Category: Exclusion of Witnesses

No “Essential Of Justice” To Be Threatened By Permitting Plaintiff To Remain In Courtroom During Testimony Of Expert Witness

In Danielsen v. Johnson, the Plaintiff was in the midst of being cross-examined when he was asked to step down in order to accommodate an expert witness who was ready to testify. Counsel for the Defendant asked that the Plaintiff be excluded from the courtroom during the testimony of the expert witness, and Plaintiff‘s counsel refused. The Court considered the previous Court of Appeal decision is Sisson, with respect to the relevant legal test to be followed. The Court ruled that there would be no “essential of justice” that would be threatened by permitting the Plaintiff to remain in the courtroom.


[2]             There is case law that deals with the question of when parties to the proceedings should be excluded, and the leading case seems to be a 1951 case from our court of appeal, Sisson v. Olson, [1951] 1 W.W.R. (N.S.) 507, where the court says this at para. 6 of the judgment of Judge O’Halloran:

But in my judgment, a party to an action (if not dismissed therefrom) cannot escape remaining a party while the action is in progress.  It would be plainly unreasonable to attempt, not to say impossible to accomplish, to deprive him of that status at any stage of the proceedings in the action.  It must follow, in my judgment, that appellants have as much right to attend each other’s discovery examination as they have to remain in court and listen to each other’s testimony at the trial itself.

[3]             And at para. 7:

Acceptance of this conclusion does not deny jurisdiction in the court at the trial or in the presiding judicial official at any stage of the proceedings to order the physical exclusion of a party, should a violation of an essential of justice occur or be threatened, if exclusion is not directed.  What may constitute such a violation depends on the situation in each case appraised in its own atmosphere, see Bird v. Vieth (1899) 7 B.C.R. 31. 

[4]             The defence here argues that we have the situation where there is a threatened violation of an essential of justice.  What makes the case at bar different from any of the other cases which I have been referred to is three-fold:  one, this is a trial, while the precedents with which I was provided (including Sisson) dealt with an examination for discovery; second, the plaintiff is in the midst of cross-examination; and third, defence counsel has agreed to accommodate plaintiff‘s counsel and, more importantly, a medical witness, by standing down the cross-examination.  If he had not agreed to that it could be that the application would be on the other foot and there would be an application to stand down the witness.

[5]             Those are important considerations, I agree, but in my view they are not enough to remove the heavy onus which is on the applicant to have the plaintiff excluded, and I rely on the principle as set out in Sisson that parties get to be in the courtroom except in situations where an essential of justice is threatened.

Court Of Appeal Orders New Trial After Certain Witnesses Excluded From Testifying

In Houston v. Kine, the trial was adjourned for a five month period of time. During the break in trial, ICBC obtained video surveillance of the Plaintiff. ICBC’S lawyers failed to properly disclose the surveillance tapes in time, causing the Court to exclude the tapes. The Court went further, and also excluded the witnesses who had obtained the tapes. The lawyer for ICBC appealed, and the Court of Appeal allowed the appeal, ordering a new trial.


[29]           The trial judge also referred to her order, made at the outset of the trial, that the defendants disclose the names of the witnesses they intended to call. She observed that while the defendants had provided a witness list that referred to the witnesses as “Witness one, Witness two” etc., this was insufficient, and she ordered the defendants to disclose names and contact numbers of the witnesses. In so doing she expressly stated that one of her reasons was to prevent surprise or ambush and to allow both counsel the opportunity to prepare in advance with full knowledge of the intended witnesses.


[30]  In her comments to counsel for the plaintiff at the time of the application to call the observation witnesses, the trial judge said:

… but if the defence intends to call eye witness evidence rather than the video, and I did say when, when I ordered the defence to disclose the list of witnesses, that we don’t use that as, as a basis for excluding further witnesses, if there are, I was quite general about the requirement of the will say statements and certain of the rules don’t require a will say statement. I, I added that. I, I am not sure how your position affects the defendants’ ability to just call evidence about what happened between – – what was observed by, by a witness between October – – on the October/November weekend.


[31] The obvious difficulty with the viva voce evidence was that the observers were unknown to the defendants prior to the hiatus in the trial. The earliest that they could have been identified was in November of 2009. By then, the plaintiff’s preparation for trial was all but over. To constrain the defendants’ ability to react to the plaintiff’s evidence to “prevent surprise or ambush” in my view unfairly restricted their ability to have the proceeding determined on its merits. As the trial judge accepted that there was no restriction on calling lay witnesses, she erred in imposing that restriction respecting witnesses who could comment on the plaintiff’s activities during the hiatus in the trial.


