Carbone v Dawes, 2023 ABKB 729

Court of King’s Bench of Alberta Citation: Carbone v Dawes, 2023 ABKB 729 Date: 20231220 Docket: 2301 02955 Registry: Calgary Between: Angela Carbone Plaintiff - and - Dr. Jeffrey C Dawes, Jeffrey C Dawes Professional Corporation, Jeffrey C Dawes MD Plastic Surgery, Surgical Centres Inc, Elisha Marie Makar, Elisha Makar, also known as E Doyle, and Dr Mohamed Nanji Defendants _______________________________________________________ Reasons for Decision of the Honourable Justice M.A. Marion _______________________________________________________ I.

Introduction [ 1 ] This decision addresses the legal framework applicable to an application to exclude a party to an action from attending the questioning on affidavit of other parties to the action. [ 2 ] The Plaintiff, Angela Carbone ( Ms. Carbone ), appeals the September 19, 2023 decision ( Decision ) of Applications Judge Park dismissing her application to exclude the Defendants from being in attendance at each other’s questioning on affidavits filed in support of the Defendants’ security for costs applications. Ms.

Carbone’s other relief sought related to the questionings was also denied. [ 3 ] For the reasons set out below, the appeal ( Appeal ) of the September 19, 2023 Decision is dismissed in part and allowed in part. II. Procedural Background [ 4 ] The Appeal is one procedural dispute nested within a significant and rapidly expanding procedural background flowing from the Defendants’ security for costs applications. That background is summarized below.

[ 5 ] Ms. Carbone filed the action on March 6, 2023 and amended it on March 17, 2023. She claims $100,000 in general damages, as well as punitive and aggravated damages, for negligence, misrepresentation, breach of contract, and battery related to a March 4, 2021 surgical procedure. [ 6 ] On March 28, 2023, the Defendants Dr. Jeffrey Dawes ( Dawes ) and Jeffrey C. Dawes Professional Corporation ( Dawes Defendants ) filed their Statement of Defence.

The Dawes Defendants’ Statement of Defence stated that Jeffrey C Dawes MD Plastic Surgery is not a corporate entity and not a proper party to the action but, if it is, then it adopted the Dawes Defendants’ pleading. That issue is not before me, but for the purposes of these reasons “Jeffrey C Dawes MD Plastic Surgery” is included as part of the Dawes Defendants. The Dawes Defendants’ Statement of Defence was filed by Bennett Jones LLP. [ 7 ] On April 6, 2023, Surgical Centres Inc ( SCI ), Elisha Marie Makar, Elisha Makar (also known as E. Doyle)(collectively Makar ) and Dr.

Mohamed Nanji ( Nanji ) filed their Statement of Defence. This Statement of Defence was filed by Miller Thomson LLP. [ 8 ] On April 12 and 17, 2023 respectively, Ms. Carbone filed a Reply to the Dawes Defendants’ Statement of Defence and the April 6, 2023 Statement of Defence. [ 9 ] On June 6, 2023, Nanji filed a Notice of Change of Representation referencing his change of counsel from Miller Thomson to Bennett Jones. [ 10 ] On June 28, 2023, the Dawes Defendants filed an application for security for costs, which was supported by a June 26, 2023 affidavit of Dawes. [ 11 ] On July 24, 2023, Dr.

Nanji filed an application for security for costs, which was supported by a July 24, 2023 affidavit of Nanji. [ 12 ] On July 31, 2023, the Dawes Defendants and Nanji filed an application for a procedural order in respect of their security for costs applications, which was returnable on August 11, 2023. The application sought a

schedule for Ms. Carbone’s filing of response evidence, questioning on affidavits, and adjourning their security for costs applications to civil chambers on September 22, 2023. [ 13 ] On August 4, 2023, SCI and Makar ( SCI Defendants ) filed their own application for security for costs, which was supported by an August 1, 2023 affidavit of Makar and an August 1, 2024 affidavit of Sameer Suleman ( Suleman ). Suleman is the corporate representative of SCI in the action. [ 14 ] On August 4, 2023, Ms.

Carbone filed a cross-application for a procedural order in respect of the security for costs applications, in particular seeking to have them directed to a special chambers application. She also sought to address her position that Bennett Jones was in a conflict of interest arising out Nanji’s change of counsel from Miller Thomson to Bennett Jones after the close of pleadings. [ 15 ] On August 11, 2023, Applications Judge Mason ordered ( August 11 Order ):

(1) Ms. Carbone to file and serve any response to the three security for costs applications ( SFC Applications ) by September 8, 2023; (2) questioning on affidavits to be completed by September 22, 2023; (3) the applicants to file and serve any affidavit or other evidence in response to Ms. Carbone’s affidavit by September 29, 2023; (4) an adjournment of the SFC Applications to October 6, 2023. Applications Judge Mason also granted a separate order dismissing Ms. Carbone’s cross-application. [ 16 ] On September 1, 2023, Ms.

Carbone applied before Acting Associate Chief Justice Jeffrey for a fiat permitting the late filing of a notice of appeal of the August 11 Order as well as the August 11 dismissal of her cross-application. Justice Jeffrey directed the parties to reattend before him on September 5, 2023, and again on September 6, 2023. On September 6, 2023, Justice Jeffrey granted a fiat to allow the filing of a notice of appeal in respect of the August 11 Order, but not the August 11 dismissal of Ms. Carbone’s August 4, 2023 cross-application.

Justice Jeffrey granted the Dawes Defendants and Nanji leave to apply for a reconsideration of his decision to grant the fiat once they had the transcripts of the proceedings before Applications Judge Mason. On September 8, 2023, Ms. Carbone filed the permitted notice of appeal of the August 11 Order, but on October 12, 2023 Justice Jeffrey set aside the fiat and struck the appeal of the August 11 Order. [ 17 ] On September 8, 2023, Applications Judge Mason varied her August 11 Order ( September 8 Order ). The variation order provided that (1) any questioning by Ms.

Carbone of Dawes or Nanji would take place between September 14 and 22, 2023;

(2) Ms. Carbone was to file and serve any affidavit or other evidence in response to the SFC Applications on or before September 29, 2023; (3) any questioning of Ms. Carbone on her response evidence was to be completed by October 6, 2023; (4) the physicians were to file and serve any affidavit or other reply evidence by October 13, 2023; (5) the SFC Applications of the physicians were adjourned to October 23, 2023; and (6) the dates in (1), (2) and (5) were peremptory on Ms.

Carbone. [ 18 ] Between September 8, 2023 and September 15, 2023, the parties communicated about the scheduling of the questioning of the physicians on September 18 (Dawes) and September 20 (Nanji), and the booking of a court reporter for the questioning. It appears there were other communications about scheduling Ms. Carbone’s questioning of Makar and Suleman on September 21, 2023 as well. [ 19 ] On September 15, 2023, Ms.

Carbone confirmed she had a court reporter arranged to attend virtually for the Dawes questioning during the evening of September 18, 2023 and the Nanji questioning in the afternoon of September 20, 2023. [ 20 ] On Saturday, September 16, 2023, counsel for the physicians (Ms. Viney) confirmed the logistics for the questioning with Ms. Carbone. In that correspondence, Ms. Viney indicated she was passing a Zoom invite for the questioning to counsel for Makar and SCI (Ms. Curcio-Lister). Ms. Viney also confirmed that Ms.

Viney planned to attend the virtual questioning of Makar and SCI. [ 21 ] On September 16, 2023, Ms. Carbone responded and objected to Ms. Curcio-Lister attending Ms. Carbone’s questioning of the physicians. Among other things, Ms. Carbone stated that Ms. Curcio-Lister’s attendance at the questioning would compromise the integrity of the questionings of Makar and Suleman. In response, Ms. Curcio-Lister confirmed “we will be in attendance” at all

questionings. Ms. Carbone confirmed her objection to Ms. Curcio-Lister’s attendance. [ 22 ] On Sunday, September 17, 2023, Ms. Curcio-Lister further confirmed her position that her clients, as parties to the action, have an inherent right to be present during the examination of the other party. Later that day, Ms. Carbone further detailed her position that the affiants should not be present at each other’s questioning. Ms. Carbone noted that, if Ms. Curcio-Lister’s clients insisted on attending Dawes’ questioning, Ms. Carbone would appear in morning chambers.

She also noted she had to devote her time to responding to Ms. Curcio-Lister’s position instead of preparing for questioning and requested an adjournment of the Dawes questioning scheduled for September 18, 2023. Ms. Curcio-Lister re-confirmed her clients’ position and that she objected to a late-notice chambers application. Ms. Viney confirmed she was not prepared to reschedule Dawes’ questioning. [ 23 ] On September 18, 2023, Ms. Carbone and Ms. Viney attended before Applications Judge Mason, who, I am advised, gave Ms. Carbone leave to bring a short-notice application on September 19, 2023. Ms.

Carbone again requested the Dawes questioning to be adjourned. At that time, Ms. Viney did not agree to adjourn the Dawes’ questioning as requested. Dawes was available and ready to proceed as previously scheduled on September 18, 2023, but that questioning did not occur. The Dawes questioning was later rescheduled. [ 24 ] On September 19, 2023, Ms. Carbone filed an application ( September 19 Application ), supported by her September 18, 2023 affidavit. In the September 19 Application, Ms. Carbone sought (in her words):

a) that the Defendants/Affiants to be cross-examined on their affidavits in support of their Security for Costs Applications, the Affidavits all being essentially identical as acknowledged by their Counsel, shall not be present at the cross-examinations of each other in order to meet the ends of justice ( Exclusion Application );

b) the Defendant Dr. Jeffrey Dawes is required to attend for cross-examination on his Affidavit in keeping with the prior orders of this Court;

c) any premium additional costs associated with court reporting services and transcripts to accommodate Dr. Dawes’ special request for an evening cross-examination, if granted, shall be borne by Dr. Dawes; and

d) cancellation fees associated with the Defendants’ refusals to agree to paragraph (

a) above for the originally scheduled Monday, September 18, 2023 cross-examination of the Defendant Dr. Dawes, and their last minute Sunday, September 17, 2023 stated intentions for Defendants/Affiants to attend each others’ cross-examinations on their harmonized and essentially identical Affidavits, are payable by the Defendants to the Plaintiff. The Application also sought an abridgement of time and costs. [ 25 ] The September 19 Application did not seek to vary the August 11 or September 8 procedural orders. [ 26 ] On September 19, 2023, Ms. Carbone, Ms. Viney, and Mr. Mulrain (for Ms.

Curcio-Lister) attended before Applications Judge Park in chambers. He heard and dismissed the September 19 Application and ordered Ms. Carbone to pay $500 in costs to the Bennett Jones’ clients and $500 in costs to the Miller Thomson clients. [ 27 ] Following the September 19 Order, Ms. Carbone did not immediately appeal the September 19 Order or apply to vary or stay the August 11 Order or the September 8 Orders with respect to the deadline to complete questioning on the affidavits. Instead, she carried on with her questioning:

a) on September 20, 2023, Ms. Carbone questioned Nanji on his affidavit. Makar and Suleman attended;

b) on September 21, 2023, Ms. Carbone questioned Makar and Suleman on their affidavits; and

c) on September 25, 2023, Ms. Carbone questioned Dawes on his affidavit. [ 28 ] On September 28, 2023, after these questionings took place, Ms. Carbone commenced this Appeal by filing a Notice of Appeal of Applications Judge Park’s Decision with a return date of October 25, 2023. [ 29 ] Also on September 28, 2023, Ms. Carbone filed an application seeking to vary the September 8 Order’s deadline of September 29 for her to file her responding evidence on the SFC Applications.

She relied on a September 27, 2023 affidavit, which highlighted that she did not yet have the transcripts from her questioning of the affiants. Ms. Carbone intended to have the application set down for September 28, 2023, but the clerk set it down for October 2, 2023 in applications judge’s chambers (which was after the September 29, 2023 deadline for her affidavits). It appears that Ms. Carbone then attended in urgent matters chambers before Justice Wilson, who dismissed the variation application. I understand from the parties that Ms.

Carbone has appealed Justice Wilson’s September 28, 2023 order to the Court of Appeal. [ 30 ] On September 29, 2023, Ms. Carbone swore two affidavits (which were filed on October 3, 2023) in response to the SFC Applications – one in response to the Dawes Defendants’ security for costs application and one in response to the Nanji security for costs application. [ 31 ] On October 3, 2023, the Dawes Defendants applied to strike a portion of Ms. Carbone’s affidavit in response to the Dawes affidavit.

The application was returnable on October 10, 2023. [ 32 ] On October 5, 2023, an amended order reflecting Applications Judge Park’s September 19, 2023 Decision was filed. [ 33 ] On October 6, 2023, Ms.

Carbone filed an application seeking: (1) an addressing of the alleged conflict of Bennett Jones ( Conflict Application ); (2) striking Nanji’s pleadings and ordering a costs penalty for late filing of his affidavit of records ( Nanji AOR Application ); (3) directing the Dawes Defendants’ security for costs application, the Nanji security for costs application, the Conflict Application, and the Nanji AOR Application to proceed to a special application before a Justice. Ms. Carbone’s October 6, 2023

application was also returnable on October 10, 2023 and was supported by affidavits dated October 6, 2023 and October 10, 2023. [ 34 ] On October 10, 2023, Applications Judge Farrington granted two orders ( October 10 Orders ):

a) in one order, he directed the parties to

schedule the security for costs applications of the Dawes Defendants and Nanji to a special application before an applications judge. He granted the parties leave to return to regular applications judge’s chambers respecting the scheduling of the Conflict Application and the Nanji AOR Application (it is not clear whether this has happened);

b) in another order, struck paragraph 19 of Ms. Carbone’s September 19, 2023 affidavit and certain portions of Ms. Carbone’s October 10, 2023 affidavit. [ 35 ] On October 11, 2023, Ms. Carbone filed a further affidavit, apparently in response to the SFC Applications. [ 36 ] On October 13, 2023, Ms. Carbone filed an appeal, returnable on November 8, 2023, of some or all of Applications Judge’s Farrington’s October 10 Orders ( October 10 Orders Appeal ).

It is not clear from the Notice of Appeal which specific aspects of the October 10 Orders are appealed. [ 37 ] On October 23, 2023, Applications Judge Prowse made two orders ( October 23 Orders ). First, he ordered that SCI’s August 4, 2023 security for costs application be set down for a half-day special application in applications judge’s chambers, that it would be heard on consecutive days with the security for costs applications of the Dawes Defendants and Nanji, and that they would all be heard by the same applications judge. Second, he ordered Ms.

Carbone to file any application to compel answers in respect of her questioning of Suleman or Makar, by November 15, 2023, and to file any further response evidence in respect of the SCI Defendants’ security for costs application, by November 30, 2023. Applications Judge Prowse also ordered any questioning of Ms. Carbone on any response evidence she may file, to be completed by December 14, 2023. [ 38 ] On October 25, 2023, this Appeal came before Justice Funk in morning civil chambers. Ms. Carbone sought an adjournment, requesting time to provide further evidence and argument.

The Defendants opposed the adjournment and argued that the Appeal should be dismissed as moot. Justice Funk granted the adjournment to November 17, 2023, but did not seize herself. She indicated that the threshold issue on November 17, 2023 would be whether the Appeal is moot or not. No order was taken out in respect of the October 25, 2023 attendance. [ 39 ] On October 31, 2023, Ms. Carbone filed a further affidavit in respect of the Appeal. [ 40 ] On November 8, 2023, the October 10 Orders Appeal was before Justice Price in morning civil chambers.

She adjourned the October 10 Orders Appeal to November 30, 2023 and directed Ms. Carbone to advise Ms. Viney which paragraphs of the October 10 Orders were the subject of the Notice of Appeal. [ 41 ] On November 10, 2023, Ms. Carbone filed an application to compel answers to undertakings refused and questions objected to during the questioning of Makar and Suleman on their affidavits filed in respect of the SCI Defendants’ security for costs application. I am advised by the parties that Applications Judge Mason heard this application over two days, on November 15 and 16, 2023.

By the time of the Appeal hearing before me on December 11, 2023, the form of order arising out of this decision had not yet been entered, but I understand based on a draft form of order that, on November 16, 2023, Applications Judge Mason dismissed the application except with respect to one objected question related to when SCI was acquired by Clearpoint Health Network. Ms. Carbone advised me that she intends to file a notice of appeal of Applications Judge Mason’s decision. [ 42 ] On November 17, 2023, this Appeal came before me in morning civil chambers. Ms.

Carbone sought another adjournment, in part on the basis that I had not had the opportunity to review the file materials for the Appeal. Ms. Viney read me portions of the transcript of the October 25, 2023 attendance. I heard submissions on the question of whether the Appeal was moot, as was contemplated by Justice Funk. Ms. Carbone put on the record her concerns or position about procedural unfairness. I reserved my decision and advised the parties I would be back to them once I reviewed the file. Later that day, Ms.

Carbone wrote the court a letter (and then filed it appended to an affidavit) expressing her confusion about the scope of what the court was deciding and the written materials the court would be using. She requested the opportunity to receive clarification on that scope and to file written submissions. [ 43 ] On November 20, 2023, I issued an Endorsement in which I found it was not appropriate to strike or dismiss the Appeal as moot as requested at that time, but that any arguments about mootness could be addressed on the hearing of Appeal.

I seized myself of the Appeal only and made procedural directions for the filing of short briefs and its scheduling before me. I reserved the question of costs relating to the November 17, 2023 appearance pending the decision on the Appeal. The Appeal was scheduled before me on December 11, 2023. [ 44 ] On November 23, 2023, the Dawes Defendants and Nanji applied to have the SFC Applications scheduled to a special application pursuant to the October 10 Orders and the October 23 Orders. On November 28, 2023, Ms.

Carbone filed a cross-application seeking an acknowledgment that the November 23 application was an abuse of process and that Ms. Carbone had been cooperative in the scheduling of the special applications. [ 45 ] On November 24, 2023, Ms. Curcio-Lister advised me that, since the Appeal would be heard on December 11, 2023, the Defendants proposed to Ms. Carbone that the issue of mootness be foregone, and that Ms.

Carbone agreed that the issue of mootness will not be pursued at the Appeal hearing. [ 46 ] On November 28, 2023, Applications Judge Prowse directed the scheduling of the SFC Applications to be heard on two consecutive days before an applications judge other than Applications Judge Mason. I understand that Applications Judge Mason has recused herself from hearing the SFC Applications. I am advised by counsel that the SFC Applications are now scheduled to be heard on March 19 and 20, 2024. [ 47 ] On November 30, 2023, the October 10 Orders Appeal was before Justice Feasby in morning civil chambers, and that appeal

was adjourned by consent to January 8, 2024. III. Standard of Review [ 48 ] An appeal from an applications judge is a hearing de novo : Kadco Construction Inc v Sterling Bridge Mortgage Corp , 2021 ABCA 52 at para 11 . The standard of review is correctness: Bahcheli v Yorkton Securities Inc , 2012 ABCA 166 at para 30 . New evidence presented on appeal necessarily requires a fresh assessment of the facts: Bahcheli at paras 17 and 30 ; Gudzinski Estate v Allianz Global Risks US Insurance Co , 2012 ABCA 5 at paras 21 and 24 . IV. Issues [ 49 ] The issues on this application are:

a) Should the Court order that the Defendant affiants are excluded from each other’s questioning on their affidavits filed in support of the SFC Applications?

b) Should the Court order that Dawes is required to attend for questioning on his affidavit?

c) Should the Court order Ms. Carbone the requested costs associated with the Dawes’ questioning? V. Analysis A. Should the Court Order that the Defendant Affiants are Excluded from Each Other’s Questioning on their Affidavits filed in support of the SFC Applications? 1. Positions of the Parties [ 50 ] Ms.

Carbone relies on Lambert v Lamore , 1997 ABCA 398 and Speakman v Canada (Attorney General) , 2004 ABQB 319 (Master) for the proposition that the court has discretion to exclude defendant parties from each other’s examinations where there is an apprehension of misconduct based on cogent evidence of tailoring or harmonization of evidence. [ 51 ] The Defendants appear to agree that the court has discretion to exclude parties from questioning on affidavits. However, they argue that Lambert and Speakman dealt with examinations for discovery, not questioning on affidavits.

They argue that questioning on affidavits is more akin to a trial process and that the court should, by analogy, have regard to rule 8.12 of the Alberta Rules of Court , Alta Reg 124/2010 ( Rules ) which addresses exclusion of witnesses and parties at trial. The Defendants argue that the right of a party to be present at their trial extends to other parts of the litigation process, including questionings on affidavits.

The Defendants point out that the mischief which might occur when parties observe questioning for discovery is mitigated on a questioning on affidavits where the affiants have filed evidence in advance. They urge the Court to apply a line of cases from Ontario dealing with exclusion orders in the context of questioning on affidavits, which requires an arguably more onerous test for exclusion: a “real risk” of tailoring or harmonization (which the Defendants argue is not present here).

In the alternative, the Defendants argue that, even if the Lambert and Speakman line of cases is applied to questioning on affidavits, Ms. Carbone did not discharge her onus to provide cogent evidence pointing to a reasonable apprehension of misconduct. 2. The Applications Judge’s Decision [ 52 ] In dismissing Ms. Carbone’s Exclusion Application, Applications Judge Park gave these succinct reasons: Ms. Carbone, I'm dismissing your application to exclude witnesses.

From my perspective, Lambert and Speakman are somewhat distinguishable from the matter before the Court in that those decisions deal with questioning or examinations for discovery, whereas we are dealing here with cross-examination on affidavit. I agree with counsel's submissions that this is a process akin to a trial. As noted by counsel under rule 8.12 of the Rules of Court, a judge has the ability to exclude a witness from the examination of another party, provided that that witness is not themselves a party.

Even if I'm wrong about the applicability of rule 8.12 to the application before the Court, such that it is the decision in Lambert followed by the decision in Speakman that applies, I disagree that the threshold has been met here. As noted by Judge Smart at paragraph 2 of the Speakman decision, Lambert stands for the proposition that the Court retains a discretion to exclude defendants from examinations of other defendants, that exclusion orders should only be granted in exceptional circumstances.

I do not find that the exceptional circumstances referred to in the case law exist here and so would further dismiss the application on that basis. [ 53 ] The parties’ arguments and Applications Judge Park’s Decision engage the question of whether the same principles that apply to excluding a party from questioning for discovery under

Part 5 of the Rules , or from trial under rule 8.12 , or some other principles, apply to an application to exclude a party from questioning on affidavits under rule 6.7 . As the parties did not provide me Alberta any cases that address exclusion from questioning on affidavits, I address these matters below. 3. Excluding Parties from

Part 5 Questioning for Discovery

[54] Applications for exclusion of parties from examination for discovery (or, as it is also sometimes referred to in Alberta,

Part 5questioning or questioning for discovery) occur with some frequency in Alberta and other provinces. Courts must be cautious inconsidering decisions from other provinces that may be distinguishable because of their unique rules or jurisprudence. [55] The Rules do not specifically provide for exclusion of a party from questioning for discovery. However, it is well-recognizedthat the court has discretion to do so: Lambert at para 2.

This is consistent with the court’s broad jurisdiction in rule 1.4 and, likely, itsinherent jurisdiction to control court processes: 10378968 Canada Inc v GSV Futures Inc, 2022 ABCA 126 at para 15; Pyrrha DesignInc v Plum and Posey Inc, 2016 ABCA 12 at para 8; Judicature Act, RSA 2000, c-J-2,

section 8. [56] In Lambert, in a 2-1 decision, the Alberta Court of Appeal clarified the law in Alberta for excluding a party from discovery.The issue was the exclusion of defendant police officers from each other’s examinations for discovery in an unlawful arrest and assaultaction. The heart of the matter was an apprehension of “tailored testimony”: Lambert at para 26. At para 27, the majority stated that“absent cogent evidence pointing to a reasonable apprehension of misconduct, an order for exclusion cannot be supported”.

The majorityreviewed several cases from various jurisdictions involving applications to exclude parties from each other’s discovery. The majoritycited the purposes for examinations for discovery, namely enabling the examining party to know the case they have to meet, to procureadmissions to enable dispensing of formal proof or to destroy an opponent’s case, to facilitate settlement, pre-trial procedures and trials,to eliminate or narrow issues, and to avoid surprise at trial.

Then, the majority stated at para 30: [30] The presence of the parties at such examinations facilitates and promotes some of the enumerated objectives. That having beensaid, the object and purpose of an examination for discovery may, in some circumstances, be defeated unless an exclusion order is made.The onus is on the applicant seeking such an order to establish the factual underpinnings that would justify exclusion. There mustbe an evidentiary showing that persuades a chambers judge that an order for exclusion is necessary to ensure that the examination fordiscovery process will be meaningful.

Put another way, the chambers judge must be satisfied, on the evidence, that exclusion isnecessary for the fair and proper judicial conduct of the action.

That onus is discharged when the chambers judge is satisfied, onthe evidence, that there is a reasonable apprehension that the object and purpose of an examination for discovery will bedefeated unless the order goes. [Emphasis added] [57] The majority overturned the chambers judge’s decision to grant exclusion because there was insufficient evidence to concludethere was a reasonable apprehension that the object and purpose of the examination for discovery would be defeated. [58] Chief Justice Fraser dissented.

She noted that exclusion of witnesses from trial until they give evidence is routine in Alberta,and is done to avoid the unfairness associated with tailoring of evidence and reducing the effectiveness of cross-examination that can becaused if a witness hears other’s evidence before testifying. She stated that there was no reason why the same concern about shaping ortailoring should not apply to parties (as distinct from witnesses) giving evidence in examinations for discovery in an action in whichcredibility is a major factor: Lambert at para 53.

Ultimately, the Chief Justice disagreed that the exclusion order should be overturnedbecause there was sufficient evidence that credibility was a major issue in the action. [59] Lambert was subsequently followed or clarified in other Alberta cases involving exclusion of parties from discoveryquestioning. [60] In Krull v Allport-Niles, 1998 ABQB 580 (Master), the court dismissed an order excluding the defendant from discovery ofthe plaintiff because the plaintiff, who argued she was intimidated by her ex-boyfriend defendant, had failed to show a reasonableapprehension that the object or purpose of the discovery would be defeated. [61] In Kuefler v Barene Investments

(1988) Ltd, 1998 ABQB 799, Justice Lee noted, at para 8, that a party has a “fundamentalright to be present” at the examination and denied an exclusion application brought on the ground that the person being questioned feltintimidated by her husband (who was the corporate representative of the defendant). Justice Lee found, at para 14, that “the merepossibility of some form of prejudice is not sufficient to exclude a party to the action.

There must be clear evidence of a probability ofprejudice before an exclusion Order is warranted”. [62] In Lee v Oh, 2002 ABQB 253 an application for exclusion was dismissed due to a lack of meaningful evidence. In contrast, inSpeakman, Master Smart granted an exclusion order in another claim of assault by police officers, stating that “we have in this case isthat which was absent in Lambert, that is ‘cogent evidence’ of tailoring or harmonization of statements by these Defendants”.

InSpeakman, there were statements made by the police officers about the incident which, it was apparent on their face, were tailored. [63] In Hykawy v Hykawy, 2008 ABCA 324, the wife in a matrimonial property action applied to question the husband and hisparents separately (the parents were also parties to the action as recipients of disputed property). The Court of Appeal overturned thedecision of the chambers judge and ordered exclusion. In doing so, the unanimous Court confirmed and clarified Lambert, at paras 5-8(emphasis added): [5] The governing principles are said to be set out in Lambert v.

Lomore (1997) 1997 ABCA 398 , 212 A.R. 182. We havenot been asked to reconsider this decision. We do not find it necessary, on this evidentiary record, to invoke our reconsideration policy aswe are able to decide this appeal within the limitations of Lambert v. Lomore. Whether those limitations remain appropriate in light ofevolving national standards is an issue for another day. [6] We have concluded that the chambers judge mis-stated the legal test. The wife was not obliged to establish a “probability” ofprejudice. Lomore did not set this high a standard.

It was sufficient for the wife to persuade the chambers judge by evidence thatthere was a reasonable apprehension of prejudice. This was shown on the evidence before the chambers judge. The key ingredient inthe facts of Lomore was the absence of specific evidence that the various police defendants in that case would tailor their evidence. Themajority was not persuaded that the mere fact of “community of interest” between defendants justified exclusion.

However, here, it isclear that the version of the parents as given by their counsel does not match the version given under oath by their son, the husband.Some sort of explanation or reconciliation of the versions is needed. An attempt to discover and check out any such explanation orreconciliation offered by each parent could be impeded, if not destroyed, if both are present when the first is questioned.

[7] Further, here, the parents are named as defendants, not on the basis of a direct obligation to the wife but as alleged recipients ofmatrimonial property from their son, the husband. Therefore, the thinking that underlies this court’s decision in Lomore has limited forcein these circumstances. [8] Finally, it must always be remembered that the rationale for exclusion is rooted in the preservation of the integrity of thelegal process.

There can be no prejudice to honest defendants in not attending the examination for discovery of another defendant. [64] The conclusion Kuefler, at para 14, that there must be “clear evidence of a probability of prejudice”, cannot stand in light ofHykawy. [65] In Kosowan v Ferrier, 2017 ABQB 276, a Master granted an order excluding the plaintiff from being visible to one of thedefendants during questioning in a motor vehicle accident claim because the plaintiff had been associated with Hell’s Angels and theapplicant-defendant was scared of him.

Justice Shelley confirmed it is a well-established principle that parties have an “inherent right tobe present at Questioning”, but noted the court’s discretion to exclude. She relied on both Lambert and Hykawy, focussed on theconsequences to the questioning process in that case, and upheld the Master’s decision to limit the plaintiff’s attendance to being presentat the questioning by teleconference. [66] Based on the foregoing, the state the law in Alberta on applications to exclude a party from questioning for discovery can besummarized as follows.

Parties have a right to be present at questioning, subject to the court’s discretion to exclude. The onus is on theapplicant to establish an evidentiary foundation justifying exclusion. The focus is on the integrity of the legal process. The general test iswhether exclusion is necessary for the fair and proper judicial conduct of the action.

That test can be established when the chambersjudge is satisfied that there is a reasonable apprehension of misconduct or prejudice which, without an order, will defeat the object andpurpose of the discovery questioning. [67] In my view, the general test must be assessed based on the specific circumstances and evidence before the court, including theimpacts 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.

While cases from other provinces must beconsidered cautiously, they can also be of assistance in identifying factors courts have considered relevant in other cases. [68] Relevant circumstances in an application to exclude a party from discovery of another party can include the following,although some factors may be more important than others:

a) the prejudice or unfairness to the excluded party, including limiting their right to be present at all aspects of a case to which theyare a party: Lambert at para 9 citing Milgaard v Kujawa et al. (1995) 136 Sask R (QB); aff’d on appeal (1996) (SKCA), 137 Sask R 310 (CA); Kuefler at para 8; Foundation Group Mergers & Acquisitions Ltd v Norterra Inc, 1999 ABQB 442(Master) at para 10; Speakman at para 1; Heasley v Labelle, 2013 ONSC 2601 at para 20; Sissons v Olson, (BCCA), 1WWR (NS) 507 at pp 509-511;

b) whether co-parties have common interests or commonality of positions, although this is not enough on its own to justify exclusion:Lambert at paras 3, 9 and 28; Hykawy at para 6; St Peter v Deleavey, 2004 NBQB 364 at para 7; Besner v Her Majesty the Queen inRight of Ontario, 2011 ONSC 7335 (Master) at para 24, appeal dismissed 2012 ONSC 2258; Heasley at para 20; Lazar v TD GeneralInsurance Company, 2017 ONSC 1242 at para 39; Keedi et al v The Wawanesa Mutual Insurance Company et al, 2020 ONSC 904 atpara 26(f)(i);

c) whether the co-parties are represented by the same lawyer, including because an exclusion order may compel counsel to cease toact for the excluded client: Lambert at paras 3, 10 and 28; Speakman at para 11; Besner at para 24; Lazar at para 39; Keedi at para 26(f)(ii);

d) the degree to which credibility may be an important issue in the action: Lambert at paras 3, 9, 11, 18, 20, 22 and 36; Hykawy atpara 6; Speakman at para 8; Sissons; The Atlas Corporation v Andy Ingriselli, et al, 2010 ONSC 3678 at paras 10-12; Besner at para24; Lazar at para 43; Keedi at para 26(f)(iv); Dignazio et al. v. Weizman et al, 2005 MBQB 61 at paras 3 and 19, citing Chalmers vChalmers, (MBCA), 75 Man R (2d) 48; St Peter at para 7(b);

e) the risk of evidence being tailored or parroted: Lambert at para 3; Besner at para 24; Chafe v Baffin Run Limited, 2007 NLCA 53at paras 10-20; Lazar at para 45; Keedi at para 26(f)(v); Twin Creek Dairy Ltd v Young’s Equipment Inc, 2021 SKQB 57 at para 15; StPeter at para 7(d);

f) the potential overlap or duplication of evidence of the party being questioned and the party sought to be excluded: Lambert at para9; Besner at para 24; Lazar at para 39; Keedi at para 26(f)(iii);

g) potential prejudice or unfairness to the party seeking exclusion, or the witness, if the order is not granted. For example, whether aparty or witness is likely to be intimidated or unable to give evidence during the questioning: Besner at para 24; Kosowan at para 38;Krull; Heasley at para 20; and

h) whether the proceedings are likely to be disturbed or disrupted: Heasley at para 20; Besner at para 24; Lambert at para 5, citingSissons. [69] I now compare these principles to the test in Alberta for excluding a party from a trial. 4. Excluding Parties from Trial [70] Upon the trial of an action, “all parties clearly have of necessity the right to be present”: Fraser-Tabak v Tabak, 2016 ABCA79 at footnote 27, citing Sandgathe v Canadian Export Gas Ltd, (ABCA), 19 WWR (NS) 238.

[71] A party needs to attend trial because the trial represents the final resolution of the parties’ rights, it is held in the presence ofthe trial judge as the decision-maker, and the party must be present to instruct counsel.

Accordingly, it is generally understood to bemore difficult to obtain an order excluding a party from trial that it is from discoveries – exceptional circumstances must exist: see, forexample, Liu Estate v Chau, (ONCA), 69 OR (3d) 756 at paras 21-24. [72] In Alberta, under previous rule 247, the court was specifically permitted to exclude a witness from trial, whether a party ornot: Alberta Rules of Court, Alta Reg 390/1968, rule 247.

However, rule 8.12 restricted the court’s jurisdiction to exclude a party fromtrial, and brought Alberta more consistent with the Ontario rules and the rationale in Liu Estate. [73] Rule 8.12 provides: Exclusion of witnesses 8.12(1) Subject to subrule (2), the judge may exclude a witness from the courtroom, other than a party who may be called as a witness,until the witness is called to give evidence.

(2) A witness whose presence is essential to instruct a lawyer in a trial may not be excluded from the courtroom, but the judge mayrequire that witness to give evidence before any other witnesses are called.

(3) Nothing in this rule prevents the judge from excluding from the courtroom any person who interferes with the trial. [74] Accordingly, rule 8.12(1) does not allow a court to exclude a party from trial solely because he or she will testify: Fraser-Tabak v Tabak, 2016 ABCA 79 at footnote 27. Under rule 8.12, the court may only exclude a party from the courtroom if they interferewith the trial process: rule 8.12(e); Fraser-Tabak at footnote 27, citing Sissons. 5.

Excluding Parties from Questioning on Affidavits under Rule 6.7 [75] As with questioning for discovery, there is no specific rule in the Rules that provides for exclusion of a party from questioningon affidavits under rule 6.7. The parties appear to agree that the court has discretion to order exclusion, but disagree on applicable testand whether the test is met in this case. [76] Applications to exclude a party from questioning on affidavits appear to be relatively rare. The cases provided by the partiesonly disclosed a few such reported cases, none of which are from Alberta.

A brief review of some of the cases is appropriate. [77] In Pam v Gale, [1950] 2 WWR 802 (MBKB), (which was cited in Sissons, and which in turn was discussedin Lambert), co-defendants filed a joint affidavit in opposition to a plaintiff’s

summary judgment application. The plaintiff sought andobtained an order excluding one defendant from the cross-examination of the other defendant on the joint affidavit. At that time,Manitoba had a rule that allowed a trial judge to exclude witnesses from trial, even if they were parties.

In Pam, the court held that thequestion of deciding whether to exclude a party from cross-examination on affidavits should, in that case, be addressed based on thesame principles as excluding a party from trial. [78] In Karamanokian v Assad, [1992] OJ No 2284 (Ont Gen Div), the applicant applied for an order terminating a partnershipand directing the respondents to provide an accounting for partnership profits. The respondents each filed a response affidavit, and theapplicant sought an order excluding each of the respondents from the cross-examination of the other respondents.

The court dismissedthe application, relying on cases involving discovery exclusion applications. [79] In Smith v Rotstein, 1998 CarswellOnt 4773 (Ont Gen Div), a party being cross-examined on her affidavit sought to have theopposite party (her brother) excluded because he intimidated her and because of a concern the brother would tailor his evidence.

Thecourt dismissed the application and, in doing so, applied the legal principles associated with discovery exclusion applications. [80] In Changoo v Changoo, 1999 CarswellOnt 831 (which was cited in the Herzuk case relied on by the Defendants), theplaintiff filed an action against her husband and others related to the transfer of properties by the husband to the other defendants. Theplaintiff obtained an order for a certificate of pending litigation and the defendants applied for an order discharging it and they filedaffidavits in support.

The plaintiff sought to question one of the defendants in the absence of the others. The court cited Lambert as aleading case, at para 3: 3. Without reviewing the authorities in detail — most of them are described in the reasons delivered in the Court of Appeal ofAlberta in Lambert v. Lomore (1997), 1997 ABCA 398 , 57 Alta. L.R. (3d) 110 (Alta.

C.A.) — there is, I believe, no disputethat each of the defendants has a prima facie right to be present when the others are cross-examined on their affidavits and that the onusis on the plaintiff to show cause why, in the exercise of its discretion, the court should make an order for their exclusion. The question iswhether the plaintiff has discharged this burden on the facts before me. [81] The court in Changoo struggled with the distinctions between cross-examination on affidavits, viva voce cross-examination attrial, and discovery.

It is difficult to discern whether the court applied a different test for exclusion from questioning on affidavits thanfor exclusion from discovery or trial. However, the court noted one obvious distinction between cross-examination on affidavits, versusdiscoveries and cross-examination at trial, at para 10 (emphasis added): 10. There is, of course, one obvious distinction between cross-examination on an affidavit on a motion or application on the one hand,and an examination for discovery or examinations at trial on the other.

In the first case, the evidence in chief will, in effect, have beengiven in the affidavit and I am not aware that it has ever been suggested that this could, or should, be withheld from anotherparty. The suggestion is, if I understand it correctly, that the latter could be excluded only from the cross-examination. I believethis could be justified only in very exceptional circumstances. [82] Ultimately, after citing numerous cases involving discovery exclusion applications, the court in Changoo dismissed the

exclusion application on the basis that the evidence of the possibility of tailoring evidence was not sufficient to discharge the applicant’sburden. [83] In 1264237 Ontario Limited v 1264240 Ontario Limited, (ONSC), 88 OR (3d) 139 [126 Ontario], anapplicant seeking relief from oppression under the Ontario Business Corporations Act, RSO 1990, c B-16 sought that one of therespondents be excluded from the cross-examination on affidavit of the first respondent. The court noted the competing principles atplay.

First, that a party has an inherent right to be present at the trial, and that right extends to other proceedings that are part of the trialprocess, including examinations: 126 Ontario at para 7, citing Baywood Paper Products Ltd v Paymaster Cheque-Writers (Canada) Ltd(1986), (ON SC), 57 O.R. (2d) 229 and Lamb v Percival (1992), (ON SC), 7 OR (3d) 775 (GenDiv).

Second, that justice may not be served if one party is permitted to hear the evidence of another party, because that party may tailorthe evidence given on his own subsequent examination: 126 Ontario at para 8, citing ICC International Computer Consulting &Leasing Ltd v ICC Internationale Computer and Consulting GmbH (1988), (ON SC), 66 OR (2d) 187 at p 191. [84] In support of the general principles, the court in 126 Ontario cited discovery exclusion cases.

However, in dismissing theapplication, the court also distinguished those types of cases from one involving a questioning on an affidavit at paras 15-16: [15] Lastly, in my view, for the purpose of motions of this nature there is a difference between examinations for discovery and cross-examinations on affidavits. Regarding cross- examinations, prior to any party being examined, all of the parties will have deliveredaffidavits that set out, under oath, their respective positions and all relevant facts.

On the other hand, parties who are examined fordiscovery will, in most cases, not have given a sworn statement of the facts prior to their examinations. [16] Therefore, an affiant who might otherwise be tempted to tailor his evidence after observing the cross-examination of anotherparty may not be able to do so because that affiant will have already attested to a certain set of facts. Thus, the mischief that might becaused by one party observing another party's examination is less likely to occur where the examination in question is a cross-examination on an affidavit rather than an examination for discovery.

This factor favours John and Don in this motion. [85] In Popov v Jones, 2010 CarswellOnt 10677, Master Dash dismissed an application to exclude the plaintiffs from questioningon the affidavit of the defendants due to the defendant’s fear of the plaintiff. Master Dash noted the “inherent right to be present at alllitigation events” and held that the defendant had not discharged his onus to show that an exclusion was necessary to secure the ends ofjustice.

There was no “realistic or substantial objective evidence” to cause the defendant to fear for his safety. [86] In Herzuk v Kleiman, 2018 ONSC 2208, the plaintiffs filed a

summary judgment motion for wrongful dismissal against thedefendant. Both plaintiffs filed affidavits and they sought a declaration that they were entitled to attend each other’s cross-examinationson their affidavits. The court distinguished the application from Lazar (a leading Ontario case on discovery exclusion applications), onthe basis that cross-examination on affidavits was different that examinations for discovery. The court stated that the test for exclusion oncross-examination was summarized in Heasley (even though Heasley was a discovery exclusion case).

In Herzuk, the court found thatthe defendant had not provided sufficient evidence demonstrating “a real risk that the Plaintiffs will tailor their evidence or engage inother conduct, including parroting, intimidation or disturbance of the cross-examinations leading to unfairness such that the Plaintiff’sfundamental right to be present at each other’s cross-examination should be interfered with”. [87] It is difficult to identify unifying principles or approach in these cases from other provinces.

What they illustrate is that thelegal principles from applications to exclude parties from discoveries are generally applied to applications to exclude parties from cross-examinations on affidavits, but with appropriate modifications to recognize that discoveries and questioning on affidavits are differentprocesses with different purposes and consequences.

These cases also reflect that, in some situations, it will be more difficult to excludea party from questioning on an affidavit than questioning for discovery. [88] I agree that there are some important differences between questioning for discovery and questioning on affidavits that arerelevant to the appropriate exclusion framework for each process. [89] First,

Part 5 questioning for discovery are private and are subject to the implied undertaking under rule 5.33 and at commonlaw: MBH v CKI, 2023 ABKB 284 at paras 69-71.

Transcripts are not filed unless the questioning party uses them, or selected portionsof them, as a “read-in” in support of an application or proceeding or at trial against a party adverse in interest: rule 5.31; rule 6.11(c);Kudzin v APM Construction Services Inc, 2023 ABKB 425 at paras 34 and 40-48. [90] On the other hand, questionings on affidavits are inherently more public, because the questioning party is obligated to file thetranscript with the court: rule 6.7(b); McDonald v Sproule Management GP Limited, 2023 ABKB 587 at paras 20-42. [91] In order to make an exclusion from a questioning on an affidavit effective, a party would likely also have to apply for arestricted court access order under rules 6.28-6.36, or perhaps for relief in the nature of an injunction against a party to prevent them fromreviewing publicly available documents.

If an applicant were to seek a sealing of the questioning transcript on the file more generally,this would run counter to the strong public interest in the open-court principle: LDS v SCA, 2021 ABCA 429 at para 10; Sherman Estatev Donovan, 2021 SCC 25 at para 38.

If the applicant sought to somehow restrict only the excluded party’s access to the transcript, thiswould put the excluded party in the arguably unfair position, at least for a period of time, of evidence related to the action being availableto some parties and the public, but not that party. [92] Second, as noted in Lambert at para 29, discoveries have multiple purposes, only one of which relates to eventually puttingevidence before the court (procuring admissions to enable one to dispense with formal proof).

The purposes of questioning on affidavitsis to put evidence before the court, to test the evidence of the affiant, to undermine the credibility or reliability of the affidavit evidence,or to gain admissions in support of the questioner’s case on the merits of the application: College Brand Clothes Company v Brown, (ABCA) at p 366; Clark v Canadian Imperial Bank of Commerce, 1999 ABQB 181 at para 14; Priority 1 Security Inc v Phasys Limited, 2006 ABQB 332 at para 2; Bond Street Properties Inc v Alberta Permit Pro, 2010 ABQB416 at para 47; Heasley at para 16.

These purposes more resemble a trial process. [93] Third, the reasonable apprehension or risk of evidence tailoring can be mitigated in questioning on affidavits where the

affiants have already sworn or affirmed their evidence. As noted in Changoo , allowing a party to see the affidavit but then excluding them from attending the questioning on that affidavit is akin to excluding a party from only part of that witness’ evidence (at least temporarily). [ 94 ] Fourth, the scope of questioning for discoveries is usually different than the scope of questioning on affidavits. During

Part 5 questioning for discovery a person is only required to answer “relevant and material” questions and questions for which an objection has not been upheld: rule 5.25. “Relevant and material” questions are those that could reasonably be expected to (

a) significantly help determine one or more of the issues raised in the pleadings, or (

b) to ascertain evidence that could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings: rule 5.2. Courts are not to be overly strict in assessing relevance and materiality; relevance must be determined with respect to the issues set out in the pleadings; and materiality, while also dependent on the issues, is more a matter of proof: Goold v Allen , 2023 ABKB 66 at paras 13-16 and cases cited therein.

Therefore, the substantive merits of all the issues in the underlying action are on the table in discovery questioning. [ 95 ] On the other hand, the scope of questioning on an affidavit is limited to questions that are relevant and material to the issues raised in the underlying application (not limited to the four corners of the affidavit): Real Estate Council of Alberta v Moser , 2019 ABQB 106 at para 13 ; Down Chemical Canada ULC v Shell Chemicals Canada Ltd , 2008 ABQB 671 at para 7 ; Bond Street at para 45; Colortech Painting and Decorating Ltd v Toh , 2000 ABQB 814 at para 26 ; Kostic v Scott Venturo Rudakoff LLP , 2022 ABQB 188 at para 25 (f).

Applications may involve the substantive merits of the action, only procedural matters, or a combination of both (as is the case here). [ 96 ] Fifth, questioning for discovery is part of the pre-trial discovery is not a final court process. Applications, on the other hand, may be interlocutory or final. A final application, such as originating applications or

summary judgment applications made within an action commenced by Statement of Claim, can be final and, therefore, more akin to trials. Several of the cases noted above illustrate the reluctance of courts to exclude a party from questioning on affidavit where the application may result in final relief: 126 Ontario ; Pam , Changoo ; Herzuk ; Karamanokian . [ 97 ] I agree with the Defendants and the Applications Judge that, given the differences between discovery and questioning on affidavits, the Lambert/ Hykawy cases cannot be directly applied to Ms. Carbone’s application as she argues.

However, I respectfully disagree with the Applications Judge to the extent his Decision stands for the proposition that the principles for exclusion from trial under rule 8.12 can or should be directly applied to applications to exclude a party from affidavit questioning. [ 98 ] In my view, a more nuanced approach is required. An appropriate approach to an application to exclude a party from questioning on affidavits is to apply the principles set out in Lambert and Hykawy by analogy, but modified for the unique nature of a questioning on affidavit. Therefore, the applicable principles are:

a) parties have a right to be present at questioning on an affidavit under rule 6.7, subject to the court’s discretion to exclude. The right to be present is particularly strong where the underlying relief involves an application for final substantive relief;

b) the onus is on the applicant to establish an evidentiary foundation justifying exclusion;

c) the focus 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; and

d) one way the general test can be established is if the chambers judge is satisfied that there is a reasonable apprehension of misconduct or prejudice which, without an order, will defeat the object and purposes of questioning on affidavit. [ 99 ] Relevant factors in determining whether the applicant has discharged its burden include those previously mentioned above at paras [67]-[68] in respect of questioning for discovery, modified as necessary to the application/questioning on affidavit process. However, additional factors in this context of questioning on affidavits include:

a) the nature of the underlying application. If the application involves final relief going to the substantive merits of the action, it is more akin to trial and is a strong factor against exclusion of a party. If the application is interlocutory or procedural, the case to resist exclusion may be weaker;

b) the degree to which the apprehension or risk of evidence tailoring or parroting is mitigated by the fact that the affiants have already attested to facts; and

c) whether exclusion will actually address the concerned mischief. The stage of the underlying action at the time of the application is important because it may affect whether the benefits of exclusion will have any practical effect. For example, if the evidence of the parties has already been fully explored in questioning for discovery or previous questioning on affidavits, without any restrictions on the availability or use of those transcripts, there may be little achieved through exclusion. [ 100 ] I now apply these principles to Ms. Carbone’s application. 6. Application to Ms.

Carbone’s Exclusion Application [ 101 ] I have considered the test and the factors outlined above. This is not a case involving intimidation that would affect the ability of the witnesses to give evidence, or where the affiants would otherwise disturb the proceedings. Ms. Carbone’s concern is about tailoring of evidence. In that context, I specifically address some of the key factors below. a. Nature of the Application [ 102 ] The Exclusion Application is in the context of the SFC Applications, which are governed by

Part 4, Division 4 of the Rules .

[ 103 ] Whether to grant security for costs is a discretionary decision: Shtaif v Midland Resources Holding Limited , 2023 ABCA 319 . The onus is on the applicant: Lay v Lay , 2023 ABCA 260 at para 11 ; Aski Construction Ltd v Markos , 2017 ABC 341 at para 8. [ 104 ] Security for costs involves a two-step process.

First, the criteria in rule 4.22 must be considered and then the court must ask whether it is just and reasonable to grant security for costs: Attila Dogan Construction v AMEC Americas Limited , 2011 ABQB 175 at paras 24-25 ; Song v 2083878 Alberta Ltd , 2023 ABKB 166 at para 53 . [ 105 ] Rule 4.22 provides: 4.22 The Court may order a party to provide security for payment of a costs award if the Court considers it just and reasonable to do so, taking into account all of the following: (

a) whether it is likely the applicant for the order will be able to enforce an order or judgment against assets in Alberta; (

b) the ability of the respondent to the application to pay the costs award; (

c) the merits of the action in which the application is filed; (

d) whether an order to give security for payment of a costs award would unduly prejudice the respondent’s ability to continue the action; (

e) any other matter the Court considers appropriate. [ 106 ] Rule 4.22(

c) expressly requires the court to take into account the merits of the action, although it is acknowledged that this may be difficult on an interlocutory application: 1251165 Alberta Ltd v Wells Fargo Equipment Company Ltd , 2013 ABQB 533 . The court’s assessment of the merits will be more rigorous when the application is brought later in the proceedings and less rigorous if brought early in the action: Bechir v Gowling Lafleur Henderson LLP , 2017 ABQB 214 at para 13 .

The consensus is that the merits of the case “are relatively unimportant for applications brought early in the proceedings”: Becher at paras 13-15; Provalcid Inc v Graff , 2014 ABQB 453 at paras 59 and 97 ; Attila Dogan at para 17; Xpress Lube & Car Wash Ltd v Gill, 2011 ABQB 457 at para 11 . [ 107 ] In this case, the SFC Applications have been brought early in the action.

The considerations in rule 4.22 other than 4.22(c), which have nothing to do with the merits of the action, will likely be more important than an assessment of the strength of the parties’ respective cases on the merits. [ 108 ] A security for costs application is not a final order, although it has the potential to end the case: Toronto-Dominion Bank v Suitel Canada Executive Suites , 2011 ABQB 519 at para 35 ; Law Society of Alberta v Stinchcombe , 2009 ABQB 27 at para 41 . However, in this case the SFC Applications only have the potential to end the case in favour of the Defendants, not against them.

The Defendants rights are, therefore, not in jeopardy the same way they would be at trial or in a final application such as

summary judgment or in an originating application. b. Stage of the Action and the State of the Evidence [ 109 ] The Defendants abandoned their mootness arguments on the Appeal, and I make no finding on mootness. But that doesn’t mean the practical realities of the current situation are ignored. The events disclosed in the evidence, which have occurred since the Applications Judge’s Decision, have been relied on by the parties in their argument, are relevant and material in my opinion, and can be considered on the Appeal pursuant to rule 6.14(3). [ 110 ] Because Ms.

Carbone did not seek to vary the procedural orders to defer questioning of the affiants until this Appeal was determined, questioning on their affidavits has already taken place and the transcripts have been filed on the public court record. The record indicates Makar and Suleman attended Nanji’s questioning before they were questioned. Further, those transcripts reveal that Ms. Carbone chose to question, or attempt to question, the affiants on the substantive merits of the action. [ 111 ] Therefore, while it is possible there will be further questioning on the affidavits if Ms.

Carbone’s attempt to compel answers to objected questions or undertakings refusals is successful, there is reduced utility in excluding the affiants from each other’s questioning at his stage. In fact, as noted above, further applications for restricted court access, with service on the court clerk for the purposes of giving notice of the application to the media as required by rule 6.32, or enjoining the affiants from reviewing transcripts, would likely be required to make any exclusion effective. No such applications are before me. c. Evidence Tailoring and Credibility [ 112 ] Ms.

Carbone argues that she has provided cogent evidence that the Defendants have already engaged in evidence tailoring. She points to the fact that their affidavits in support of the SFC Applications are almost identically worded in many ways. [ 113 ] The Defendants have a commonality of interests in defending the action and in succeeding in their SFC Applications. That alone is not enough. I disagree with Ms.

Carbone’s position that Applications Judge Park should have ordered, or that I should now order, exclusion of the affiants due to concerns of evidence tailoring or harmonization, for several reasons. [ 114 ] First, the fact that legal counsel prepares an affidavit for a client, or structures the affidavit similar to other affidavits in a matter, or works cooperatively with co-defendant counsel, is not evidence of a reasonable apprehension of evidence tailoring when the affiant is questioned, without more.

Whether affidavits reflect evidence tailoring by affiants will depend on the content of the evidence in the context of the issues in the application and action, including whether it relates to matters that go the substantive merits of the action or matters of credibility. When the evidence is not about the merits or matters of credibility, then a duplicated affidavit structure, or even the sharing of public searches or other evidence, can be efficient and uncontroversial. Ultimately, an affiant reviews an affidavit and

swears to or affirms its truth. [ 115 ] Second, in this case, the evidence that is similarly worded relates to Ms. Carbone’s assets and liabilities, which is relevant to the SFC Application but not the substantive merits of the action. Further, that evidence is outside the direct personal knowledge of the affiants. It is common practice for legal counsel to assist clients in gathering publicly available information through appropriate searches from courts, personal property registries, land titles offices, and the like.

Similarly-worded or structured affidavits about such public matters are not meaningful evidence of tailoring of evidence or a reasonable apprehension of evidence tailoring. This case is distinguishable from Speakman , where the police officers had previously given statements about the incident at issue in the action and those statements, on their face, illustrated tailoring of evidence. [ 116 ] Third, with respect to the substantive merits of the action, which is relevant to the SFC Applications, the affiants have not duplicated the substance of their evidence.

Rather, each affiant stated their belief that they have a good defence to the action with reference to their filed Statement of Defence. The approach of referring to a pleading in an affidavit for the basis of one’s belief about the merits of a defence adds nothing to the evidentiary record. Here, because the affiants did not include any evidence about the merits of their defence in their affidavits, the possible mitigation of the apprehension or risk of tailoring evidence that might have existed, had they set out their evidence on the merits in their affidavits, is not present.

However, to be clear, the failure to provide evidence on the merits in an early-filed security for costs application is not, on its own, evidence of a reasonable apprehension, risk or likelihood that the affiants will tailor their evidence. [ 117 ] Fourth, there are no credibility issues as between the Defendants and Ms. Carbone with respect to the areas in which the affiant’s evidence is similar, namely Ms. Carbone’s assets and liabilities and whether the Defendants would be able to enforce a judgment or order against her against assets in Alberta.

As noted, that is not information over which the affiants have direct first-hand knowledge or involvement. [ 118 ] Fifth, based on the pleadings, and the questioning that has taken place already, there will likely be some overlap in the affiants’ evidence about some aspects of the substantive merits of action which may involve credibility issues. However, the overlap is not extensive. Dawes, Nanji and Makar were all involved with and present during the March 4, 2021 surgical procedure. However, they were not each present at each other’s interactions with Ms. Carbone.

For example, in questioning, Nanji testified about his conversation with Ms. Carbone prior to the surgery and there is no evidence Dawes was present. He also testified that he was not involved with any discussions Ms. Carbone had with Dawes prior to the surgery. There is little, if any, evidence that any of the Defendants, other than Dawes, was involved in the decision to use a general anesthetic. After the procedure, Ms.

Carbone’s dealings with the affiants were separate, only involved some of them, or were in writing. [ 119 ] Sixth, based on the questioning on affidavits that has already occurred, and the questions that the Defendants’ counsel permitted them to answer, there is no evidence of tailoring or parroting by the affiants. [ 120 ] On balance, having considered the parties’ submissions and the record, I am not satisfied that there is a reasonable apprehension of evidence tailoring by the Defendants. d.

Impact on Defendants [ 121 ] In addition to their right to participate in these proceedings, and to have their matter dealt with in open court, the Defendants are entitled to choose their legal counsel. Dawes and Nanji are both represented by Ms. Viney, and Makar and SCI are represented by Ms. Curcio-Lister. As noted above, the exclusion order sought by Ms. Carbone may have the practical effect of requiring some of the parties to obtain new counsel because of counsels’ duties to joint clients.

This would increase costs and potentially preclude a party from using the counsel of their choice for at least part of the proceeding. 7. Conclusion re Exclusion Application [ 122 ] On balance, I find that Ms. Carbone has not discharged her onus, on the evidence before me, to establish a reasonable apprehension of evidence tailoring by the Defendants on the SFC Applications. I find that there is no reasonable apprehension of misconduct or prejudice that, without an order, would defeat the object and purposes of questioning on the affidavits, or otherwise undermine the fairness of the legal process.

Further, and in any event, in the circumstances of this matter an order is not necessary for the fair and proper judicial conduct of the action. [ 123 ] Ms. Carbone’s appeal of the Applications Judge’s dismissal of the Exclusion Application is dismissed. B. Should the Court order that Dawes is Required to Attend for Questioning on his Affidavit? [ 124 ] At the time of the appearance before Applications Judge Park, the date scheduled for the Dawes questioning on his affidavit had passed and Ms.

Carbone did not attend because of her intention to file the Exclusion Application as apparently permitted by Applications Judge Mason. In the circumstances, given the correspondence from Dawes’ counsel, it was reasonable for Ms. Carbone to seek confirmation that Dawes would attend a future questioning on his affidavit. Had Dawes, before me, not been willing to attend for questioning in these circumstances I would have ordered him to do so. [ 125 ] However, this issue has been overtaken by later events. Dawes’ questioning was ultimately rescheduled without the need for an order.

There is no indication Dawes will not attend questioning as required in this matter. There is no practical reason for the Court to grant an order for Dawes to attend questioning on his affidavit now and I decline to do so. [ 126 ] For these reasons, the Appeal of the refusal to order Dawes to attend questioning is denied.

C. Should the Court Order Ms. Carbone’s Costs Associated with the Dawes’ Questioning? [ 127 ] Ms. Carbone applied to be paid any premium costs associated with the fact that Dawes’ questioning was scheduled in the evening which led to a premium charge by the court reporter. Applications Judge Park dismissed this application.

From the record, it appears that the evening questioning was required due to the time deadlines to complete questioning and the fact Dawes’ was booked months in advance during regular business hours. [ 128 ] Parties to litigation, particularly those that have filed affidavits, are expected to make time during regular business hours to make themselves available to be questioned. It is not usually an answer to say that the affiant is busy working for weeks or months, or can only attend during non-business hours.

A party represented by legal counsel faced with such a response may very well serve a notice of appointment for questioning pursuant to rules 6.15-6.17 and 6.7, which only must be served 5 days or more before the appointment date and the setting of a “reasonable date, time and place” for the questioning, as chosen by the questioning party: rule 6.16(1). If the parties disagree on what is reasonable, the court can resolve that dispute: rule 6.16(3). [ 129 ] Dawes may have been busy, but he is no different than any other working litigant.

He filed an affidavit and applied for his security for costs application to be heard expeditiously. Common courtesy and some thoughtful consideration to the extra costs of questioning incurred by a party trying to accommodate another party’s

schedule would be reasonable and consistent with the foundational rules, and in particular rule 1.2(3)(a). Parties should discuss these types of issues before the questioning, not afterward. In any event, not every issue that arises in litigation warrants taking a hard position, especially when the costs of doing so outweigh the issue involved.

Parties are expected to work together reasonably, whether or not they are represented by counsel. [ 130 ] In the circumstances, ultimately, in the absence of an agreement on this issue, in my view it was and is premature to decide this issue before Dawes’ security for costs application is completed. I allow the Appeal on this issue and direct that costs related the premium paid to accommodate Dawes’

schedule be dealt with by the applications judge hearing the SFC Applications. [ 131 ] Ms. Carbone also sought costs associated with court reporter cancellation fees related to her not attending or cancelling her questioning of Dawes on September 18, 2023. Applications Judge Park denied that application. Again, this appears to be an issue in the realm of $100 or so. In my view, this issue is also better dealt with as part of the SFC Applications.

I allow the Appeal on this issue and direct that costs related the court reporter fees associated with the cancellation of the September 18, 2023 Dawes questioning be dealt with by the applications judge hearing the SFC Applications. VI. Conclusion [ 132 ] In conclusion:

a) the Appeal in respect of the Exclusion Application is dismissed;

b) the Appeal in respect of the refusal to order Dawes to be questioned is dismissed;

c) the Appeal in respect of the costs incurred relating to the Dawes questioning is granted and these issues are directed to be dealt with by the Applications Judge hearing the SFC Applications. [ 133 ] Based on the foregoing, Application Judge Park’s cost award is also set aside.

If necessary, costs of the application before him shall be settled or resolved together with the Appeal costs (including attendances in civil chambers in relation to the Appeal). [ 134 ] The parties are directed to attempt to resolve the question of the costs of the Appeal and the costs of the attendance before Applications Judge Park, and are strongly urged reach agreement. If the parties cannot reach agreement within 30 days of this decision, then the following procedure shall apply:

a) within 30 days of this decision, the Defendants shall file and serve on Ms. Carbone and submit to my office a written cost submission setting out their costs position;

b) within 45 days of this decision, Ms. Carbone shall file and serve on the Defendants and submit to my office a written costs submission setting out her costs position;

c) each party’s costs submission will be a maximum of 2 pages (excepting attachments, including authorities, draft proposed bill of costs, or costs

summary), single spaced in letter format, and shall provide: (

i) their position with respect to the factors set out in rule 10.33; (ii) any formal offer under the Rules or other offer they wish considered; (iii) a draft proposed bill of costs pursuant to

Schedule C; and (iv) a

summary of their actual reasonable and proper costs that the party incurred in respect of the appeal and the action. [ 135 ] If no submissions are received pursuant to this direction, there shall be no order as to costs of the Appeal, the September 19 Application, or the civil chambers attendances relating to the Appeal. Heard on the 11 th day of December, 2023.

Dated at the City of Calgary, Alberta this 20 th day of December, 2023. M.A. Marion J.C.K.B.A. Appearances: Angela Carbone Self-Represented Litigant Christine Viney for Dr. Jeffrey C Dawes, Jeffrey C Dawes Professional Corporation, Jeffrey C Dawes MD Plastic Surgery and Dr Mohamed Nanji Debra Curcio-Lister for Surgical Centres Inc, Elisha Marie Makar, Elisha Makar, also Known as E Doyle