Scared? You Can Exclude a Litigant from Attending Your Motor Vehicle Accident Questioning

Johnny Pak

The Alberta Court of King’s Bench, in Kosowan v. Ferrier, 2017 ABQB 276, dismissed a Plaintiff’s appeal of a Master’s decision to physically exclude him from attending at questioning of one of the Defendants because the said Defendant was scared of him.

By way of background, the action arose out of a motor vehicle accident in 2013 whereby the Plaintiff’s motorcycle was struck by a vehicle driven by the said Defendant. Following the collision, the said Defendant found information online suggesting that the Plaintiff was an initiate of the Hells Angels and that had been charged with a number of offences (including kidnapping, extortion, assault with a weapon, and unlawful confinement). In connection with the application, the said Defendant swore an affidavit stating she was “scared to death” of the potential repercussions if she gave her version of events at Questioning. In response, the Plaintiff deposed that he had not been associated with the Hells Angels since 2012.

The Honourable Madam Justice D.L. Shelley confirmed in her decision that although parties have an inherent right to be present at Questioning, the court retains the discretion to exclude a party from the proceeding. However, the party seeking the exclusion order must demonstrate that there is a “reasonable apprehension” that the objectives of questioning will not be met unless the order is granted.  Objectives of questioning include:

1. Enabling the questioning party to know the case to meet.
2. Obtaining admissions that allow a party to dispense with formal proof.
3. Obtaining admissions that may destroy the opponent’s case.
4. Facilitating settlement, trials, and pre-trial procedures.
5. Eliminating or narrowing issues.
6. Avoiding surprise at trial.

The court further clarified that to exclude on the basis of fear, the underlying fear must be “objectively reasonable”.  On a policy and logical basis, it would be unjust that an individual could express a subjective fear of a person or group on frivolous grounds, and because the outcome would be dire (i.e. a party refuses to be questioned unless exclusion is granted), a litigant would be denied their inherent right to be present.
In arriving at her conclusion, the Honourable Madam Justice D.L. Shelley held:

In this case, while Ms. Ferrier’s subjective fear of Mr. Kosowan may be extreme, and arguably not warranted by the information provided in connection with his application, I cannot conclude that there is no objective basis whatsoever.  Mr. Kosowan’s admitted association with the Hells Angels in the past (whether or not it continues) and the charges that he faced (although he was not convicted of them) provide some objective basis to substantiate Ms. Ferrier’s concerns.

I conclude that, in light of all of the circumstances, the Master did not err in excluding Mr. Kosowan’s physical presence from Ms. Ferrier’s Questioning.  The reasons Mr. Kosovan has given for needing to meet Ms. Ferrier face to face at Questioning are questionable, given that she has admitted to driving the car and his lawyer will be present to assess her credibility in person.  While Mr. Kosowan’s ability to do so will be somewhat limited because he will not be able to see her face, he will nonetheless be able to attend by telephone or teleconference and will have the benefit of hearing her responses to questions as she provides them.