The Ontario Divisional Court recently provided guidance with respect to excluding co-parties from each other's examination for discovery. In Lazar v TD General Insurance Company, the defendant sought to examine the plaintiffs (a married couple) individually, outside the presence of the other. The motion was initially dismissed, but the Divisional Court reversed the motion judge's decision, in part on the basis that the decision to exclude a party from discovery does not carry the same implications as excluding a party from the courtroom at trial. While a party has the right to be present for all aspects of an action, the court retains discretion to exclude a party from the examination for discovery of a co-party, if the exclusion is necessary to meet the ends of justice. The factors to be considered include whether the co-parties have common interests or the same lawyer, whether the examinations will cover the same grounds, whether credibility will be a factor or an issue, whether there is a risk of evidence being tailored or parroted, and whether there would be prejudice to the excluded party. Given that the outcome of the case would turn almost exclusively on the plaintiffs' credibility and reliability (as there were almost no documents), the court considered it necessary for defence counsel to be able to test each plaintiff's independent recollection of the facts, untainted by the prior knowledge of the other's examination. While exclusion motions are relatively rare, the decision in Lazar is a good example of the circumstances in which such a motion may be necessary to fulfil the purposes of examinations for discovery. This issue is potentially significant to financial institutions, as it will often arise where spouses are co-mortgagors or guarantors of a loan.
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