Videotaping or other Recording of Examination
109. (1) On consent of the parties or by direction of the Court, an examination may be recorded by videotape or other similar means and the tape or other recording may be filed for the use of the Court along with the transcript.
(2) Section 111 applies, with necessary modifications, to a tape or other recording made under subsection (1).
Sanctions for Default or Misconduct by Person to be Examined
110. Where a person fails to attend at the time and place fixed for an examination in the notice to attend or subpoena, or at the time and place agreed on by the parties, or refuses to take an oath or make an affirmation, to answer any proper question, to produce a document or thing that that person is required to produce or to comply with a direction under section 108, the Court may,
(a) where an objection to a question is held to be improper, direct or permit the person being examined to reattend at that person’s own expense and answer the question, in which case the person shall also answer any proper questions arising from the answer,
(b) where the person is a party or, on an examination for discovery, a person examined on behalf of or in place of a party, dismiss the appeal or allow the appeal as the case may be,
(c) strike out all or part of the person’s evidence, including any affidavit made by the person, and
(d) direct any party or any other person to pay personally and forthwith costs of the motion, any costs thrown away and the costs of any continuation of the examination.
Filing of Transcript
111. (1) It is the responsibility of a party who intends to refer to evidence given on an examination to have a copy of the transcript of the examination available for filing with the Court.
(2) A copy of a transcript for the use of the Court at hearing shall not be filed until a party refers to it at hearing, and the presiding judge may read only the portions to which a party refers.
Examination Where Person Outside Canada
112. (1) Where the person to be examined resides outside of Canada the Court may determine,
(a) whether the examination is to take place in or outside of Canada,
(b) the time and place of the examination,
(c) the minimum notice period,
(d) the amount of witness fees and expenses to be paid to the person to be examined, and
(e) any other matter respecting the holding of the examination.
(2) Where the person is to be examined outside of Canada, the direction under subsection (1) shall, if the moving party requests it, provide for the issuing of,
(a) a commission (Form 112(2)(a)) authorizing the taking of evidence before a named commissioner, and
(b) a letter of request (Form 112(2)(b) — REQUEST) directed to the judicial authorities of the jurisdiction in which the person is to be found, requesting the issuing of such process as is necessary to compel the person to attend and be examined before the commissioner, and the direction shall be in Form 112(2)(b)A — DIRECTION.
(3) The commission and letter of request shall be prepared and issued by the Registrar.
(4) Where the person to be examined resides outside of Canada and is not a party or a person to be examined on behalf of or in place of a party, the examining party shall pay or tender to the person to be examined the amount of witness fees and expenses fixed under subsection (1).
(5) A commissioner shall, to the extent that it is possible to do so, conduct the examination in the form of oral questions and answers in accordance with these rules, the laws of evidence of Canada and the terms of the commission, unless some other form of examination is required by the judgment or the law of the place where the examination is conducted.
(6) As soon as the transcript of the examination is prepared the commissioner shall,
(a) return the commission, together with the original transcript and exhibits, to the Registrar who issued it,
(b) keep a copy of the transcript and, where practicable, the exhibits, and
(c) notify the parties who appeared at the examination that the transcript is complete and has been returned to the Registrar who issued the commission.
(7) The Registrar shall send the transcript to the counsel for the examining party and the counsel shall, if requested, forthwith serve every other party with the transcript free of charge.
- SOR/2004-100, s. 14(F).
- Date modified: