IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Rowe v. Lee ,
2006 NSSC 377
Date: 20061101
Docket: SH 134632
Registry: Halifax
Between:
Patricia Rowe
Plaintiff
v.
Michelle Lee (MacKay) and John Jeff MacKay
Defendants
Judge: The Honourable Justice Arthur W.D. Pickup
Heard: November 1, 2006, in Halifax, Nova Scotia
Decision on Exclusion of defendants at Discovery
Counsel: David W. Richey, for the plaintiff
Christa M. Hellstrom and Tyana R. Caplan, for the defendants
By the Court: [Orally]
[1] This is an action by Ms. Rowe against Michelle Lee and John Jeff MacKay which arose out of a motor vehicle accident which occurred at approximately 8:00 a.m. on January 10, 1995 on highway 102. Ms. Rowe claims that she has sustained significant personal injury damages as a result of this accident.
[2] Patricia Rowe brings this application for an order requiring the co-defendants, Michelle Lee and John Jeff MacKay be excluded from each others discovery examination with respect to the issue of liability.
[3] Discovery of Ms. Lee and Mr. MacKay was commenced on September 8, 2005. Counsel for the plaintiff, at the start of the discovery, advised that he wished to discover Ms. Lee and Mr. MacKay separately and asked that Ms. Lee be excluded from Mr. MacKay’s discovery. The request was denied and counsel for the plaintiff, discovered both Ms. Lee and Mr. MacKay in the others’ presence, but did not question either of them about the circumstances of the accident and reserved the right to do so at a later date.
[4] This application was brought to determine the issue and, in particular, seeks an order from this court that Ms. Lee and Mr. MacKay be examined separately for discovery as an exception to the general rule that a named party is entitled to be present at all proceedings in the action which concerns them.
The Law
[5] The Nova Scotia Civil Procedure Rules are silent as to the circumstances in which a party may properly be excluded from a discovery.
[6] There does not appear to be any real dispute that a party to a proceeding has a prima facie right to attend all pre-trial and trial proceedings. Likewise, it is not in dispute that the onus is on the party seeking to exclude an opposing party to demonstrate that the proceedings cannot be conducted fairly without such exclusion or that it is in the interest of justice that such an exclusion be ordered.
[7] Has the plaintiff satisfied this court that it is in the interest of justice that Ms. Lee and Mr. MacKay be examined separately for discovery?
[8] I am not satisfied that the plaintiff has met its burden.
[9] In Croft v. Burrell, 1996 CarswellNS 268 (N.S.S.C.). Justice Goodfellow reviewed the law relating to the exclusion of witnesses from discovery examinations. At paras. 27 - 29 Justice Goodfellow commented as follows:
There is an inherent prima facie entitlement of a party to attend all proceedings including the discovery of another party.
If there is a violation or a threat of an essential of justice during the proceedings, a party may be excluded.
There is nothing before me that warrants extinguishing the co-defendant’s entitlement to be in attendance at their respective discoveries even if the pleadings showed their examination will cover much of the same ground and that credibility is a factor. Such will not normally be sufficient to overcome the onus on a person seeking exclusion...
[10] I have also reviewed the ten principles set out by Justice Goodfellow at para. 32 of his decision which I will not repeat for the sake of brevity.
[11] In Crystal Weeks v. Richard Burton Miller, Ronald A. Wells, Lucille Wells and Dawn Wells (May 17, 2004, Truro, Docket: 09455/183429) (Tab 8), Justice Scanlan of the Supreme Court dismissed a plaintiff’s application for an order to exclude the party defendants from discovery examinations of the other party defendants commenting:
... The Court should be very, very reluctant to deny a party the inherent right to attend at trial at all stages of the trial process. The process includes discoveries as much as it does any other part of the trial. The Court should be loathe to exclude a party from a part of the trial unless the plaintiff establishes on the balance of probabilities that the party should be excluded. To do so they must be able to demonstrate that the exercise of the right of the party to attend conflicts with the fair and proper judicial conduct of the proceedings to the extent of impairment.
[12] As I have indicated, the law is clear that the burden of proving that such an order, as this is necessary, lies fully with the plaintiff. I am not satisfied that there is sufficient facts that would displace the important right to due process that defendants have in these circumstances. I am satisfied that such entitlement to due process has only been interfered with in exceptional and rare cases. The main argument raised by the plaintiff is that there are issues of credibility and, therefore, the party should be excluded.
[13] As stated by Justice Goodfellow at para. 29 in Croft v. Burrell, supra “such will not normally be sufficient to overcome the onus on the person seeking the exclusion”. The plaintiff has suggested that the co-defendants will tailor their evidence unless they are excluded from each others discoveries. Apparently the co-defendants are spouses who have lived together since the time of the accident in 1995. It does not seem practical to try to limit the communication between the parties some eleven years after the event. More importantly, I am not aware nor has the plaintiff provided any legal support for a ruling from this court preventing spouses from discussing this matter.
[14] In summary, the facts of this case as presented and the issues that the plaintiff wishes to explore on discovery do not provide to me any justification for excluding Ms. Lee and Mr. MacKay from the discovery examination of the other.
[15] The application of the plaintiff is dismissed. Costs to the defendants in the amount of $2,000.00 payable in the cause.
Pickup, J.