Is Rule 24(12) of the FLR discretionary to exclude a plaintiff from the trial?

Rule 24(12) FLR is discretionary. The discretion must be applied to further the primary objective of fairness. One party should not be disadvantaged in the litigation by being unable to test the evidence of the other party: Stuart v. Stuart, supra, at para’s 5 and 7.

A number of criterion are considered in determining whether interim disbursements should be granted. These are set out by Justice Rogers in Stuart v. Stuart, and include: a. Discretion should be exercised to ensure all parties can equally provide or test disclosure, make or consider offers or possibly go to trial; b. The award should be made to level the playing field; c. The claim being advanced must be meritorious as far as can be determined on the balance of probabilities at the time of the request for disbursements; d. Certainly, the proof of necessity of interim disbursement would be critical to the successful claim. The claimant must clearly demonstrate that the disbursements are necessary and responsible given the needs of the case and the funds available. In particular, if an expert is the subject of a requested disbursement, the claimant must demonstrate there is a clear need for the services of said expert; and e. The claimant must demonstrate that he or she is incapable of funding the requested amounts: Stuart v. Stuart, supra, at para.’s 8 to 14.

The moving party must provide evidence that either there are no other resources available to fund the legal cost or expense to carry the case, or alternatively, that it would not be fair or reasonable for that party to access those resources for litigation: Woodburn v. Woodburn, 2016 ONSC 6694 (CanLII), at para. 29.