Canada: Who Can Be Present At An Examination For Discovery?

Answering the question of who should be allowed to attend at an examination for discovery involves an exercise in balancing two competing interests: the interest of upholding the privacy of examinations as a pre-trial discovery process relevant to the parties' dispute amongst themselves versus permitting ways to make the discovery process move along more efficiently and more comfortably for each of the parties.

The Rules do not provide guidance on this aspect of procedure for oral examinations, so we must look to how the courts have interpreted this issue. The starting point is the general legal principle that an examination for discovery is not a public hearing; it is a private matter between the parties themselves and as such, is not open to anyone to be able to freely attend and observe at will. It is settled law that it is only the parties to the action, and their counsel of record, or in the case of a corporation, its agent, who have an inherent right to be present at an examination for discovery of any other party in the action.1 The party's right to attend, though not absolute, will only be limited for "cause", where exceptional circumstances arise such as where intimidation to another party is proven to be likely or where evidence is likely to be tailored or parroted.2

Non-Parties' Right of Attendance

The other side of the same coin of the courts' staunch protection of a party's right to be present at an examination, absent truly exceptional circumstances, is that the scope of persons who do hold this guarded right is small. Any other person beyond the two accepted categories of the parties themselves and their counsel of record, whose presence at the discovery is desired, for whatever reason, will be permitted only as a circumscribed exception. Applying this, the courts have stated that there is only one of two ways in which a non-party to the action may be permitted to attend at an examination for discovery: either with consent of the opposing party or with leave of the court.3

As for when the court is likely to grant leave, it is seen in the caselaw that this is highly fact-specific; the underlying principle is that the party seeking to bring in the non-party must prove that person's presence is "necessary". The question is "whether the non-party's presence is necessary for the proper representation of the examining party?"4

The instances in which the courts have granted leave for a non-party to attend at an examination for discovery include where the party requesting has special needs requiring a support person, or the non-party has expert knowledge of the technical subject-matter, or familiarity with the financial records or documentation in a case with voluminous productions.


The courts have permitted experts to attend at a discovery for the purpose of assisting counsel, in certain circumstances, subject to the caveat that an expert who attends at a discovery cannot then be a witness at trial.5 The rationale behind inclusion of this category of persons is that the level of expert knowledge of this person, usually technical or scientific of some sort, is "necessary" in terms of allowing counsel to conduct a proper and effective examination, given the complex subject-matter of the action.

The scope of who is included within this category of "expert" for this purpose has been slowly widened by judicial interpretation. In the case of Tridici v M.E.P.C. Can Properties Ltd., Madam Justice VanCamp stated that "it will only be in unusual circumstances of technical difficulty that such an expert will be present".6 In that case, the expert who was allowed to attend was an electrical engineer, whose presence was deemed necessary in order that a satisfactory examination be held, given that the direct issue at play was negligence arising out of the defective design and improper installation of an electrical system.

Thereafter, the scope of experts allowed to be present began to be expanded in International Chemalloy Corp. v Friedman, where the court allowed a chartered accountant who had analyzed the voluminous productions in the action, to attend, as it was shown that his presence would make for a shorter and more effective examination for discovery in this convoluted case.7 These persons have been characterized as "expert assistants", and are persons whose ability to manage voluminous documents or whose unique familiarity with complex financial records, for example, makes them candidates to be given leave to assist counsel at an examination.8

The Ontario Superior Court drew the line at who can qualify for attendance in Poulton v A&P Properties Ltd., where the plaintiff real estate developer was seeking to bring a real estate agent who acted on its behalf to attend the examination and the court rejected this. The court said that "the issues are not unduly technical or complex that require his commercial real estate expertise...there is no reason why plaintiff's counsel cannot fully inform himself of all the facts from [the real estate agent] prior to the commencement of the examination".9 Thus, it is clear that absent technical subject-matter, or an extraordinarily voluminous amount of convoluted productions of which the non-party has special knowledge, a normal case will not warrant the presence of an  "expert" or "expert assistant" to be necessary.

Support Persons

The other main category of persons who, increasingly as of late, have been granted leave to attend at examinations for discovery are emotional or moral "support persons" whose presence is shown to be necessary to encourage a party to be able to get through the, often stressful, discovery process.

In Lipovetsy v SunLife Assurance, the insured was given leave to bring a "companion" to each examination as her support person or "emotional anchor" to reduce her state of stress and anxiety.10 In allowing this, the court said there must be evidence that the insured's mental condition is such that the support person's presence is warranted; here, there was evidence that the plaintiff suffered from emotional dysregulation, became easily overwhelmed, and was vulnerable to stress to a much higher degree than the average person.11 The court will permit the presence of an appropriate support person, such as a  health worker, friend, or relative, who is appropriately qualified to reduce the emotional stress of the party, so as to assist with a proper, smooth examination.


1 Abulnar v Varity Corp. (1989), 17 A.C.W.S. (3d) 376 at para 9 (Ont H Ct J) [Abulnar].

2 Lesniowski v H.B. Group Insurance Management Ltd. (2003), 57 C.P.C. (6th) 374 at paras 17-18 (ONSC) [Lesniowski].

3 Abulnar, supra note 1.

4 Sullivan v Judith Irving-Zed Photography Inc. (1994), 48 A.C.W.S. (3d) 703 at para 10 (NBCA) [Sullivan].

5 Al's Steak House & Tavern Inc. v Deloitte & Touche, [1998] O.J. No. 6545 at para 4 (Gen Div) [Al's Steak House].

6 Tridici v M.E.P.C. Canadian Properties Ltd., [1978] 3 A.C.W.S. 385 at para 4 (Ont H Ct J) [Tridici].

7 International Chemalloy Corp. v Friedman, [1983] O.J. No. 2108 (SC) [International Chemalloy].

8 Ormiston v Matrix Financial Corp., 2002 SKQB 257 at para 16 [Ormiston].

9 Poulton v A&P Properties Ltd., [2005] O.J. No. 649 at para 20 (SC) [Poulton].

10 Lipovetsky v Sun Life Assurance Company of Canada, 2018 ONSC 1664 [Lipovetsky].

11 Ibid at paras 7, 10.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions