Discovery of Documents (continued)
83 (1) The Court may direct a party to disclose all relevant documents in the possession, control or power of the party’s subsidiary or affiliated corporation or of a corporation controlled directly or indirectly by the party and to produce for inspection all such documents that are not privileged.
(2) The direction under this section may be limited to such documents or classes of documents, or to such of the matters in question as may be specified in it.
Description of Documents
84 A list of documents made in compliance with section 81 or 82 shall enumerate the documents in a convenient order as briefly as possible but describing each of them or, in the case of bundles of documents of the same nature, each bundle shall be described sufficiently to enable it to be identified.
85 (1) A party who has delivered a list of documents to any other party shall allow the other party to inspect and copy the documents listed, except those which he objects to produce, and when he delivers the list he shall also deliver a notice stating a place where the documents may be inspected and copied during normal business hours.
(2) Where a party is entitled to inspect the documents to which reference is made in the list of documents, the other party shall, on request and on payment in advance of the cost of reproduction and delivery, deliver copies of any of the documents.
(3) All documents listed in a party’s list of documents under section 81 or under section 82 and that are not privileged, and all documents previously produced for inspection by the party shall, without notice, subpoena or direction, be taken to and produced at,
(a) the examination for discovery of the party or a person on behalf of, in place of, or in addition to the party, and
(b) the hearing of the appeal,
unless the parties otherwise agree.
Document in Possession of Non-Party
86 (1) When a document is in the possession of a person not a party to the appeal and the production of such document at a hearing might be compelled, the Court may at the instance of any party, on notice to such person, direct the production of a certified copy which may be used for all purposes in lieu of the original.
(2) Where an application under subsection (1) is in respect of a document in the possession of the Crown, the notice to the Crown shall be directed to, and served on, the Deputy Attorney General of Canada.
87 Where, after the list of documents has been served under either section 81 or section 82, it comes to the attention of the party serving it that the list has for any reason become inaccurate or incomplete, that party shall serve forthwith a supplementary list specifying the inaccuracy or describing the document.
Where Affidavit Incomplete or Privilege Improperly Claimed
88 Where the Court is satisfied by any evidence that a relevant document in a party’s possession, control or power may have been omitted from the party’s affidavit of documents, or that a claim of privilege may have been improperly made, the Court may,
(a) order cross-examination on the affidavit of documents,
(b) order service of a further and better affidavit of documents,
(c) order the disclosure or production for inspection of the document or a part of the document, if it is not privileged, and
(d) inspect the document for the purpose of determining its relevance or the validity of a claim of privilege.
Use at Hearing
89 (1) Unless the Court otherwise directs, except with the consent in writing of the other party or where discovery of documents has been waived by the other party, no document shall be used in evidence by a party unless
(a) reference to it appears in the pleadings, or in a list or an affidavit filed and served by a party to the proceeding,
(b) it has been produced by one of the parties, or some person being examined on behalf of one of the parties, at the examination for discovery, or
(c) it has been produced by a witness who is not, in the opinion of the Court, under the control of the party.
(2) Unless the Court otherwise directs, subsection (1) does not apply to a document that is used solely as a foundation for or as part of a question in cross-examination or re-examination.
- SOR/2008-303, s. 12
Disclosure or Production not Admission of Relevance
90 The disclosure or production of a document for inspection shall not be taken as an admission of its relevance or admissibility.
Effect of Failure to Disclose or Produce for Inspection
91 Where a person or party who is required to make discovery of documents under sections 78 to 91 fails or refuses without reasonable excuse to make a list or affidavit of documents or to disclose a document in a list or affidavit of documents or to produce a document for inspection and copying, or to comply with a judgment of the Court in relation to the production or inspection of documents, the Court may,
(a) direct or permit the person or party to make a list or affidavit of documents, or a further list or affidavit of documents,
(b) direct the person or party to produce a document for inspection and copying,
(c) except where the failure or refusal is by a person who is not a party, dismiss the appeal or allow the appeal as the case may be,
(d) direct any party or any other person to pay personally and forthwith the costs of the motion, any costs thrown away and the costs of any continuation of the discovery necessitated by the failure to disclose or produce, and
(e) give such other direction as is just.
Examination for Discovery
92 An examination for discovery may take the form of an oral examination or, at the option of the examining party, an examination by written questions and answers, but the examining party is not entitled to subject a person to both forms of examination except with leave of the Court.
Who May be Examined
(2) A party to be examined, other than an individual or the Crown, shall select a knowledgeable current or former officer, director, member or employee, to be examined on behalf of that party, but, if the examining party is not satisfied with that person, the examining party may apply to the Court to name some other person.
(3) The Crown, when it is the party to be examined, shall select a knowledgeable current or former officer, servant or employee, nominated by the Deputy Attorney General of Canada, to be examined on behalf of that party, but, if the examining party is not satisfied with that person, the examining party may apply to the Court to name some other person.
(4) If a current or former officer, director or employee of a corporation or of the Crown has been examined, no other person may be examined without leave of the Court.
(5) Where an appeal is brought by a party under a legal disability,
(a) the representative for that party may be examined in place of that party; or
(b) at the option of the examining party, the party under a legal disability may be examined if that party is competent to give evidence.
If the representative referred to in paragraph (a) is a public official, that person may be examined only with leave of the Court.
(6) Where an appeal is brought by an assignee, the assignor may be examined in addition to the assignee.
(7) Where an appeal is brought by a trustee of the estate of a bankrupt, the bankrupt may be examined in addition to the trustee.
(8) Where a party is entitled to examine for discovery,
but the Court is satisfied that multiple examinations would be oppressive, vexatious or unnecessary, the Court may impose such limits on the right of discovery as are just.
- SOR/2007-142, s. 11
- SOR/2008-303, s. 13
When May Examination be Held
94 (1) A party who seeks to examine an appellant for discovery may serve a notice to attend under section 103 or a list of written questions under section 113 only after the reply has been filed and served and, unless the parties agree otherwise, a list of documents under section 81 or 82 has been filed and served.
(2) However, where it appears to the Court that it would be just to allow a party to examine an appellant for discovery other than in accordance with subsection (1) it may so direct.
(3) A party who seeks to examine a respondent for discovery may serve a notice to attend under section 103 or a list of written questions under section 113 only after the respondent has delivered a reply or where the time to do so has expired and, unless the parties agree otherwise, after the examining party has served a list of documents under section 81 or 82.
- SOR/2007-142, s. 12
Scope of Examination
95 (1) A person examined for discovery shall answer, to the best of that person’s knowledge, information and belief, any proper question relevant to any matter in issue in the proceeding or to any matter made discoverable by subsection (3) and no question may be objected to on the ground that
(2) Prior to the examination for discovery, the person to be examined shall make all reasonable inquiries regarding the matters in issue from all of the party’s officers, servants, agents and employees, past or present, either within or outside Canada and, if necessary, the person being examined for discovery may be required to become better informed and for that purpose the examination may be adjourned.
(3) [Repealed, SOR/2014-26, s. 10]
(4) A party may on an examination for discovery obtain disclosure of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the proceeding, unless the Court orders otherwise.
- SOR/93-96, s. 13
- SOR/2008-303, s. 14
- SOR/2014-26, s. 10
- Date modified: