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Defendant Seeks To Exclude Plantiff From His Own Trial

Short but interesting reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, rejecting a defence application to remove a plaintiff involved in a personal injury trial from the court room while an expert witness testified.

In today’s case (Danielsen v Johnson) the Plaintiff’s cross-examination was being interrupted to accommodate an expert witness who was scheduled to testify.  The Defendant argued the Plaintiff should be excluded from the courtroom.  Mr. Justice Silverman disagreed and finding the Plaintiff could watch the expert testify and at best this may effect weight of the Plaintiff’s testimony.  The Court provided the following reasons:

[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 Sissonthat parties get to be in the courtroom except in situations where an essential of justice is threatened.

[6]             Consequently, the application is dismissed.  The plaintiff may remain in the courtroom.

[7]             I would add that it remains open for the defendant to argue that the plaintiff’s evidence has in some way been affected by his presence in the courtroom, in a tangible way, while other evidence has been heard, and that this should be taken into account when assessing his evidence or aspects of it.

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