Use at Hearing
89. (1) Unless the Court otherwise directs, except with the consent in writing of the other party or where discovery of documents has been waived by the other party, no document shall be used in evidence by a party unless
(a) reference to it appears in the pleadings, or in a list or an affidavit filed and served by a party to the proceeding,
(b) it has been produced by one of the parties, or some person being examined on behalf of one of the parties, at the examination for discovery, or
(c) it has been produced by a witness who is not, in the opinion of the Court, under the control of the party.
(2) Unless the Court otherwise directs, subsection (1) does not apply to a document that is used solely as a foundation for or as part of a question in cross-examination or re-examination.
- SOR/2008-303, s. 12.
Disclosure or Production not Admission of Relevance
90. The disclosure or production of a document for inspection shall not be taken as an admission of its relevance or admissibility.
Effect of Failure to Disclose or Produce for Inspection
91. Where a person or party who is required to make discovery of documents under sections 78 to 91 fails or refuses without reasonable excuse to make a list or affidavit of documents or to disclose a document in a list or affidavit of documents or to produce a document for inspection and copying, or to comply with a judgment of the Court in relation to the production or inspection of documents, the Court may,
(a) direct or permit the person or party to make a list or affidavit of documents, or a further list or affidavit of documents,
(b) direct the person or party to produce a document for inspection and copying,
(c) except where the failure or refusal is by a person who is not a party, dismiss the appeal or allow the appeal as the case may be,
(d) direct any party or any other person to pay personally and forthwith the costs of the motion, any costs thrown away and the costs of any continuation of the discovery necessitated by the failure to disclose or produce, and
(e) give such other direction as is just.
EXAMINATION FOR DISCOVERY
92. An examination for discovery may take the form of an oral examination or, at the option of the examining party, an examination by written questions and answers, but the examining party is not entitled to subject a person to both forms of examination except with leave of the Court.
Who May be Examined
93. (1) A party to a proceeding may examine for discovery an adverse party once, and may examine that party more than once only with leave of the Court.
(2) A party to be examined, other than an individual or the Crown, shall select a knowledgeable current or former officer, director, member or employee, to be examined on behalf of that party, but, if the examining party is not satisfied with that person, the examining party may apply to the Court to name some other person.
(3) The Crown, when it is the party to be examined, shall select a knowledgeable current or former officer, servant or employee, nominated by the Deputy Attorney General of Canada, to be examined on behalf of that party, but, if the examining party is not satisfied with that person, the examining party may apply to the Court to name some other person.
(4) If a current or former officer, director or employee of a corporation or of the Crown has been examined, no other person may be examined without leave of the Court.
(5) Where an appeal is brought by a party under a legal disability,
(a) the representative for that party may be examined in place of that party; or
(b) at the option of the examining party, the party under a legal disability may be examined if that party is competent to give evidence.
If the representative referred to in paragraph (a) is a public official, that person may be examined only with leave of the Court.
(6) Where an appeal is brought by an assignee, the assignor may be examined in addition to the assignee.
(7) Where an appeal is brought by a trustee of the estate of a bankrupt, the bankrupt may be examined in addition to the trustee.
(8) Where a party is entitled to examine for discovery,
(a) more than one person under this section, or
(b) multiple parties who are in the same interest,
but the Court is satisfied that multiple examinations would be oppressive, vexatious or unnecessary, the Court may impose such limits on the right of discovery as are just.
- SOR/2007-142, s. 11;
- SOR/2008-303, s. 13.
- Date modified: