S.C.A. No. Limited v. The Armour Group Limited, Westminer case the oral decision considered. He had said, in part, as follows: " The burden is on the Applicant to show that sufficient
cause that in any event, if it were as parties, that some exclusionary granted. The basis of such an exclusionary order would have to be, basically, that it was justice, that such an exclusionary order would be granted. I I m not s a t Ls f i ed in this met that burden, even accepting it as than in a normal situation, to deny the application with I don't think there's been sufficient to indicate that there would be a violation' of if these 'parties were not evidence of each other. There's type of situation that the Defendant would in the preparation of his defence various wi tnesses that he might instructing them as to what evidence they may be required to give." (Emphasis added) Mr. Justice MacDonald, in reviewing concluded that "It is clear that were considered, the Chambers judge was satisfied that the burden had not been met by the applicant". 8 what another has said case that the defendants issue and it would be assessing their own of knowing what another the Appeal 02281 and Transcanada Pipelines S.C.A. No. 02351. In the of Mr. Justice Nunn was treated the same
order should be
( in the interests of case that the Applicant has a lighter burden and as a result, I'm going regard to those persons. an essential of justice excluded from hearing the a real .danger in this be prejudiced and in lining up the have in giving them and Mr. Justice Nunn's decision, wh eri considerations of justice
- To use the words of Mr. Justice Nunn, whether there is sufficient evidence before that there would be a violation of these parties were not excluded each other". The only evidence defendants' counsel. In the case at hand there is apparently about liability; it has been matter is essentially an assessment particularly those damages grandchildren of the deceased Act. The pertinent subsections of the Act read as follows: " 5 (I) Every action brought be for the benefit of the wife, of such deceased person and the jury may give such damages as they think proportioned to the injury resulting such death to the persons respectively for whose benefit such action was brought, and after deducting the costs the defendant, shall be divided such shares as' the jury by their verdict find and direct. Damages Defined (2) In subsection (1), and non-pecuniary damages and, generality of this definition, includes (d) an amount to compensate loss of guidance, companionship that whose benefit the action is brought might reasonably to receive from the death had not occurred." 9 I must consider me " ... to indicate an essential of justice if from hearing the evidence of before me is the affidavit of no question admitted by the defendants. The of damages, including suffered and claimed by the pursuant to the Fatal Injuries under this Act shall husband, parent or child from the amount so recovered, not recovered, if any, from among such persons in I damages I means pecuniary without restricting the for the care and a person for have expected the deceased if
- Accordingly, each of the grandchildren plaintiffs will be showing in this action the degree of a result of the loss of guidance, would have been af forded them is the subject matter in issue. of the plaintiffs. While the same general subject matter will be covered in each examination, the same of the grandchildren will have relationship with the deceased. subjective one. It is that relationship which must upon examination. The evidence will be vastly different from powers of observation of the witnesses will The evidence will be subjective to a great degree. Skilled counsel will" be each of the siblings to elicit the information required without having to go over the same ground with each of them. Nor is this a si tua tion where the witnesses .i nt i.mi d at.e d by the presence of asked for the "exclusion of According to the respondents' objected to, the children are people. The subtle influence circumstances, and indeed, the subtle influence of brothers and sisters, do not appear to me to be of major consideration. I find that the evidence the affidavit set forth above, "there would be a violation of an essential of justice if these 10 damage individually suffered as care and companionship which by their grandmother. That loss Each loss is peculiar to each ground need not be covered. Each had his or her own special Each relationship is an entirely be explored concerning those relationships cases where such matters as the be under scrutiny. able to frame questions to may be a parent. The applicant has not Mr. Ronald Downie, the father. submission, which has not been professional and well educated of parent to child, in these before me, consisting of falls short of showing me that
- parties were not excluded from other". The inherent rights discovery should not be displaced "the lines of nllP<::;t-inninrr nF O::::lf""'h As the learned registrar Murphy et al (supra), each case must atmosphere". There has not been sufficient atmosphere set forth before me to overcome the presumption a right to be present at each before me to suggest that the attendance of the parties at the discovery will create a situation in conf lict with the fair and proper conduct of the case. If there is any abuse procedure, evidence of that may of trial and an appropriate adjudication made. As a result of the above, in favour of the plaintiffs and allow all of them to be present during the discovery examinations of one another. application shall be the plaintiffs I fix them at $500.00. Halifax, Nova Scotia February 1, 1991 11 hearing the evidence of each of the parties to attend the by the mere assertion that "f' +-h", ~,~~_ .... s c « r» ..:I_L.~'-" _ said in O'Neal et al v. be appraised "in its own that each plainti ff has examination. There is nothing by the plaintiffs of this be brought forward at the time I exercise my discretion Costs of this costs in any event and I Gruchy, J.
- parties were not excluded from other". The inherent rights discovery should not be displaced "the lines of questioning of each of the plaintiff Grandchildren will be virtually identical". that it would be of value to being able to assess what one another has said. As the learned registrar Murphy et al (supra), each case must atmosphere". There has not been sufficient atmosphere set forth before me to overcome the presumption a right to be present at each before me to suggest that the attendance of the parties at the discovery will create a situation in conflict with the fair and proper conduct of the case. If there is any abuse procedure, evidence of that may of trial and an appropriate adjudication made. As a result of the above, in favour of the plaintiffs and allow all of during the discovery examinations of one another. application shall be the plaintiffs' fix them at $500.00. Halifax, Nova Scotia february 1, 1991 11 hearing the evidence of each of the parties to attend the by the mere assertion that There is no evidence before me the grandchildren plaintiffs in said in O'Neal et al v. be appraised "in its own that each plaintiff has examination. There is nothing by the plaintiffs of this be brought forward at the time I exercise my discretion them to be present Costs of this costs in any event and I Gruchy, J.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.