[32] The trial judge’s second reason for refusing to allow the observation witnesses to testify was that:


It would be inconsistent with my previous order and with the objects of the Rules, expressed in R. 1(5), “to secure the just, speedy and inexpensive determination of every proceeding on its merits,” to allow the defendants to, in effect, ambush the plaintiff with this evidence, which has been disclosed only recently.


[33] In my view the trial judge here misapplied Rule 1(5), focussing on speed in the completion of the proceedings at the expense of their merits. The Rule and the third factor in Stoneemphasize the importance of the determination of a proceeding on its merits. In order to determine a proceeding on its merits, the admissible evidence that is tendered by a party and is relevant to matters in issue should be considered.


[34] In addition, given that the original trial estimate was exceeded by the plaintiff’s case, necessitating the adjournment of the trial that caused the hiatus that brought about the acquisition of new evidence by the defendants, I am unable to accept that the delay resulting from the proposed evidence should have been treated any differently from the delay that was occasioned by the initial inadequate trial time estimate. The failure to do so prevented the determination of these proceedings on their merits. I conclude that the trial judge erred in law in refusing to permit the witnesses to give viva voce evidence at the trial…


[36] Here, the credibility of the plaintiff was a critical factor in the trial judge’s assessment of quantum, and the evidence of the observers was intended todirectly address the plaintiff’s credibility. In my view, the refusal of the trial judge to permit the defendants to adduce evidence to challenge the plaintiff’s physical abilities at the date of the trial was unfair, and given the importance of this evidence to the ultimate award of damages for future diminished earning capacity and future cost of care, I see no alternative but to order a new trial on damages. I would thus allow the appeal and order a new trial.

Court Discusses Area Of Law Pertaining To Exclusion Of Witnesses

The main reason why an order for an exclusion of witnesses is sought is so as to prevent witnesses from either side from shaping their testimony to their benefit, or to the other side’s detriment.


In He v. Yeung, the Court denied a request to exclude witnesses from the courtroom. The Court discussed the area of law pertaining to exclusion of witnesses.


[6] While the Rules of Court in Alberta (since 1923), in Manitoba (since 1913), in Ontario (since 1913), and in Saskatchewan (since 1921) provide that a judge may order a witness to be excluded at the request of either party, no such provision is specified in the British Columbia Rules or in a British Columbia statute.  Accordingly, it is the inherent jurisdiction of the Court which confers the power to exclude witnesses in civil trials.


[7] The traditional reasons for excluding witnesses include:  (a) if the hearing of opposing witnesses were permitted, the listening witnesses could ascertain the points of difference between their testimonies and could shape their own testimony to better advantage; and (b) regarding witnesses on the same side of the litigation, it deprives the later witness of the opportunity of shaping his or her testimony to correspond with the testimony of the earlier witness.


[8] In Bird et al. v. Vieth et al. (1899), 7 B.C.R. 31 (S.C.–F.C.), McColl C.J. on behalf of the Court stated that the ruling of a trial judge to exclude defendants as if they were witnesses was in error, and that a new trial should be allowed.  In the context of that appeal, the following statement was made:


We are of opinion that the learned trial Judge erred in dealing with the question of the defendants’ exclusion from the Courtroom as if they were in the same position as a witness, not a party to the action, whose exclusion, if requested, is commonly ordered as of course.  (at pp. 31‑32)


[9] In McIntyre et al. v. McIntyre, [1925] 2 W.W.R. 581 (B.C.S.C.), Macdonald J. ruled that both plaintiffs who would be witnesses were entitled to remain in the Court but that, with the concurrence of their counsel, the one plaintiff would be excluded while the other plaintiff was giving evidence.  The rationale for why it was necessary for the plaintiffs to be available was described as follows:


If that were granted and the plaintiff excluded, something might arise and counsel would not be aware of what his client’s views were on the matter, and he would have to run out of Court. … The party instructing counsel would not be in a position to conduct his case if he were excluded from the Court.  (at p. 582).


[11]         The exclusion of witnesses should be essential to the discovery of the truth.  Although Messrs. Yeung and Ho are not “parties” to this litigation, I am satisfied that their presence in the Courtroom does not threaten the discovery of the truth.  They have acted throughout as if they were principals, and as if they were the parties to this Action.  In particular, they have provided the instructions to counsel as if they were parties.  Accordingly, if they were excluded, counsel would not be in a position to conduct the case for the Plaintiff and the case for the Defendant as they would not be aware of their clients’ views as matters evolve at Trial.  In this regard, Messrs. Yeung and Ho are the only potential witnesses who have firsthand knowledge of the issues, the discussions, and the negotiations which have resulted in it being necessary for there to be a trial. 


[12]         I am satisfied that it is in the interests of justice that I exercise the discretion available to me to allow Messrs. Yeung and Ho to remain in the Court.  Accordingly, the application made on behalf of the Plaintiff is denied.