Federal Courts Rules (SOR/98-106)

Oral Examinations

Marginal note:Oral examination

• 89 (1) A party requesting an oral examination shall pay the fees and disbursements related to recording the examination in accordance with Tariff A.

• Marginal note:Examination in Canada

  (2) An oral examination that takes place in Canada shall be recorded by a person authorized to record examinations for discovery under the practice and procedure of a superior court in Canada.

• Marginal note:Examination outside Canada

  (3) An oral examination that takes place in a jurisdiction outside Canada shall be recorded by a person authorized to record

  • (a) court proceedings in that jurisdiction; or

  • (b) examinations for discovery under the practice and procedure of a superior court in Canada, if the parties consent.

• Marginal note:Examination to be recorded

  (4) A person who records an oral examination shall record it word for word, including any comment made by a solicitor, other than statements that the attending parties agree to exclude from the record.

Marginal note:Place of oral examination

• 90 (1) Where a person to be examined on an oral examination resides in Canada and the person and the parties cannot agree on where to conduct the oral examination, it shall be conducted in the place closest to the person’s residence where a superior court sits.

• Marginal note:Person residing outside Canada

  (2) Where a person to be examined on an oral examination resides outside Canada, the time, place, manner and expenses of the oral examination shall be as agreed on by the person and the parties or, on motion, as ordered by the Court.

• Marginal note:Travel expenses

  (3) No person is required to attend an oral examination unless reasonable travel expenses have been paid or tendered to the person.

Marginal note:Direction to attend

• 91 (1) A party who intends to conduct an oral examination shall serve a direction to attend, in Form 91, on the person to be examined and a copy thereof on every other party.

• Marginal note:Production for inspection at examination

  (2) A direction to attend may direct the person to be examined to produce for inspection at the examination

  • (a) in respect of an examination for discovery, all documents and other material in the possession, power or control of the party on behalf of whom the person is being examined that are relevant to the matters in issue in the action;

  • (b) in respect of the taking of evidence for use at trial, all documents and other material in that person’s possession, power or control that are relevant to the matters in issue in the action;

  • (c) in respect of a cross-examination on an affidavit, all documents and other material in that person’s possession, power or control that are relevant to the application or motion; and

  • (d) in respect of an examination in aid of execution, all documents and other material in that person’s possession, power or control that are relevant to the person’s ability to satisfy the judgment.

• Marginal note:Service of direction to attend

  (3) A direction to attend an oral examination shall be served

  • (a) where the person to be examined is an adverse party, at least six days before the day of the proposed examination;

  • (b) where the person to be examined is not a party to the proceeding, at least 10 days before the day of the proposed examination; or

  • (c) where the person is to be cross-examined on an affidavit filed in support of a motion, at least 24 hours before the hearing of the motion.

Marginal note:Swearing

92 A person to be examined on an oral examination shall be sworn before being examined.

Marginal note:Examining party to provide interpreter

• 93 (1) Where a person to be examined on an oral examination understands neither French nor English or is deaf or mute, the examining party shall arrange for the attendance and pay the fees and disbursements of an independent and competent person to accurately interpret everything said during the examination, other than statements that the attending parties agree to exclude from the record.

• Marginal note:Administrator to provide interpreter

  (2) Where an interpreter is required because the examining party wishes to conduct an oral examination in one official language and the person to be examined wishes to be examined in the other official language, on the request of the examining party made at least six days before the examination, the Administrator shall arrange for the attendance and pay the fees and disbursements of an independent and competent interpreter.

• Marginal note:Oath of interpreter

  (3) Before aiding in the examination of a witness, an interpreter shall take an oath, in Form 93, as to the performance of his or her duties.

Marginal note:Production of documents on examination

• 94 (1) Subject to subsection (2), a person who is to be examined on an oral examination or the party on whose behalf that person is being examined shall produce for inspection at the examination all documents and other material requested in the direction to attend that are within that person’s or party’s possession and control, other than any documents for which privilege has been claimed or for which relief from production has been granted under rule 230.

• Marginal note:Relief from production

  (2) On motion, the Court may order that a person to be examined or the party on whose behalf that person is being examined be relieved from the requirement to produce for inspection any document or other material requested in a direction to attend, if the Court is of the opinion that the document or other material requested is irrelevant or, by reason of its nature or the number of documents or amount of material requested, it would be unduly onerous to require the person or party to produce it.

Marginal note:Objections

• 95 (1) A person who objects to a question that is asked in an oral examination shall briefly state the grounds for the objection for the record.

• Marginal note:Preliminary answer

  (2) A person may answer a question that was objected to in an oral examination subject to the right to have the propriety of the question determined, on motion, before the answer is used at trial.

Marginal note:Improper conduct

• 96 (1) A person being examined may adjourn an oral examination and bring a motion for directions if the person believes that he or she is being subjected to an excessive number of questions or to improper questions, or that the examination is being conducted in bad faith or in an abusive manner.

• Marginal note:Adjournment to seek directions

  (2) A person conducting an oral examination may adjourn the examination and bring a motion for directions if the person believes answers to questions being provided are evasive or if the person being examined fails to produce a document or other material requested under rule 94.

• Marginal note:Sanctions

  (3) On a motion under subsection (1) or (2), the Court may sanction, through costs, a person whose conduct necessitated the motion or a person who unnecessarily adjourned the examination.

