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Evidence - Exclusion of Witnesses

. 2505243 Ontario Limited (ByPeterandPaul.com) v. Princes Gates Hotel Limited Partnership

In 2505243 Ontario Limited (ByPeterandPaul.com) v. Princes Gates Hotel Limited Partnership (Ont CA, 2022) the Court of Appeal considered an interesting modern practice point about excluding witnesses during a trial:
[36] Finally, PG contends that the trial judge erred by not declaring a mistrial when it became known that three of the respondent’s proposed witnesses had been watching the trial unfold for six days by Zoom, in one of its law firm’s boardrooms.

[37] Neither party sought an order excluding witnesses. In her mistrial ruling, the trial judge said that, although she found the situation concerning, it was not so egregious that it would require the extreme remedy of either a mistrial or the striking of evidence. After the trial, the trial judge noted in her judgment that, “in retrospect, while the issue was very concerning when first raised, in the end it is not one which would change this Court’s view with respect to the reliability of the testimony of the impugned witnesses”.
. Narayan et al. v. Dhillon

In Narayan et al. v. Dhillon (Div Ct, 2020) the Divisional Court considered R52.06 ['Exclusion of witnesses'] where a person assisting a party was excluded from a Small Claims Court trial:
[7] Amongst other issues raised, the appellants argued that the trial judge erred in excluding Ms. Narayan from the courtroom at the beginning of the trial, before any evidence had been called. These are the circumstances. At the outset, the Deputy Judge asked whether anybody was seeking an exclusion of witnesses and counsel for the plaintiff answered that he was asking that Ms. Narayan should be included in the order. The Judge said that since she had been noted in default she was now only a witness, implying that she was no longer a party. Counsel for the defendants interjected and said that Ms. Narayan would be giving him instructions. The trial judge replied that if counsel was objecting, then exclusion was necessary so that her evidence would not be tainted. When counsel for the defendants asked rhetorically how he was going to get instructions without Ms. Narayan, the trial judge said that it was difficult because she was no longer a defendant. He asked if she was a director. Counsel for the defendants said she was an officer but Ms. Narayan herself interjected that this was incorrect, she was only an employee.

[8] The trial judge then said that if she was a director or president, he might have made an exception, but not for an employee. Counsel for the defendants said that she had full authority to be present for Airside. The Deputy Judge then asked how an employee could have full legal authority to represent the corporation. The Judge ruled that his “hands were tied … unless your friend agrees with it, the law is pretty clear on that. If there is an order for exclusion of witnesses, the parties are included…” Counsel for the plaintiff said that the defence could have Mr. Vaccarello, another defendant, giving instructions. The trial judge said that as an officer, he could give instructions. “An officer has the right to represent… a company, but not an employee [like Ms. Narayan].”


[9] The trial judge, in my opinion, erred in law in his understanding of his witness exclusions powers. The exclusion of witnesses is governed by Rule 52.06 of the Rules of Civil Procedure. The Rule states as follows:
R52.06 Exclusion of Witnesses

Order for Exclusion

52.06(1) The trial judge may, at the request of any party, order that a witness be excluded from the courtroom until called to give evidence, subject to subrule (2).

Order not to Apply to Party or Witness Instructing the Lawyer

52.06(2) An order under subrule (1) may not be made in respect of a party to the action or a witness whose presence is essential to instruct the lawyer for the party calling the witness, but the trial judge may require any such party or witness to give evidence before any other witnesses are called to give evidence on behalf of that party.
[10] Pertinent to subsection 2, Ms. Narayan was not only a witness, she was a person requested by defendants’ counsel to be present to instruct him during the trial. It had nothing whatever to do with whether she was an employee or an officer. Nor did it have anything to do with whether she was a “representative” of the company in any formal or legal sense. Counsel for the defendant had made the judgment that she was the best person to instruct him during the trial. He had an absolute right to this decision, barring exceptional circumstances of which there were none. In the words of 52.06(2), she was a “witness whose presence [was] essential to instruct the lawyer for the party calling the witness.”

[11] That Ms. Narayan was also going to be a witness, did not change anything. In Canadian Radio-Television & Telecommunications Commission v. Canada (Human Rights Tribunal), 1990 CarswellNat 614, [1990] F.C.J. No. 819, [1991] 1 F.C. 141 (F.C.T.D.) a witness had been excluded who also had been chosen as the instructing party by the C.R.T.C. Justice MacKay held that this was an error. Although relying principally on Section 50 of the Human Rights Act, Justice MacKay also held that the tribunal had breached its duty of fairness: see para. 24. To the argument that other individuals could have filled in to represent and instruct, Justice MacKay disagreed, saying,
25 …This surely is a question for C.R.T.C., not for the tribunal or for this Court.

26 … If [a party] …is not free to select its representative as it sees fit, then the person who stands in at the hearing and whose presence is primarily to instruct counsel may not have the full confidence of those responsible for the corporate or statutory body. That surely is the basis on which a body selects its representative and is the key to accepting the representative named as the person with the responsibility assigned by the corporation, or in this case C.R.T.C., to instruct counsel on its behalf. (Carswell)
[12] Arguably, the situation differs from Liu Estate v. Chau, (2004) 2004 CanLII 8234 (ON CA), 236 D.L.R. (4th) 711, [2004] O.J. No. 306 (Ont. C.A.) and my previous case of GFC Landscaping v. Januszewigz, 2018 ONSC 637, 289 A.C.W.S. (3d) 299 (Ont. S.C.J.) because it might be said that Ms. Narayan was not a party, unlike the situation in those decisions. However, there is no need to determine the esoteric issue of whether a party in default remains a “party” for the purpose of Rule 52.06(2).

[13] Whether a party or not, based on Rule 52.06, the defendants had the right to choose a person to instruct counsel acting on their behalf. That is the intention of the rule. Subsection 1 gives a broad discretion to a trial judge to exclude witnesses at the request of a party. This, however, on the clear statutory language, is subject to subsection 2 which prohibits the application of this provision to “a party to the action or a witness whose presence is essential to instruct the lawyer for the party calling the witness.” Even if Ms. Narayan was not a party, she was inarguably an essential person to instruct counsel.

[14] Presence at trial is a fundamental right and is a necessary adjunct of due process. It is a matter of actual fairness, the appearance of fairness and openness: Liu Estate v. Chau, at paras. 23-24, 27. If there are facts testified to by a party for the other side, such as the plaintiff Ms. Dhillon in this instance, counsel ought to have his choice of who to advise him with respect to cross-examination of the witness and any other pertinent matters which might arise. The instructing individual will generally have a more informed and in-depth factual knowledge than will the lawyer.

[15] Excluding Ms. Narayan from the trial was in contravention of the rules and was an error of law. The focus turns to whether there has been a miscarriage of justice. The leading Liu Estate case provides guidance not only on the exclusion from the courtroom issue but with respect to remedy as well. The first factor is that this was a very strong case for the plaintiff. Having read the entire transcript of the trial I believe that the trial judge’s bad faith and other negative findings of fact were fully justified. The invoices were a not so clever dodge to attempt to justify the failure to pay Ms. Dhillon for the work she had done. In their actions at the time and at the trial, there was considerable deceit practised by the defendants.


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