T-970-85
T-2130-85
Champion Truck Bodies Limited (Plaintiff)
v.
The Queen in Right of Canada (Defendant)
INDEXED AS: CHAMPION TRUCK BODIES LTD. v. K
Trial Division, Strayer J.—Ottawa, June 26 and
July 4, 1986.
Practice — Discovery — Examination for discovery —
Motion to exclude defendant's representative from examina
tion for discovery of plaintiffs representative — Motion dis
missed — R. 465(20) giving Court jurisdiction — Party or
representative entitled to attend court proceedings except in
unusual circumstances — Principle applying even more to
examinations for discovery — Important that examining
counsel be well instructed during examination — Type of
evidence possible at examination and purpose of examination
reducing relevancy of concerns about witnesses tailoring evi
dence in light of knowledge of each others' evidence — Special
circumstances, required to exclude representative, not dis
closed — Federal Court Rules, C.R.C., c. 663, R. 465.
CASE JUDICIALLY CONSIDERED
CONSIDERED:
Green v. R., [1980] 2 F.C. 524 (T.D.).
COUNSEL:
Richard P. Bowles for plaintiff.
Judith McCann for defendant.
SOLICITORS:
Hough & Bowles, Ottawa, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
STRAYER J.: The plaintiff in this action and in
another action between the same parties,
T-2130-85, brought an application purportedly
under Rule 465 [Federal Court Rules, C.R.C.,
c. 663] for an order, inter alia, declaring that:
... the Defendant ... is ... not entitled to have present at the
discovery of the Plaintiff's representative the person whom the
Defendant has chosen to produce as its representative to be
examined for discovery.
An accompanying affidavit disclosed that on the
day agreed upon by counsel for the examination of
a representative of the plaintiff, counsel for the
defendant had with her one Bernard Fournier, a
representative of the defendant who was the person
designated to be examined for discovery the next
day by counsel for the plaintiff. Counsel for the
plaintiff objected to Fournier being present during
the examination of the representative of the plain
tiff. The examination did not proceed and counsel
brought these motions, one in each action. I dis
missed both motions, gave brief oral reasons, and
indicated that I would give written reasons having
regard to the novelty of the question.
At the outset I had some doubts as to my
jurisdiction to give such directions. I was finally
satisfied that, while there is no precise authority in
Rule 465 to this effect, the matter could be treated
as one in which the plaintiff's representative had
refused to be examined with Fournier present, it
then being a matter under paragraph 465(20) for
the Court to determine whether there was "reason-
able excuse" for this refusal. I also noted the
decision of Mahoney J. in Green v. R., [1980] 2
F.C. 524 (T.D.) where he made a determination as
to whether an expert witness was entitled to be
present to assist counsel in the examination of a
party in opposition.
In reaching the conclusion which I did, I started
with the proposition that an individual normally is
entitled to attend court proceedings to which he is
a party. Where the party is not a natural person
but a corporation or the Crown, then such party is
entitled to have a representative present. Fournier
is a representative of the defendant in this action.
My reading of the cases suggests that while
there are exceptions to this principle such excep
tions are few and would involve unusual circum
stances. Even in a trial, where a party or the
instructing representative of a party is an intended
witness, where an order is made for the exclusion
of other witnesses prior to their testimony the
Court would not normally exclude such a person.
This is so even though the practice is to make
exclusionary orders whenever so requested. This
obviously reflects the importance attached to the
right of a party to be present and to instruct
counsel throughout the case.
In some respects I believe that it is even more
important that a party's representative be present
during an examination for discovery of the oppos
ing party. It is in the interests of justice that
examinations for discovery should be complete and
this implies that the questioning should be as
relevant as possible. The object is to explore fully
the issues raised by the pleadings, to understand
the position of the party being examined and to
gain admissions from him. This is all in further
ance of the goal of narrowing the issues and
reducing as much as possible matters to be deter
mined at trial. All of this underlines the impor
tance of examining counsel being well instructed
by his client during the course of the examination.
The argument of the plaintiff here is essentially
that the presence of the defendant's representative
during the examination of the plaintiff's repre
sentative is "unfair" because it could enable the
former to "tailor" his "evidence" in the light of the
"evidence" of the latter. No basis for this appre
hension is stated in the supporting affidavit. It is
simply put forward as a general proposition. I find
this inadequate for two reasons. First, I think it
overemphasizes the role of an examinee as a "wit-
ness". An examinee is not necessarily giving "evi-
dence" of his personal knowledge and observations
as does a witness at trial, but rather is there to
state the position of the party he represents. In
doing so he may be giving purely hearsay evidence.
The purpose of the examination is not to obtain
disclosure of the intended evidence of the particu
lar examinee but rather of facts relevant to the
pleadings which are within the knowledge of the
other party. These considerations in my view
reduce considerably the relevancy of concerns
about witnesses to a particular incident being able
to "tailor" their evidence in the light of knowledge
of each other's evidence. Secondly, for reasons
stated earlier as to the importance of a party's
representative being present with his counsel, it is
unacceptable in my view to take the view that such
a person can never be present when the opposite
party is being examined if he is himself to be
examined in future. It would have to be very
special circumstances to justify the exclusion of
such a person and the plaintiff's material discloses
no such circumstances here.
For these reasons the motions were dismissed
with costs in the cause. These reasons apply equal
ly, of course, to the motion brought in action
T-2130-85.
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