Examinations Out of Court (continued)
Manner of Requiring Attendance
(2) Where a person is to be examined on behalf or in place of a party, a notice to attend shall be served,
(3) Where a person is to be cross-examined on an affidavit, a notice to attend shall be served,
(4) Where the person to be examined,
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
(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
(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
(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
(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.
Examination Where Person Outside Canada
(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)
- Date modified: