The plaintiffs, a married couple, sued their insurer for the balance of a contents claim after their house was destroyed by fire.
The insurer appealed an interlocutory order that permitted the plaintiffs to attend each other's examinations for discovery.
The Divisional Court allowed the appeal, finding that the motion judge erred in applying a strict test from a Court of Appeal decision dealing with the exclusion of witnesses at trial.
The Court held that for discoveries, the onus is on the party seeking exclusion to demonstrate it is necessary to meet the ends of justice.
Given that the plaintiffs had identical interests, shared counsel, and their credibility was the central issue, there was a risk of tailoring evidence.
The Court ordered the plaintiffs to be examined individually.
