Overview

In this case, the husband is very wealthy businessperson, founder of Ethereum Blockchain and its cryptocurrency. The wife swears she was involved in every aspect of the founding and development of the business as 50/50 partners with her husband from the outset of their relationship in 2002 until the date of separation in October of 2017.

When the matter went to court, she retained experts in the field of cryptocurrencies and the cryptocurrency market to assist her. One of these expects is James McDougall. Mr. McDougall swore an affidavit in support of the wife’s disclosure motion.

The husband objected to Mr. McDougall serving as an expert witness, alleging lack of independence due to their previous friendship. They had previously done business together and had a severe falling out. The husband subsequently brought a motion to exclude Mr. McDougall’s testimony.

However, the main issue in this decision was with respect to the wife’s counsel request to have Mr. McDougal present during the husband’s cross-examination on affidavits. Her counsel explained that his presence was to assist him with understanding the complexities of cryptocurrency and to subsequently formulate appropriate questions.

The examination was scheduled, but when the date approached, the husband did not attend due to the Mr. McDougall’s attendance. Counsel for the wife submitted that the husband had no right to refuse to attend his examination, which is the matter the court dealt with in this decision.

Issues

The issue the court addresses in this case is whether a person can attend an examination to assist counsel.

Analysis

The court found that counsel should not need to seek leave every time they wish to bring someone to help them at an examination, as this would cause exceptional costs and delays. Case law indicates that parties have a prima facie right to attend each other’s examination for discovery, and a party who wishes to try to exclude a party opposite from discovery has a burden to move for that relief on showing that there is a significant risk of mischief if the opposite party hears the evidence to be given at the examination. When considering this case law, the court then questioned how the burden to bring a motion to exclude a party opposite evolved to a burden to bring a motion to allow counsel to have assistance.

The court stated that counsel who requests assistance should be trusted without requiring proof to the contrary. They did not see any harm with allowing the wife’s counsel to have an expert attend an examination to assist as needed. If the process were to be abused, the opposite party would have the option to move to exclude the person or people whose attendances are being challenged, but counsel should not require leave of the court to bring someone to assist them. The court compared the attendance of an expert for assistance to the attendance of a junior, student or clerk for assistance. If anything and in the appropriate circumstances, a written undertaking or confirmation should be provided if a concern is raised. The onus to bring a motion should lie with the party seeking to exclude counsel’s chosen helpers. Until such a motion succeeds, a witness has no right to refuse attendance at a scheduled examination on the basis of the presence of helpers for counsel opposite.

Conclusion

The husband had no right to refuse attendance at his examination on the basis of Mr. McDougall’s attendance. There was no reason to exclude Mr. McDougall from attending the examination to assist the wife’s counsel with the complexities of cryptocurrency, and he is entitled to attend the examination upon it being rescheduled.