Witnesses may be excused for ill health but only where such is proven strictly

W. Bryant Shears Ltd. v. Sharmat Services Inc. 2012 NLCA 17 is a useful source for the principle that witnesses may be excused for ill health but only where such is proven strictly:

 

[6]              A potential witness may be excused from testifying in court where the trial judge finds that a witness’s health may be seriously jeopardized by attending and giving evidence: see, for example, Toronto Dominion Bank v. Goldberger Holdings Ltd.(1999), 49 C.P.C. (4th) 306 (Ont. S.C.J.); Re Jacobs (1835), 1 Har. & W. 123 (Bail Ct.). The onus of demonstrating the risk to the health or life of the witness is on the party raising it, and the burden is a high one. We would adopt the following statement from Alan W. Mewett, Q.C. and Peter J. Sankoff, Witnesses, looseleaf (Toronto: Carswell, 1991) at 7-27, where the authors, citing  Rumble v. Canada Permanent Trust Co. 1999 CanLII 14267 (MB QB), (1999) 140 Man. R. (2d) 154 (QB) and Lamothe (Litigation Guardian of) v. Parkland School Division No. 63 (2007), 49 C.P.C. (6th) 324 (Sask. Q.B.), suggest that, “… where  the evidence of the witness is required for the action the courts will usually side in favour of granting the examination with conditions imposed to make the process easier upon the witness unless it is clear that the risk of serious harm from testifying simply cannot be avoided.”