Pursuant to Rule 6.14, the Plaintiff appealed an Applications Judge’s Decision dismissing her Application to exclude the Defendants from attending at each other’s Questioning on Affidavits, filed in support of the Defendants’ Security for Costs Applications (the “Exclusion Application”). In dismissing the Appeal, Marion J. set the out the applicable framework for excluding a party from attending the Questioning on Affidavit of another party in the same Action.

The claim arose from a surgical procedure involving several Defendants comprised of doctors, their professional corporations, and the center at which the procedure took place.

Before the Applications Judge, the Plaintiff tendered cases supporting the proposition that the Court can exclude Defendant parties from each other’s Questioning if there is an apprehension of misconduct based on “cogent evidence of tailoring or harmonization of evidence”. However, the Defendants distinguished the Plaintiff’s line of cases based on the fact that they dealt with Questioning for discovery, not Questioning on Affidavits.

The Defendants argued that Questioning on Affidavits was akin to a Trial and as such, by analogy, Rule 8.12 was engaged. Rule 8.12 addresses the exclusion of witnesses and parties at Trial. The Defendants urged the Applications Judge to apply a line of cases from Ontario that addressed the exclusion of witnesses. However, the onus under these cases was more onerous. 

Before setting out the applicable framework, Marion J. reviewed the case law related to the exclusion of parties from Questioning for discovery and Trials.

Justice Marion noted that Applications for exclusions of parties from Questioning for discovery “occur with some frequency in Alberta and other provinces”. However, the Rules do not specifically provide for excluding a party from Questioning for discovery. Nonetheless, the Court has discretion to exclude parties under Rule 1.4, the case law, and section 8 of the Judicature Act, RSA 2000, C J-2. Rule 1.4 gives the Court broad procedural discretion to ensure the fair and expeditious determination of an Application or proceeding.

The Court found that the Alberta case law was clear that the Applicant must justify an exclusion. The focus of the inquiry is on the integrity of the legal process. The general test is “whether exclusion is necessary for the fair and proper judicial conduct of the action”. The Applicant must establish that there is a “reasonable apprehension of misconduct or prejudice which, without an order, will defeat the object and purpose of the discovery questioning”. The test is applied to the specific circumstances of each case in light of various factors. For example, the Court will analyze the “impacts of the decision to exclude or not exclude on the party sought to be excluded, the party seeking exclusion, the person testifying, the functioning of the discovery process itself, and the impact on the action more generally”.

Next, the Court turned its attention to the test for excluding parties from Trial. Generally, it is more difficult to exclude a party from attending at Trial than at Questioning for discovery because the Trial represents the final resolution of the parties’ rights.

Under the previous Rule 247, the Court could exclude a witness from Trial irrespective of whether the witness was a party or not. However, Rule 8.12 restricted the Court’s jurisdiction to exclude parties; and under Rule 8.12(3), a party may be excluded only if it interferes with the Trial process.

Lastly, Marion J. reviewed whether parties can be excluded from Questioning on Affidavit. Rule 6.7 stipulates that a person who makes an Affidavit can be questioned by any person adverse in interest. The Court has discretion to order an exclusion; however, Applications to exclude a party from Questioning on Affidavit are rare.

In reviewing the case law, Marion J. noted some crucial distinctions between Questioning for discovery and Questioning on Affidavit. Questioning for discovery is private and subject to the implied undertaking rule at common law and under Rule 5.33. Further, transcripts from Questioning for discovery are not filed. Rules 5.31 and 6.11(c) stipulate that the questioning party may nonetheless use Questioning for discovery transcripts, or portions of them, as “read-ins”, at Trial or in support of an Application against a party adverse in interest. On the other hand, transcripts from Questioning on Affidavit must be filed under Rule 6.7(b). Further, if an Applicant wants to exclude a party from attending another party’s Questioning on Affidavit, it would most likely have to apply for a restricted Court access Order under Rules 6.29 and surrounding Rules, or seek an injunction prohibiting the party from reviewing publicly available documents.

Lastly, Rule 5.25 outlines the scope of questions allowed at Questioning for discovery. A party is required to answer questions that are “relevant and material”. As per Rule 5.2, a question is “relevant and material” if its answer significantly helps to determine an issue in the Pleadings. On the other hand, the scope of questions at Questioning on Affidavit is limited to questions that are “relevant and material” to the issues raised in the underlying Application.

Justice Marion held that a more nuanced approach is required to exclude a party from Questioning on Affidavit. There are four principles that come into play. First, a party has the right to be present under Rule 6.7 unless excluded by the Court. The right to be present is particularly strong where the Application is for final relief. Second, the Applicant bears the onus to establish an evidentiary foundation justifying exclusion. Third, the general test is whether the exclusion is necessary for the fair and proper judicial conduct of the Action, with the focus being on the integrity of the legal process. Fourth, the general test is met where “reasonable apprehension of misconduct or prejudice which, without an order, will defeat the object and purposes of questioning on affidavit”.

Additional factors that are relevant in the context of Questioning on Affidavits include: (a) the nature of the underlying Application (where an Application involving final relief counts against the exclusion of a party); (b) the degree to which the apprehension or risk of evidence tailoring is mitigated by the fact that the Affiants have already attested to facts; and (c) whether the exclusion will actually address the concerned mischief (little is achieved through exclusion if the evidence of the parties has already been fully explored in Questioning for discovery or previous Questioning on Affidavits).

Justice Marion determined that the Exclusion Application was in the context of Security for Costs Applications, which involve a two-step process. First, the criteria in Rule 4.22 must be met. Second, the Court must ask whether it is just and reasonable to grant security. Security for Costs Applications are not final Orders but can end an Action. Therefore, the Defendants’ rights were not in jeopardy as they would be at Trial or on a Summary Judgment Application.

In considering the state of the Action and evidence, Marion J. found that little would be gained by excluding the Affiants from each other’s Questioning because Questioning on their Affidavits already took place and the transcripts had been filed and made public.

Based on the parties’ submissions and the record, there was no reasonable apprehension of evidence tailoring or misconduct by the Defendants. Further, an Order was not necessary for the fair and proper judicial conduct of the Action.