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.
The Divisional Court included in its analysis a review of the theory of deferred indefeasibility and the competing interests of victims of mortgage fraud within the context of the Ontario Land Titles Act (LTA).
Canadian cannabis policy announcements over the past year have spurred investment in licensed cannabis producers and dealers ("Licensed Producers"), resulting in one of Canada's newest growth industries.
Factoring is the legal relationship between a financial institution and a business selling goods or providing services to a trade customer, pursuant to which the Factor purchases the accounts receivable owing to the Client by its Customer.
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