Doucet et al. v. Spielo Manufacturing Inc. et al.,

• Jurisdiction: New Brunswick
• Judge: Rideout, J.
• Neutral Citation: 2008 NBQB 422
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Citation: (2008), 340 N.B.R.(2d) 145 (TD),2008 NBQB 422
• Date: 24 November 2008

Doucet v. Spielo Mfg. Inc. (2008), 340 N.B.R.(2d) 145 (TD);

    340 R.N.-B.(2e) 145; 871 A.P.R. 145

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2009] N.B.R.(2d) TBEd. JA.002

Renvoi temp.: [2009] N.B.R.(2d) TBEd. JA.002

Yves Doucet and Peter Dauphinee (plaintiffs) v. Spielo Manufacturing Incorporated and Jon Manship (defendants)

(M/C/1157/03; 2008 NBQB 422; 2008 NBBR 422)

Indexed As: Doucet et al. v. Spielo Manufacturing Inc. et al.

Répertorié: Doucet et al. v. Spielo Manufacturing Inc. et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Rideout, J.

November 24, 2008.

Summary:

Résumé:

The plaintiffs were employees and minority shareholders of the corporate defendant. They sued the defendants alleging, inter alia, wrongful dismissal, oppression, unjust enrichment and breach of fiduciary duty. During the trial, at the plaintiffs' request, the court excluded a witness for the defendants (Hicks) from the courtroom pursuant to rule 54.06 of the Rules of Court. The defendants later requested that Hicks be readmitted to the courtroom once cross-examination of the defendant Manship commenced because Hicks was a witness whose presence was essential to instruct the defendants' counsel.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the motion.

Editor's Note: There are several prior cases involving these parties.

Evidence - Topic 4800

Witnesses - Examination - Separation or exclusion of witnesses - General - Rule 54.06(1) of the Rules of Court provided that "Subject to paragraph (2), the court may, and at the request of any party shall, exclude any witness from the courtroom until called to give evidence" - The New Brunswick Court of Queen's Bench, Trial Division, stated that the party requesting the exclusion of witnesses was not required to give reasons for the request - See paragraph 5.

Evidence - Topic 4803

Witnesses - Examination - Separation or exclusion of witnesses - Where witness essential to instruct counsel - During the trial, at the plaintiffs' request, the court excluded a witness for the defendants (Hicks) from the courtroom pursuant to rule 54.06(1) of the Rules of Court for credibility reasons - The defendants later requested that Hicks be readmitted to the courtroom once cross-examination of the defendant Manship commenced because Hicks was a witness whose presence was essential to instruct the defendants' counsel (rule 54.06(2)(b)) - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the motion - Rule 54.06(1) was mandatory in its operation - Once a witness had been excluded, that appeared to preclude the argument that the person was essential to instruct counsel - Presumably, that person was just as essential during direct examination as the person would be for cross-examination - Therefore, the objection, as framed, should have been made at the outset - The purpose of the Rule was to avoid a witness either intentionally or unintentionally tailoring the witnesses' evidence - That risk existed both during direct examination and cross-examination and perhaps more so during cross-examination.

Preuve - Cote 4800

Témoins - Interrogatoire - Séparation ou exclusion des témoins - Généralités - [Voir Evidence - Topic 4800 ].

Preuve - Cote 4803

Témoins - Interrogatoire - Séparation ou exclusion des témoins - Témoin indispensable pour donner des directives à l'avocat - [Voir Evidence - Topic 4803 ].

Cases Noticed:

Beyea v. Irving Oil (1986), 70 N.B.R.(2d) 1; 179 A.P.R. 1 (C.A.), refd to. [para. 3].

Canadian Imperial Bank of Commerce v. Robertson and Lam (1983), 47 N.B.R.(2d) 385; 124 A.P.R. 385 (T.D.), refd to. [para. 5].

R. v. Murphy (P.A.) (1994), 114 Nfld. & P.E.I.R. 148; 356 A.P.R. 148 (Nfld. C.A.), refd to. [para. 6].

Statutes Noticed:

Rules of Court (N.B.), rule 54.06 [para. 1].

Counsel:

Avocats:

George MacDonald and Eric LeDrew, on behalf of the plaintiffs;

Gordon Petrie, Q.C., and Catherine Lahey, on behalf of the defendants.

This motion was heard on November 24, 2008, before Rideout, J., of New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who released the following oral decision on that date.