Marginal note:Failure to attend or misconduct

97 Where a person fails to attend an oral examination or refuses to take an oath, answer a proper question, produce a document or other material required to be produced or comply with an order made under rule 96, the Court may

• (a) order the person to attend or re-attend, as the case may be, at his or her own expense;

• (b) order the person to answer a question that was improperly objected to and any proper question arising from the answer;

• (c) strike all or part of the person’s evidence, including an affidavit made by the person;

• (d) dismiss the proceeding or give judgment by default, as the case may be; or

• (e) order the person or the party on whose behalf the person is being examined to pay the costs of the examination.

Marginal note:Contempt order

98 A person who does not comply with an order made under rule 96 or 97 may be found in contempt.

Written Examinations

Marginal note:Written examination

• 99 (1) A party who intends to examine a person by way of a written examination shall serve a list of concise, separately numbered questions in Form 99A for the person to answer.

• Marginal note:Objections

  (2) A person who objects to a question in a written examination may bring a motion to have the question struck out.

• Marginal note:Answers to written examination

  (3) A person examined by way of a written examination shall answer by way of an affidavit.

• Marginal note:Service of answers

  (4) An affidavit referred to in subsection (3) shall be in Form 99B and be served on every other party within 30 days after service of the written examination under subsection (1).

Marginal note:Application of oral examination rules

100 Rules 94, 95, 97 and 98 apply to written examinations, with such modifications as are necessary.

Joinder, Intervention and Parties

Joinder

Marginal note:Joinder of claims

• 101 (1) Subject to rule 302, a party to a proceeding may request relief against another party to the same proceeding in respect of more than one claim.

• Marginal note:Separate capacity

  (2) A party may request relief in a separate capacity in respect of different claims in a single proceeding.

• Marginal note:Interest in all relief not essential

  (3) Not all parties to a proceeding need have an interest in all relief claimed in the proceeding.

Marginal note:Multiple persons joined as parties

102 Two or more persons who are represented by the same solicitor may join in one proceeding as plaintiffs, applicants or appellants where

• (a) if separate proceedings were brought by each of them, a common question of law or fact would arise in all of the proceedings; or

• (b) the relief claimed, whether joint, several or alternative, arises from substantially the same facts or matter.

Marginal note:Misjoinder and nonjoinder

• 103 (1) No proceeding shall be defeated by reason of the misjoinder or nonjoinder of a person or party.

• Marginal note:Issues to be determined

  (2) In a proceeding in which a proper person or party has not been joined, the Court shall determine the issues in dispute so far as they affect the rights and interests of the persons who are parties to the proceeding.

Marginal note:Order for joinder or relief against joinder

• 104 (1) At any time, the Court may

  • (a) order that a person who is not a proper or necessary party shall cease to be a party; or

  • (b) order that a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined be added as a party, but no person shall be added as a plaintiff or applicant without his or her consent, signified in writing or in such other manner as the Court may order.

• Marginal note:Directions

  (2) An order made under subsection (1) shall contain directions as to amendment of the originating document and any other pleadings.

Marginal note:Consolidation of proceedings

105 The Court may order, in respect of two or more proceedings,

• (a) that they be consolidated, heard together or heard one immediately after the other;

• (b) that one proceeding be stayed until another proceeding is determined; or

• (c) that one of the proceedings be asserted as a counterclaim or cross-appeal in another proceeding.

Marginal note:Separate determination of claims and issues

106 Where the hearing of two or more claims or parties in a single proceeding would cause undue complication or delay or would prejudice a party, the Court may order that

• (a) claims against one or more parties be pursued separately;

• (b) one or more claims be pursued separately;

• (c) a party be compensated for, or relieved from, attending any part of the proceeding in which the party does not have an interest; or

• (d) the proceeding against a party be stayed on condition that the party is bound by any findings against another party.

Marginal note:Separate determination of issues

• 107 (1) The Court may, at any time, order the trial of an issue or that issues in a proceeding be determined separately.

• Marginal note:Court may stipulate procedure

  (2) In an order under subsection (1), the Court may give directions regarding the procedures to be followed, including those applicable to examinations for discovery and the discovery of documents.

Interpleader

Marginal note:Interpleader

• 108 (1) Where two or more persons make conflicting claims against another person in respect of property in the possession of that person and that person

  • (a) claims no interest in the property, and

  • (b) is willing to deposit the property with the Court or dispose of it as the Court directs,

  that person may bring an ex parte motion for directions as to how the claims are to be decided.

• Marginal note:Directions

  (2) On a motion under subsection (1), the Court shall give directions regarding

  • (a) notice to be given to possible claimants and advertising for claimants;

  • (b) the time within which claimants shall be required to file their claims; and

  • (c) the procedure to be followed in determining the rights of the claimants.

Intervention

Marginal note:Leave to intervene

• 109 (1) The Court may, on motion, grant leave to any person to intervene in a proceeding.

• Marginal note:Contents of notice of motion

  (2) Notice of a motion under subsection (1) shall

  • (a) set out the full name and address of the proposed intervener and of any solicitor acting for the proposed intervener; and

  • (b) describe how the proposed intervener wishes to participate in the proceeding and how that participation will assist the determination of a factual or legal issue related to the proceeding.

• Marginal note:Directions

  (3) In granting a motion under subsection (1), the Court shall give directions regarding

  • (a) the service of documents; and

  • (b) the role of the intervener, including costs, rights of appeal and any other matters relating to the procedure to be followed by the intervener.