Superior Court of Justice - Ontario

COURT FILE NO.: 10-CV-403672

MOTION HEARD: May 24, 2012

RE: 10-CV-403672 DiMartile et al. v. GMCL

BEFORE: Master Joan Haberman

COUNSEL:
Fric. L. for the moving party
Ashton, C. for the responding party

REASONS

Master Haberman:

[ 1 ] These four plaintiffs have commenced suit against GMCL following changes made to their pension plan. They assert their claims in one action, and one counsel acts for them all.

[ 2 ] The action has now reached the oral discovery stage and an issue has arisen regarding examinations for discovery of the plaintiffs. GMCL wishes to examine each to the exclusion of the others. GMCL also wants to ensure that none of the plaintiffs is privy to the questions asked of or answers given by the others until after that plaintiff has been examined.

[ 3 ] After reviewing the evidence and hearing the submissions of counsel, I accepted GMCL’s position and ordered that they are entitled to the relief sought. I indicated brief reasons would follow. These are my reasons.

The matters in issue as defined by the pleadings

[ 4 ] The action was commenced in May 2010, initially by DiMartile and Douglas. The claim was amended in December 2010 to add two additional plaintiffs, Fallow and Denoncourt.

[ 5 ] Each plaintiff claims a sum for damages, ranging from $91,800 to $348,405.03. In the alternative, they each seek monthly payments from GMCL pursuant to the Canadian Executive Retirement Plan (“CERP”).

[ 6 ] Each of the four plaintiffs was employed by GMCL in what can be described as a high ranking executive position. Before retiring, DMartile was the general director of Human Resource Management for GMCL. Cameron was the defendant’s General Director of Labour Relations. Fallow held the position of Assistant Manager of a GM plant in St. Petersburg and Denoncourt was the Director of Human Resources at the GMCL plant in St. Catherine’s.

[ 7 ] Each of the four plaintiffs accepted an early retirement package offered by GMCL, each claiming that their decision to do so when they did was based on their belief that they would receive “full CERP benefits”.

[ 8 ] The plaintiffs acknowledge that these packages were made available in the context of difficult economic times for GMCL, and during a period when efforts were being made by the defendant to avoid filing for bankruptcy.

[ 9 ] Each plaintiff then claims that CERP was modified in 2009 to their detriment.

[ 10 ] What is CERP? As described in the statement of claim, the program (initially called SCERP) was designed to provide senior GMCL executives with monthly retirement benefits over and above those provided by the GMCL regular pension. The statement of defence states that this was a voluntary post retirement benefit program created by GMCL in the early 1990’s and made available only to certain GMCL executive employees. According to a July 15, 1992 memo from GMCL to personnel directors, the plan was “unfunded” (no contributions were made to it by the affected employees).

[ 11 ] All four plaintiffs share a common ground – they all assert that they relied on what they expected would be their CERP benefits when making decisions about their future; that they had no inkling that GMCL could or would eliminate CERP benefits after their retirement and that they were therefore surprised when the defendant did so. They each claim that this change of circumstance has harmed them as their post-retirement income is now less than expected.

[ 12 ] It is important to note, in the context of the submissions made by the plaintiffs on this motion that their claims are not advanced as a breach of contract. In fact, the word “contract” does not appear in their pleading. There is also no reference to the existence of an “agreement.” Instead, the focus seems to be on representations that were made and relied on by the four to their detriment. The plaintiffs also plead that GMCL failed to act in good faith.

[ 13 ] The defence position highlights the information that was provided to all GMCL employees throughout the time SCERP and CERP were in place, to the effect that both programs could be modified or terminated at any time. While the plaintiffs quote from a memo dated December 13, 1991 from George Peapples which introduced the program, GMCL adds that there was an additional paragraph in the memo omitted by the plaintiffs in their reference which made it clear that meetings would be held to further explain the program, and employees were strongly encouraged to attend.

[ 14 ] GMCL pleads that information was imparted to employees at those meetings, through the GMCL intranet, as well as through various documents distributed from time to time, that made it clear that GMCL did not guarantee payments through the program but that it reserved its right to alter or cancel the program at any time. This is an important point to note, as the plaintiffs take the position that this is essentially a document case. GMCL maintains that the documents were not simply sent out without explanation – at all stages, meetings were held to ensure everyone understood what the documents were intended to convey.

[ 15 ] GMCL also pleads that, in view of their respective employment positions, each of the four plaintiffs was involved in actually communicating to other employees how SCERP and then CERP worked and the fact that they could be terminated at any time. It is specifically pleaded that each of the four knew when they retired that their payments post-retirement remained discretionary, such that benefits could be reduced or stopped even after payment had begun.

[ 16 ] In their reply, the plaintiffs effectively allege that everything they were told about the program was replaced as a result of changes to it made in 2007 and onwards. They say that the new CERP provided for early vesting and referred to the benefits from the earlier SCERP program as having been frozen. Each of the four plaintiffs asserts they are the beneficiaries of the new replacement program and that, further, the early retirement packages they were offered and accepted also prevented further modification by GMCL.

[ 17 ] Finally, the plaintiffs deny that they are prevented from suing in the face of releases three of them signed upon acceptance of their respective retirement package, on the basis that these releases have no application to this fact situation.

[ 18 ] Accordingly, what is clear from a review of the pleadings is that the case raises the following issues:

• What each plaintiff understood at the time original SCERP was implemented regarding whether GMCL could modify or eliminate it;
• What that understanding is based on - documents, meetings attended; discussions with others?
• Whether the plaintiffs were involved in disseminating information about how SCERP worked and what they wrote or said about it, to whom and when;
• What they understood the changes to CERP in 2007 and onwards meant, in terms of whether their entitlement to benefits at the level projected was either permanent or subject to change;
• What that understanding was based on (as per above);
• The extent to which the plaintiffs were involved in communicating these changes and their impact to others, in terms of memos, meetings, etc. and what they said:
• The understanding of each as to the impact of the release they signed and the basis for that understanding.

[ 19 ] GMCL will want to question each of the plaintiffs in depth with respect to each of these issues as these are the issues that the case will ultimately turn on.

The evidence and where it takes us

[ 20 ] GMCL filed a short affidavit from a law associate, Eric Morgan. The salient parts of Morgan’s affidavit are as follows:

• The plaintiffs’ affidavits of documents contain many similar or identical documents;
• They all quote the same terms and conditions of CERP;
• They have each (or three of them in some cases) produced the same reduction notice and similar CERP benefits statements, estimates and retirement initiation forms, as well as early retirement agreements.

[ 21 ] Of course, none of this is surprising – it is their common ground that brings these plaintiffs together in this litigation.

[ 22 ] However, Morgan then goes on to discuss what GMCL’s objectives will be at discovery of these individuals. Their counsel will want to obtain each plaintiff’s evidence about communications and information received about CERP , including oral communications , and what was said by the plaintiffs to each other and to other participants in CERP in their capacity as executives . All four worked either in human resources or labour relations, so each would likely have had dealings with this policy in the course of their work aside from their personal involvement with it.

[ 23 ] Thus, as the claim has been pleaded as one involving representations that were relied on to the plaintiffs’ detriment, it will be critical to get a clear picture of what it is each understood, and how and why each relied on these representations to their detriment.

[ 24 ] The plaintiffs filed no affidavit evidence at all in response to the motion. Instead, they filed two huge volumes, which appeared to contain a variety of documents as well as the transcript of the cross examination of Eric Morgan. Not even one of these documents was referred to during the course of the hearing.

[ 25 ] I gleaned from plaintiffs’ counsel’s oral submissions that the purpose of the exercise was to demonstrate that this is a primarily a document case, so that credibility will not be a key factor. There is no evidence to that effect, nor was I taken to or through the documents, so I have no idea what they involve or consist of. Ultimately, the fact that there may be many documents is not dispositive of whether or not this will be a document-driven case. In view of how the claim has been pleaded, it is difficult to accept this submission, particularly in the absence of any evidence to dispute what GMCL has said in the Morgan affidavit.

[ 26 ] Counsel cannot expect the court to review all of their exhibits when they have not had the courtesy to file them with an affidavit setting out what they are and why they are being filed. They cannot expect the court to read two two-inch thick volumes, cover to cover. This was one of 9 motions on a list that day – a “slow” day by current standards. We therefore look to counsel for guidance when it comes to where we should focus our reading of their materials. In this case, as a result of the absence of an affidavit, that guidance was not provided. The fact that none of these documents was referred to is telling.

[ 27 ] Further, even if this is a “document case” that, alone, will not suffice to allow the court to conclude that credibility will not be an issue or even a key issue at the end of the day. While there may be a myriad of documents addressing the issue of whether this plan was locked in, the two sides appear to have very different views, notwithstanding all of the documentation, as to their meaning and impact. Oral evidence about what each genuinely thought was being conveyed by GMCL and understood by the plaintiffs will be critical in view of how the plaintiffs have pleaded their case. A key factor will be what these very plaintiffs told other employees about CERP, in the context of their respective positions, and what they may have discussed among themselves. Credibility will likely come into play in an important way here.

The law and the analysis

[ 28 ] The plaintiffs asserted that there are two lines of cases dealing with the right to be present at examinations, advocating that the more stringent line of cases should be followed. GMCL conceded that while there were, indeed, two lines, they maintained that, for the most part, Ontario was now following the lead of the B.C. Court of Appeal and imposing a light onus on the moving party. Neither party distinguished between cases where the issue arose in the context of co-parties, as distinct from opposing parties. In large parts, the results differ depending on which of these two factual scenarios is in issue and there is a sound policy basis for such a distinction to be made.

[ 29 ] The starting point is Sissons v. Olson 1951 480 (BC CA) , [1951] BCJ No.77, a decision of the B.C. Court of Appeal. There, a motion was brought by a defendant to be permitted to exclude each plaintiff from the room while the other was being examined, thus this is a a case about co-parties . The decision reveals nothing about the facts of the case or why the request was thought necessary or even appropriate in the context of the case. However, the case is important as it articulates principles of general application when dealing with co-parties.

[ 30 ] What we are told is that the registrar was asked to make an exclusion order at discoveries as plaintiffs’ counsel had attended with both clients and defence counsel wanted to examine each in the absence of the other. The registrar made the exclusion order, though no evidence was submitted to him, such that he based his ruling strictly on the pleadings.

[ 31 ] Further, as Sidney Smith J.A. states, no special circumstances (were) pressed on him . His Honour continues:

I think it is clear that he (the registrar) and defendant’s counsel both took the position that exclusion of a party from the examination of his co-party is a matter of course if requested...

[ 32 ] The registrar’s ruling was upheld by the court, and the plaintiffs appealed further.

[ 33 ] Sidney Smith J.A. begins his brief analysis by looking at English law, concluding that the practice at discoveries in England is very much as it is at trial when dealing with the exclusion of co-parties. He concludes that the weight of authority does not establish that a party has an absolute right to be present at all times. However, he states that a party should not be excluded from either discoveries or trial while his co-party testifies without cause shown.

[ 34 ] This leads to two questions: what constitutes cause and what is required to show it? Sidney Smith J.A. begins by discusses onus, stating that is not a heavy one and that it is lighter when exclusion of a co-party arises in the context of discoveries rather than trial. His reasoning is based on a pragmatic approach, as he finds that the possibility of injustice (to the excluded parties) is more remote (at discoveries than at trial) .

[ 35 ] On the other hand, in Sidney Smith J.A.’s view, in many cases the chance of injustice to the examining party may be very substantial where a co-party is not excluded even in the context of a trial . As a result, the wrap-up principle of what constitutes cause is presented as follows:

I think the benefit of any real doubt should be given to the party asking for exclusion . If from the pleadings or otherwise it appears that the examination of the co- parties will cover the same ground, and that their credibility will be a factor , then it seems to me their exclusion should be ordered.

[ 36 ] Two important points come from this case. First, it deals not with the issue of exclusion generally, but only with exclusion of co-parties. This is clear from the reasoning, e.g./ the reference to questions that will cover the same ground.

[ 37 ] Second, there is no suggestion that credibility must be a key factor – only that it must be a factor. This distinction is important in the context of the plaintiffs’ submissions.

[ 38 ] Sissons has been followed repeatedly by Ontario courts, even in cases that do not involve co-parties and is often referred to as the leading case in favour of the less stringent approach to motions of this kind.

[ 39 ] In Karamanokian v. Assa [1992] OJ No. 2284 , Rutherford J. applied Sissons in a situation involving cross-examination on affidavits in the context of an application to dissolve a partnership. All of the responding parties were brothers and the applicant expressed concern about being denied an effective cross-examination if each heard what the others said before he was cross-examined.

[ 40 ] In applying Sissons and granting the exclusion order sought, Rutherford J. made it clear that there was no affidavit filed by the moving party in support of the relief sought to raise the always present possibility that a party’s evidence might be affected by first hearing the evidence of another party, to the level of probability. As this was an “always present” possibility, it was simply accepted by the court as a possibility here.

[ 41 ] Rutherford J., instead, focused on what was in issue in the case, noting that the central issue, the role and status of the applicant in the partnership, was contested, such that credibility would have to be assessed. He concluded that each case had to be decided on its own facts and the issues to be determined in each action, and he agreed that the onus on the moving party was not a heavy one. He noted that the chance of injustice to a responding party was “pretty remote” if exclusion was ordered, pointing out that no basis for injustice was raised in the matter before him.

[ 42 ] I note that the plaintiffs in this case have also failed to explain what injustice could come of each being excluded from the other’s examination, aside from noting their prima facie right to be present.

[ 43 ] In Blomme v. Eastview Racquet and Fitness Club et al 1995 7237 (ON SC) , 26 OR (3d) 496, Sheppard J. also agreed that Sissons presented the correct approach to the analysis. That case involved the recovery of monies and the plaintiff was successful in excluding each defendant from the discovery of the other. In that case, credibility was going to be the main issue at trial.

[ 44 ] Sheppard J. posed the important question: If the defendants are telling the truth, why shouldn’t they be discovered separately? From a different point of view, if they are permitted to be present at each other’s discovery, is it not open to them to “tailor” their evidence so as to maintain a common front?

[ 45 ] He concluded that justice would be best served by ordering exclusion.

[ 46 ] In Lipishack and Dolores v. DeWolfe and Russ [2008] OJ No. 4918 , Caputo J. made an exclusion order in the context of a neighbours’ dispute regarding a property line. He agreed that the less stringent test should be applied, and that the exclusion should be made unless there is a possibility of injustice from exclusion , thereby suggesting that there was an onus on a party resisting exclusion in a case involving co-parties to explain their position .

[ 47 ] This issue was examined again in Visram v. Chandarana 2010 ONSC 4080 () , [2010] OJ No. 3145. In the context of a case involving a business dispute, Master Graham agreed that it was appropriate that a father and son testify each in the absence of the other. He noted there were issues of credibility as between them on the one hand and the plaintiff on the other.

[ 48 ] When balancing the prima facie right of each to be present during the examination of the other against possible collusion between parties who share an identical interest in the outcome, he favoured exclusion, noting that the Sissons approach to onus was the preferred one.

[ 49 ] In Ambrose v. Anderson 2011 ONSC 4620 () , [2011] OJ No. 3496, Master Graham again adopted the light onus approach when dealing with a case of 9 plaintiffs seeking to be included in a lottery win by 19 other co-employees.

[ 50 ] There are other cases which take a stricter view of the onus on a party seeking exclusion. The plaintiffs point to two such cases they say stand for the proposition that Ontario has not been following Sissons and instead, has continued to apply a more stringent test .

[ 51 ] First, they discuss ICC International Computer Consulting Leasing Ltd. v. ICC International Computer and Consulting GmbH 1988 4637 (ON SC) , [1988] OJ No. 1751, a decision of Anderson J. As Sheppard J. states in Blomme ¸ however, the ICC case is distinguishable as Anderson J. notes that there was a degree of adversity between the two defendants, in the context of a series of actions that were going to be tried together, such that one defendant actually objected to the other being present during his examination.

[ 52 ] That case therefore appears to deal with the issue of the right of one party to be present at the discovery of party adverse in interest, rather than the exclusion of co-parties at discoveries.

[ 53 ] Anderson J. also discusses Baywood Paper Products Ltd. v. Paymaster Cheque-Writers (Canada) Ltd. (1986), 1986 2699 (ON SC) , 57 OR (2d) 229, in which the inherent right to be present at the examination for discovery of the opposite party was reviewed, and he states that he agrees with the conclusions reached in that case. However, he cites no authority for nor does he review the situation in the context of co-parties and there is no basis to assume he had that in mind when formulating principles of general application. While they may be principles of general application, they are, on my reading, of general application to cases based on a similar factual matrix – where we are dealing with parties that are adverse in interest.

[ 54 ] The general rule that a party has an inherent right to be present during the examination for discovery of an opposite party makes perfect sense, as each party should know what has been said about the case so that he can properly instruct counsel. Being present at the discovery allows a party to immediately point out to their counsel that a response that has been given can be challenged on the basis of a particular document or by asking a particular follow-up question.

[ 55 ] Further, the process is enhanced if parties are required to give their evidence while facing their adversary who may well have a different version of events. Some parties may find it more difficult to play fast and loose with the truth or to do so in a convincing manner when the person who knows the score is sitting right across from them. Thus, in most cases, permitting parties adverse in interest to hear one another testify may well enhance the ends of justice. Excluding parties in those cases is not something that should be undertaken lightly.

[ 56 ] The analysis, however, must be different when the issue involves co-parties rather than parties adverse in interest. This is necessarily the case, if the ultimate goal is to secure the ends of justice.

[ 57 ] Sitting in on the examination of an adversary does not require counsel to tip his hand. When she asks questions, she is not making others who will be asked the same or similar questions aware of her strategy or eliminating the surprise element. Allowing adverse parties to hear one another testify, in most cases, will not affect responses given.

[ 58 ] The situation is very different when co-parties are involved. To begin with, unless there has been early mediation, this is generally the first opportunity that examining counsel has to see and hear the other party – and the first time the party is being asked to provide evidence under oath.

[ 59 ] There is usually no previous transcript that can be accessed and used by counsel as a guide at the oral discovery stage. Instead, counsel goes in blind but for the documents, hoping for certain responses, perhaps fearful of others. The story develops.

[ 60 ] There is an art to putting together questions for an effective examination for discovery and for setting the right tone at each stage of this event. Depending on the nature of the case, examining counsel may want to start off gently, gaining the party’s trust and making him comfortable enough to speak easily and openly. As more contentious issues arise, the tone may change and become more confrontational. This is all a matter of strategy and works best when the party being examined does not see what is coming next.

[ 61 ] Similarly, the line of questions may be designed to elicit a series of responses, each of which, in isolation, may appear to be benign. When the answers are gathered together, however, and wrapped up as the factual foundation for the final few questions on which the case may turn, the element of surprise may be critical, all the more so when credibility is in issue. This is not trickery – it is legitimate strategy designed to lead to an accurate and honest series of responses.

[ 62 ] Allowing co-parties to sit in on the discovery of one another interferes with this process. After the first plaintiff has been examined, the others will know:

• The precise questions that will be asked of them;
• The order in which the questions will likely be asked;
• How they will be asked – counsel’s approach, either to gain their trust or throw them off their pace;
• Where the first plaintiff may have gotten caught, so that the response can be modified in order to avoid the same pitfall;
• What admissions are being sought, thereby providing time to figure out how to avoid making them; and
• How various responses may be challenged.

[ 63 ] None of these concerns arise in the ordinary course in the context of parties adverse in interest. Presumably, that is why there is a higher onus that a party seeking to exclude must meet in order to circumvent the inherent right to be present when the motion involves an opposite party.

[ 64 ] The plaintiffs also rely on Cullity J’s decision in Changoo v. Changoo [1999] OJ No. 865 to support their position that there are two lines of cases in Ontario. Though the learned judge appears to be making statements of a general nature, it is critical to bear in mind that in that case, he was dealing with cross-examination on affidavits filed in support of a motion, not examination for discoveries.

[ 65 ] Cullity J. begins his analysis by examining the exclusion rule as it applies at a trial, drawing an analogy between cross-examination on an affidavit and testifying at trial and concluding that the onus to show cause for exclusion at trial is a heavy one and so should it be in this context.

[ 66 ] He does note the cross-examination is unlike a discovery as, in the former case, the evidence in chief has already been provided through the affidavit. Though he speaks generally about how a request for exclusion might be approached in the context of discoveries, he really does not get into a discussion about the issue – nor was he required to, as that was not the case before the court.

[ 67 ] I therefore do not agree that this case is part of any line that is helpful in the context of the case before this court.

[ 68 ] Thus, the two cases cited by the plaintiffs to support the application of a heavier onus than articulated in Sissons both arose in very different factual contexts, neither of which involve similar policy considerations to those that arise in the context of seeking exclusion of co-parties during oral discovery.

[ 69 ] The plaintiffs have also tried to craft a different version of the test that has been applied by the courts thus far. While the cases do state that credibility should be in issue before an exclusion order of co-parties is made, the plaintiffs take this a step further and state that credibility must actually be a key factor. However, they have pointed the court only to one case where the test was framed that way. They also ask the court to infer that, though not articulated as such, in other cases where exclusion was permitted, the facts of those cases demonstrated that credibility was a key factor.

[ 70 ] The plaintiffs point to Besner v. Ontario , [2011] OJ No. 5851 , where Master Roger applied this “credibility as a key factor” principle when deciding whether or not to grant an exclusion order. That case is factually distinguishable from this matter, as the police officer defendants in that case had all already testified at a preliminary inquiry – and, I note, each was excluded when areas involving overlapping testimony arose in that forum.

[ 71 ] As a result, the policy reasons behind exclusion at discovery – ensuring the freshness of the evidence of each and avoiding the possibility of collusion or even inadvertent parroting of evidence- – were not strong factors, as each defendant would have had access to the transcript of the testimony of the others from the earlier event. In other words, all of these defendants knew what their co-parties were likely to say at discoveries as they had already said it during the course of the preliminary inquiry. The mischief that an exclusion order was designed to prevent could not be addressed by an exclusion order here.

[ 72 ] As a result, though Master Roger may have articulated a test involving a requirement that exclusion only be permitted where credibility was a key factor, it was not likely going to be a factor at all in the case before him in view of that case’s history. As a result, I find the master’s comments are, in large part, obiter. In any event, I do not agree with them as they do not appear to be in accord with the bulk of cases dealing with co-parties.

[ 73 ] I note the master was upheld on appeal. I am aware of this only because GMCL filed the appeal decision - the plaintiffs filed both this case as well as another without the appeal decisions, though the appeal is mentioned in other cases relied on by the plaintiffs.

[ 74 ] In view of the facts in Benser , that is not surprising as the master was upheld as he was correct in the result. I note that the judge hearing the appeal made it clear that in that case, there was no reference in the supporting affidavit as to why an exclusion order was sought, though there was sufficient materials available from which an argument could have been pulled together. He points out that the criminal proceedings which led to the civil action were extensive, and that they included 1400 pages of police notes, six days of cross-examinations of the defendants police offices and the relevant transcripts of those examinations. Again, what possible purpose could have an exclusion order have served in the context of that background?

[ 75 ] Counsel then took me from case to case, to show that a review of the facts of each makes it clear that credibility had to have been a key factor, though this was never stated. The plaintiffs effectively asked this court to accept this new and more stringent test than any of the cases have applied when dealing with co-parties before Besner . In view of the general movement towards a more lenient approach that has generally been adopted in Ontario regarding the exclusion of co-parties, I see absolutely no basis for moving in this direction.

[ 76 ] I note further that this issue only arises here as result of a decision made to bring all four claims together in one action. This is a case of co-plaintiffs, each pressing their own claim, therefore unlike many of the cases relied on by both parties, where co-parties were necessary parties to the action in which the issue arose. That is not the case here. Had each plaintiff pursued his claim independently of the others, as each could well have done, there would be no question of the plaintiffs sitting in on one another’s examinations.

[ 77 ] Finally, I note there is no evidence before the court to suggest that an exclusion order would in any way prejudice any of the plaintiffs. There is no responding evidence in proper form at all before the court nor were submissions made to explain, even theoretically, why an exclusion order ought not to be made in cases of this nature.

[ 78 ] I am faced with a case involving:

• 4 plaintiffs, each seeking the same outcome regarding how the court should view their entitlement to a voluntary pension plan;
• None of the plaintiffs has pleaded a contractual right to these monies or breach of contract;
• Each, instead, has pleaded detrimental reliance on representations that were made;
• They do not specify either in their pleadings or in evidence before this court that the representations were all made in writing;
• Though the plaintiffs may rely on written representations, in their pleading, GMCL disputes that all representations were made in writing, and indicates that what was said at meetings and on their intranet must also be included in representations that were made about the operation of this program;
• In view of their respective positions, the plaintiffs, themselves, could well have been among those disseminating information about how this program worked; and
• All four plaintiffs will be asked the same or very similar questions at discoveries.

[ 79 ] In view of all of the above, credibility will certainly be a factor in this case. It may turn out to be a key factor if the plaintiffs maintain that all they knew about the program is based on documents they were given, if it is later shown, by witnesses, that they were involved in leading meetings or participating in seminars where they, themselves, said something other than what is conveyed by the documents they rely on.

[ 80 ] I do not believe, however, that credibility must be a key factor before I can make the order sought. I accept and apply Sissons and the line of cases following it that say the moving party does not face a heavy burden when moving to exclude co-parties from discovery of one another. I find that GMCL has met its burden. The potential for harm in allowing all to sit in far outweighs any possible harm that could be caused by an exclusion order and, in this case, no actual harm was even hinted at.

[ 81 ] On the basis of the foregoing , it is ordered that:

a) The examination for discovery of each plaintiff will take place in the absence of any and other plaintiffs who have not yet had their examinations for discovery completed;

b) All plaintiffs, their counsel and anyone that any of them bring into the discovery room are prohibited from disclosing, directly or indirectly, any aspect of their examination for discovery including but not restricted to the questions asked; their responses; the manner in which the questions were posed; the order of questions or the areas of questioning; the demeanour of counsel asking the questions to any of the plaintiffs or to anyone else who may then pass the information along to any of the plaintiffs until such time as the examinations of each of them has been completed;

c) No transcripts of the examinations for discovery of any of the plaintiffs shall be provided to any of the plaintiffs until such time as their own examination ahs been completed;

d) “completion of an examination for discovery” shall include

i) The initial attendance to be examined;

ii) Any further attendance that may be required in order to respond to questions properly arising from responses provided to undertakings or in compliance with a refusals order;

iii) Written confirmation from GMCL counsel that they have completed their examination of that particular plaintiff.

[ 82 ] The parties agreed in advance that the quantum of costs should be $15,000 regardless of who prevails. In view of the result, those costs are now payable to the moving party within 30 days.

Master Joan M. Haberman

Released: May 29, 2012