Marginal note:Examination of non-parties with leave
238. (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
239. (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
240. 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.
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