Examination for Discovery (continued)
Information Subsequently Obtained
98 (1) Where a party has been examined for discovery or a person has been examined for discovery on behalf or in place of, or in addition to the party, and the party subsequently discovers that the answer to a question on the examination,
(a) was incorrect or incomplete when made, or
(b) is no longer correct and complete,
the party shall forthwith provide the information in writing to every other party.
(2) Where a party provides information in writing under subsection (1),
(a) the adverse party may require that the information be verified by affidavit of the party or be the subject of further examination for discovery, and
(b) the writing may be treated at a hearing as if it formed part of the original examination of the person examined.
(3) Where a party has failed to comply with subsection (1) or a requirement under paragraph (2)(a), and the information subsequently discovered is,
(a) favourable to that party’s case, the party may not introduce the information at the hearing, except with leave of the judge, or
(b) not favourable to that party’s case, the Court may give such direction as is just.
Discovery of Non-Parties with Leave
99 (1) The Court may grant leave, on such terms respecting costs and other matters as are just, to examine for discovery any person who there is reason to believe has information relevant to a material issue in the appeal, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation.
(2) Leave under subsection (1) shall not be granted unless the Court is satisfied that,
(a) the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person sought to be examined,
(b) it would be unfair to require the moving party to proceed to hearing without having the opportunity of examining the person, and
(c) the examination will not,
(i) unduly delay the commencement of the hearing of the proceeding,
(ii) entail unreasonable expense for other parties, or
(iii) result in unfairness to the person the moving party seeks to examine.
(3) A party who examines a person orally under this section shall, if requested, serve any party who attended or was represented on the examination with the transcript free of charge, unless the Court directs otherwise.
(4) The examining party is not entitled to recover the costs of the examination from another party unless the Court expressly directs otherwise.
(5) The evidence of a person examined under this section may not be read into evidence at the hearing under subsection 100(1).
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
Examinations Out of Court
Application of Sections 102 to 112
101 Sections 102 to 112 apply to all oral examinations for which provision is made in these rules including,
(a) an oral examination for discovery,
(b) the taking of evidence before hearing,
(c) the cross-examination on an affidavit, and
(d) the examination out of Court of a witness before hearing of a pending motion.
Mode of Examination
102 (1) An oral examination shall be held before a person agreed upon by the parties, who may be the verbatim reporter, or some other person if directed by the Court.
(2) Unless otherwise directed by the Court or the parties otherwise agree, an examination that takes place in Canada shall be under oath or upon affirmation as provided in the Canada Evidence Act.
(3) Unless otherwise directed by the Court, or the parties otherwise agree, an examination shall be recorded by a verbatim reporter and arrangements for the attendance of a reporter shall be made by the party conducting the examination, who shall pay the reporter’s fees.
(4) If the person being examined understands neither English nor French, or is deaf or mute, the examining party shall provide and pay the fees and disbursements of a competent and independent interpreter who shall take an oath or make an affirmation to interpret accurately the administration of the oath or affirmation, the questions to be put to the person being examined and the person’s answers.
(5) Where the examination is to be conducted in one of the official languages and the person to be examined would prefer to be examined in the other official language, the examining party shall advise the Registrar, and the Registrar shall then appoint an interpreter, at no cost to the parties, who shall take an oath or make an affirmation to interpret accurately the administration of the oath or affirmation and the questions to be put to the person being examined and the person’s answers.
(6) The transcript of the examination shall be certified as correct by the person who recorded the examination, but need not be read to or signed by the person examined.
- SOR/2004-100, s. 13(F)
- SOR/2008-303, s. 16
Manner of Requiring Attendance
103 (1) Where the person to be examined is a party to the proceeding, a notice to attend shall be served (Form 103(1)),
(a) on the party’s counsel of record, or
(b) where the party acts in person, on the party, personally and not by an alternative to personal service.
(2) Where a person is to be examined on behalf or in place of a party, a notice to attend shall be served,
(a) on the party’s counsel of record, or
(b) on the person to be examined, personally and not by an alternative to personal service.
(3) Where a person is to be cross-examined on an affidavit, a notice to attend shall be served,
(a) on the counsel for the party who filed the affidavit, or
(b) where the party who filed the affidavit acts in person, on the person to be cross-examined, personally and not by an alternative to personal service.
(4) Where the person to be examined,
(a) is neither a party nor a person referred to in subsection (2) or (3), and
(b) resides in Canada,
the person shall be served with a subpoena personally and not by an alternative to personal service and the provisions of section 141 apply with such modifications as are necessary. (Form 103(4))
(5) When a subpoena is served on a person, witness fees and expenses calculated in accordance with Schedule II, Tariff A shall be paid or tendered to the witness at the same time.
(6) Section 142 (compelling attendance of witness in custody) applies to the securing of the attendance for examination of a person in custody.
Notice of Time and Place
104 The person to be examined shall be given not less than ten days notice of the time and place of the examination, unless the Court directs otherwise.
Production of Documents on Examination
105 (1) Unless the parties otherwise agree, or the Court otherwise directs, the person to be examined shall bring to the examination and produce for inspection,
(a) on an examination for discovery, all documents as required by subsection 85(3), and
(b) on all other examinations, such documents as may be required by subsection 105(3).
(2) Where a person admits, on an examination, that he or she has possession or control of or power over any other document that relates to a matter in issue in the proceeding and that is not privileged, the person shall produce it for inspection by the examining party forthwith, if the person has the document at the examination, and if not, within ten days thereafter, unless the Court directs otherwise.
(3) The notice to attend for examination or subpoena may require the person to be examined to bring to the examination and produce for inspection,
(a) all documents and things relevant to any matter in issue in the proceeding that are in that person’s possession, control or power and that are not privileged, or
(b) such documents or things described in paragraph (a) as are specified in the notice or subpoena,
unless the Court directs otherwise.
- SOR/2008-303, s. 17
106 (1) A person being examined for discovery may be re-examined by his or her own counsel.
(2) A person being cross-examined on his or her affidavit may be re-examined by his or her own counsel.
(3) The re-examination shall take place immediately after the examination or cross-examination and shall not take the form of a cross-examination.
Objections and Rulings
107 (1) Where a question is objected to, the objector shall state briefly the reason for the objection, and the question and the brief statement shall be recorded.
(2) A question that is objected to may be answered with the objector’s consent, and where the question is answered, a ruling shall be obtained from the Court before the evidence is used at a hearing.
(3) A ruling on the propriety of a question that is objected to and not answered may be obtained on motion to the Court.
Improper Conduct of Examination
108 (1) An examination may be adjourned by the person being examined or by a party present or represented at the examination, for the purpose of moving for directions with respect to the continuation of the examination or for an order terminating the examination or limiting its scope, where,
(a) the right to examine is being abused by an excess of improper questions or interfered with by an excess of improper interruptions or objections,
(b) the examination is being conducted in bad faith, or in an unreasonable manner so as to annoy, embarrass or oppress the person being examined,
(c) many of the answers to the questions are evasive, unresponsive or unduly lengthy, or
(d) there has been a neglect or improper refusal to produce a relevant document on the examination.
(2) Where the Court finds that,
(a) a person’s improper conduct necessitated a motion under subsection (1), or
(b) a person improperly adjourned an examination under subsection (1),
the Court may direct the person to pay personally and forthwith the costs of the motion, any costs thrown away and the costs of any continuation of the examination and the Court may fix the costs and give such other direction as is just.
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.
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