Federal Courts Rules (SOR/98-106)

Regulations are current to 2015-08-04 and last amended on 2015-01-30. Previous Versions

Marginal note:Examination of non-parties with leave
  •  (1) A party to an action may bring a motion for leave to examine for discovery any person not a party to the action, other than an expert witness for a party, who might have information on an issue in the action.

  • Marginal note:Personal service on non-party

    (2) On a motion under subsection (1), the notice of motion shall be served on the other parties and personally served on the person to be examined.

  • Marginal note:Where Court may grant leave

    (3) The Court may, on a motion under subsection (1), grant leave to examine a person and determine the time and manner of conducting the examination, if it is satisfied that

    • (a) the person may have information on an issue in the action;

    • (b) the party has been unable to obtain the information informally from the person or from another source by any other reasonable means;

    • (c) it would be unfair not to allow the party an opportunity to question the person before trial; and

    • (d) the questioning will not cause undue delay, inconvenience or expense to the person or to the other parties.

Marginal note:Expenses of person examined
  •  (1) Unless the Court orders otherwise, a party who is granted leave to examine a person under rule 238 shall pay to the person

    • (a) at least 10 days before the day of the examination, an amount sufficient to cover reasonable travel expenses; and

    • (b) within 10 days after the examination, an amount sufficient to cover any reasonable travel expenses in excess of the initial payment.

  • Marginal note:Assistance of solicitor

    (2) A person being examined under rule 238 is entitled to be assisted by a solicitor.

  • Marginal note:Costs of solicitor

    (3) On motion, the Court may, in special circumstances, order that the costs of a solicitor assisting a person to be examined under rule 238 be included in the amounts paid under subsection (1).

  • Marginal note:Questioning by other parties

    (4) A person being examined under rule 238 may also be questioned by any other party.

  • Marginal note:Cross-examination or hearsay

    (5) A person being examined under rule 238 shall not be cross-examined and shall not be required to give hearsay evidence.

  • Marginal note:Use as evidence at trial

    (6) The testimony of a person who was examined under rule 238 shall not be used as evidence at trial but, if the person is a witness at trial, it may be used in cross-examination in the same manner as any written statement of a witness.

Marginal note:Scope of examination

 A person being examined for discovery shall answer, to the best of the person's knowledge, information and belief, any question that

  • (a) is relevant to any unadmitted allegation of fact in a pleading filed by the party being examined or by the examining party; or

  • (b) concerns the name or address of any person, other than an expert witness, who might reasonably be expected to have knowledge relating to a matter in question in the action.