With all the preliminaries taken care of, we can finally look at the Brief which I filed in support of my Motion for Exclusion.
I begin with some general remarks about the nature of the case: how in a conspiracy, the defendants will naturally try to deny whatever supposedly happened behind closed doors, and one of the few ways the plaintiff can overcome this is to show discrepancies between the stories of the various co-defendants. In my case, the defendants want to show that my failings as a teacher were so obvious that they were independently identified by numerous independent witnesses. I want to compromise that assertion by showing the witnesses were not as independent as they claim to be.
Am I not, in so arguing, weakening my own case by giving the co-defendants advance notice of how I intend to attack their stories. Yes I am; in fact, it soon gets worse. In the next paragraph (para. 4) I point out a specific example of inconsistencies in the written record. Where the classroom teacher (Tram) reported that I "tapped" a student on the shoulder, the Principal (Skull) reported to the University that I "grabbed" a student by the shoulder.
I'd like to know how they'll explain that one away. In fact, I would have much rather had the chance to confront each of those two defendants independently, to see how each one explained it without knowing what the other would say. But here I've gone and put it in my brief, so they have plenty of opportunity to come up with a united story. Why did I do this?
It was a calculated sacrifice designed to improve my chances of getting the motion approved. In my review of case law, I found that there are four things a court will consider before granting the kind of motion which I am after. The factors are:
1. To what extent will the credibility of the respondents will be a major factor in deciding the action?
2. Can the applicant show that there is a reasonable apprehension that the respondents may take advantage of the opportunity to harmonize and tailor their evidence if not excluded from each others’ examinations?
3. Is there a substantial commonality of interest among the various defendants?
4. To what extent is the examination of those parties expected to cover similar or identical ground?
It is item 2 which is the sticky point here. Different courts have held applicants to different standards in terms of establishing "reasonable apprehension" of tailoring. In one especially useful case, Lambert v Longmore (Alberta Supreme Court), the majority held the applicant to the standard of providing "cogent evidence" to support the apprehension of tailoring, while the minority in dissent argued for a much more lenient threshold. I argue that I should be held to the more lenient threshold of merely asserting by affidavit that such apprehension exists, but I do not trust the courts to accept that argument: so at the same time, I attempt to meet the more stringent hurdle of "cogent evidence". That's why I submit the conflicting testimonies of Tram and Skull as evidence of the propensity of my opponents to tailor evidence to suit their needs. By sacrificing this example, I hope to open the door to identifying even more examples on discovery.
And that's where it stands. I go to court Monday morning to set a date...that is, assuming counsel for the other side intends to oppose my motion. If you're wondering where I find all the precedents that I've talked about, the website is called CANLII and you can search by name or topic. I think you'll find my cases if you search for "exclusion of parties".