Use of Examination for Discovery at Hearing
100. (1) At the hearing, a party may read into evidence as part of that party’s own case, after that party has adduced all of that party’s other evidence in chief, any part of the evidence given on the examination for discovery of
(a) the adverse party, or
(b) a person examined for discovery on behalf of or in place of, or in addition to the adverse party, unless the judge directs otherwise,
if the evidence is otherwise admissible, whether the party or person has already given evidence or not.
(1.1) The judge may, on request, allow the part of evidence referred to in subsection (1) to be read into evidence at a time other than that specified in that subsection.
(2) Subject to the provisions of the Canada Evidence Act, the evidence given on an examination for discovery may be used for the purpose of impeaching the testimony of the deponent as a witness in the same manner as any previous inconsistent statement by that witness.
(3) Where only part of the evidence given on an examination for discovery is read into or used in evidence, at the request of an adverse party the judge may direct the introduction of any other part of the evidence that qualifies or explains the part first introduced.
(3.1) A party who seeks to read into evidence under subsection (1) or who requests the judge to direct the introduction of evidence under subsection (3) may, with leave of the judge, instead of reading into evidence, file with the Court a photocopy or other copy of the relevant extracts from the transcripts of the examination for discovery, and when the copy is filed such extracts shall form part of the record.
(4) A party who reads into evidence as part of that party’s own case evidence given on an examination for discovery of an adverse party, or a person examined for discovery on behalf of or in place of or in addition to an adverse party, may rebut that evidence by introducing any other admissible evidence.
(5) The evidence given on the examination for discovery of a party under legal disability may be read into or used in evidence at the hearing only with leave of the judge.
(6) Where a person examined for discovery,
(a) has died,
(b) is unable to testify because of infirmity or illness,
(c) for any other sufficient reason cannot be compelled to attend at the hearing, or
(d) refuses to take an oath or make an affirmation or to answer any proper question,
any party may, with leave of the judge, read into evidence all or part of the evidence given on the examination for discovery as the evidence of the person examined, to the extent that it would be admissible if the person were testifying in Court.
(7) In deciding whether to grant leave under subsection (6), the judge shall consider,
(a) the extent to which the person was cross-examined on the examination for discovery,
(b) the importance of the evidence in the proceeding,
(c) the general principle that evidence should be presented orally in Court, and
(d) any other relevant factor.
(8) Where an appeal has been discontinued or dismissed and another appeal involving the same subject matter is subsequently brought between the same parties or their representatives or successors in interest, the evidence given on an examination for discovery taken in the former appeal may be read into or used in evidence at the hearing of the subsequent appeal as if it had been taken in the subsequent appeal.
- SOR/96-503, s. 2;
- SOR/2008-303, s. 15.
- Date modified: