Examinations Out of Court (continued)
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)
Procedure on Examination for Discovery by Written Questions
113 An examination for discovery by written questions and answers shall be conducted by serving a list of the questions to be answered on the person to be examined. (Form 113)
114 Written questions shall be answered by the affidavit of the person being examined, served on the examining party within thirty days after service of the list of questions. (Form 114)
115 An objection to answering a written question shall be made in the affidavit of the person being examined, with a brief statement of the reason for the objection.
Failure to Answer
116 (1) Where the examining party is not satisfied with an answer or where an answer suggests a new line of questioning, the examining party may, within fifteen days after receiving the answer, serve a further list of written questions which shall be answered within thirty days after service.
(2) Where the person being examined refuses or fails to answer a proper question or where the answer to a question is insufficient, the Court may direct the person to answer or give a further answer to the question or to answer any other question either by affidavit or on oral examination.
(3) Where the Court is satisfied, on reading all the answers to the written questions, that some or all of them are evasive, unresponsive or otherwise unsatisfactory, the Court may direct the person examined to submit to oral examination on such terms respecting costs and other matters as are just.
(4) Where a person refuses or fails to answer a proper question on a written examination or to produce a document which that person is required to produce, the Court may, in addition to imposing the sanctions provided in subsections (2) and (3),
(a) if the person is a party or a person examined on behalf of or in place of a party, dismiss the appeal or allow the appeal as the case may be,
(b) strike out all or part of the person’s evidence, and
(c) give such other direction as is just.
Improper Conduct of Written Examination
117 On motion by the person being examined, or by any party, the Court may terminate the written examination or limit its scope where,
(a) the right to examine is being abused by an excess of improper questions, or
(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.
Filing Questions and Answers
118 Section 111 applies, with necessary modifications, to the filing of written questions and answers for the use of the Court.
Taking Evidence Before Hearing
119 (1) A party who intends to introduce the evidence of a person at a hearing may, with leave of the Court or the consent of the parties, examine the person on oath or affirmation before the hearing for the purpose of having the person’s testimony available to be tendered as evidence at the hearing.
(2) In exercising its discretion to direct an examination under subsection (1), the Court shall take into account,
(a) the convenience of the person whom the party seeks to examine,
(b) the possibility that the person will be unavailable to testify at the hearing by reason of death, infirmity or sickness,
(c) the possibility that the person will be beyond the jurisdiction of the Court at the time of the hearing,
(d) the expense of bringing the person to the hearing,
(e) whether the witness ought to give evidence in person at the hearing, and
(f) any other relevant consideration.
(3) Before moving for leave to examine an expert witness under subsection (1), the moving party shall serve on all other parties the report of the expert witness referred to in subsection 145(7) unless the Court directs otherwise.
- SOR/2014-26, s. 11
120 (1) Subject to subsection (2), sections 101 to 112 apply to the examination of a witness under section 119, unless the Court directs otherwise.
(2) A witness examined under section 119 may be examined, cross-examined and re-examined in the same manner as a witness at a hearing.
Examinations Outside Canada
121 Where a direction is given under section 119 for the examination of a witness outside of Canada, the direction shall, if the moving party requests it, provide for the issuing of a commission and letter of request under section 112 and for the taking of the evidence of the witness and, on consent of the parties, any other witness in the same jurisdiction, and the direction shall be in Form 112(2)(b)A — DIRECTION.
Use at Hearing
122 (1) Any party may use at the hearing the transcript and a videotape or other recording of an examination under sections 119 and 121 as the evidence of the witness, unless the Court directs otherwise for any sufficient reason.
(2) A witness whose evidence has been taken under section 119 or 121 shall not be called to give evidence at the hearing, except with leave of the judge.
(3) Use of evidence taken under section 119 or 121 is subject to any ruling by the judge respecting its admissibility.
(4) The transcript and a videotape or other recording may be filed with the Court at the hearing and need not be read or played at the hearing unless a party or the judge requires it.
Listing for Hearing
How Appeal is Set Down for Hearing
123 (1) After the close of pleadings, any party to an appeal, who is not in default under these rules or a judgment of the Court and who is ready for hearing, may apply in writing to the Registrar to fix the time and place of hearing.
(2) Where all parties agree on the making of a joint application, it shall be made in Form 123.
(3) Where all parties do not agree on making a joint application, the party making the application shall file a memorandum containing the information, as far as the applicant is concerned, required in Form 123 and shall serve a copy of the memorandum on all other parties and those parties shall, within ten days of service of the memorandum, file and serve on the party applying a similar memorandum.
(4) Subject to any direction by the Court, the Registrar, or a person designated by the Registrar or by the Chief Justice, may fix the time and place for the hearing
(a) on receipt of a joint application;
(b) on receipt of an application and of a separate memorandum from each party; or
(c) on receipt of an application and after the time has expired for the filing of a separate memorandum by each party.
(4.1) Despite subsection (4), the Court may, on its own initiative, fix the time and place for the hearing.
(5) The Registrar shall forthwith send, by registered mail, notice of the time and place fixed for the hearing to all parties.
(6) If the time and place for a hearing have been fixed on the joint application of the parties, the hearing shall not be adjourned unless the Court is satisfied that there are special circumstances that justify the adjournment and it is in the interests of justice to adjourn it.
- SOR/93-96, s. 14
- SOR/95-113, s. 5
- SOR/2004-100, s. 15
- SOR/2014-26, s. 12
Litigation Process Conference
- SOR/2014-26, s. 13
124 [Repealed, SOR/2004-100, s. 16]
125 (1) If an appeal has not been set down for hearing or terminated by any means within 60 days after the filing of the reply or after the last day for the filing of the reply, whichever is later, subject to any direction by the Chief Justice, the Registrar or a person designated by the Registrar or by the Chief Justice may serve on the Deputy Attorney General of Canada and on the counsel of record for the appellant or, if the appellant acts in person, on the appellant, a notice of status hearing at least 30 days before the date fixed for that hearing, and the hearing shall be held before a judge.
(2) A counsel who receives a notice of status hearing shall forthwith give a copy of the notice to that counsel’s client.
(3) Unless the appeal has been set down for hearing or terminated by any means before the date fixed for the status hearing, the counsel of record shall attend the status hearing and the parties may attend the hearing.
(4) Where a party represented by counsel does not attend the hearing, that counsel shall file proof that a copy of the notice was given to the party.
(5) At the status hearing,
(a) if a reply has been filed, the judge may
(i) set time periods for the completion of any remaining steps in the appeal,
(ii) dismiss the appeal for delay, or
(iii) make any order or give any other direction that is appropriate; and
(b) if a reply has not been filed, the judge may,
(i) direct that the appeal be allowed if the facts alleged in the notice of appeal entitle the appellant to the judgment sought,
(ii) direct that the appeal be heard on the basis that the facts alleged in the notice of appeal are presumed to be true and make a direction regarding the hearing fee, or
(iii) make any order or give any other direction that is appropriate.
(6) The presumption in subparagraph (5)(b)(ii) is a rebuttable presumption.
(7) Despite subsection (1), the Court may, on its own initiative or at the request of a party, at any time after the expiry of the period for serving a notice of status hearing provided in that subsection, direct counsel for the parties, either with or without the parties, and any party not represented by counsel, to appear before a judge who may
(a) set time periods for the completion of any remaining steps before the hearing of the appeal;
(b) determine the advisability of amending the pleadings;
(c) attempt to identify any issue and shorten the hearing;
(d) attempt to obtain admissions of fact or documents;
(e) consider directing that a settlement conference be held regarding any issue in the appeal;
(f) determine if the parties are ready to proceed with the hearing of the appeal by
(i) identifying the parties’ potential witnesses and the documents which may be filed as exhibits,
(ii) confirming that all required steps in the appeal have been completed before setting down the appeal for hearing,
(iii) determining the approximate duration of the hearing, and
(iv) fixing a time and place for the hearing; or
(g) make any other order or give any direction that the judge considers appropriate.
(8) If a party fails to comply with an order made or direction given under subsection (5) or (7) or fails to appear at a status hearing at the time and place fixed for it, the Court may, on application or on its own initiative, allow or dismiss the appeal or make any other order that is appropriate.
- SOR/93-96, s. 15
- SOR/95-113, s. 6
- SOR/99-209, s. 6
- SOR/2004-100, s. 17
- SOR/2007-142, s. 13
- SOR/2014-26, s. 14
126 (1) The Chief Justice may, on his or her own initiative or at the request of a party, at any time order that an appeal or a group of appeals be subject to case management and may designate one or more judges to act as the case management judge.
(2) The case management judge shall convene a case management conference as soon as possible after the close of pleadings for the purpose of establishing, in conjunction with the parties, a timetable for the conduct of the appeal or group of appeals.
(3) The case management judge may deal with all issues that arise prior to the hearing of the appeal, including by
(a) convening case management conferences as necessary, either on their initiative or at the request of a party;
(b) giving any directions that are necessary for the just, most expeditious and least expensive determination of the appeal on its merits, including consolidating two or more appeals or parts of appeals that raise common issues or deal with common facts;
(c) determining all motions that are made prior to the appeal hearing date or arranging for them to be heard by another judge;
(d) despite any other time requirement provided in these rules, setting the time for the completion of any steps in the appeal; and
(e) making any order or giving any direction that the case management judge considers appropriate.
(4) If a party fails to comply with the time requirements set out in a timetable established under this section or with any requirement of these rules, or fails to attend any case management conference, the case management judge may
(a) strike out any document or portion of a document filed by that party;
(b) dismiss the appeal or give judgment in favour of the appellant;
(c) amend the timetable in order to allow the party to comply with it;
(d) order the party to pay costs, either in a fixed amount or in an amount to be taxed; or
(e) make any other order that the case management judge considers just in the circumstances.
(5) A case management judge hearing any motion may dispense in whole or in part with the requirement to file a notice of motion together with the affidavits or other documentary material.
(6) A case management judge shall not preside at the hearing of the appeal except with the consent of the parties.
- SOR/95-113, s. 7
- SOR/2004-100, s. 18
- SOR/2014-26, s. 15
- Date modified: