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Federal Courts Rules (SOR/98-106)

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Regulations are current to 2022-11-16 and last amended on 2022-01-13. Previous Versions

PART 4Actions (continued)

Discovery and Inspection (continued)

Discovery of Documents (continued)

Marginal note:Deponent of affidavit of documents

  •  (1) The deponent of an affidavit of documents shall be

    • (a) where the party is an individual who is not under a legal disability, the party;

    • (b) where the party is an individual under a legal disability, a person appointed under rule 115;

    • (c) where the party is a corporation or an unincorporated association, an authorized representative of the corporation or association; or

    • (d) where the party is the Crown, an authorized representative of the Crown.

  • Marginal note:Obligations of deponent

    (2) The deponent of an affidavit of documents shall, before making the affidavit, become informed by making reasonable inquiries of any present or former officer, servant, agent or employee of the party, including any who are outside Canada, who might reasonably be expected to have knowledge relating to any matter in question in the action.

  • Marginal note:Obligations of solicitor

    (3) The solicitor of record for a party shall

    • (a) explain to the deponent of an affidavit of documents the necessity of making full disclosure under rule 223 and the possible consequences of failing to do so; and

    • (b) certify on the affidavit of documents or on a document attached to it that those explanations have been given.

Marginal note:Order for disclosure

 On motion, the Court may order a party to disclose in an affidavit of documents all relevant documents that are in the possession, power or control of

  • (a) where the party is an individual, any corporation that is controlled directly or indirectly by the party; or

  • (b) where the party is a corporation,

    • (i) any corporation that is controlled directly or indirectly by the party,

    • (ii) any corporation or individual that directly or indirectly controls the party, or

    • (iii) any corporation that is controlled directly or indirectly by a person who also directly or indirectly controls the party.

Marginal note:Need for continuing disclosure

  •  (1) A party who becomes aware that its affidavit of documents is inaccurate or deficient shall, without delay, serve a supplementary affidavit of documents correcting the inaccuracy or deficiency.

  • Marginal note:Exception

    (2) A document produced and marked as an exhibit on an examination need not be included in a supplementary affidavit of documents.

Marginal note:Sanctions

 On motion, where the Court is satisfied that an affidavit of documents is inaccurate or deficient, the Court may inspect any document that may be relevant and may order that

  • (a) the deponent of the affidavit be cross-examined;

  • (b) an accurate or complete affidavit be served and filed;

  • (c) all or part of the pleadings of the party on behalf of whom the affidavit was made be struck out; or

  • (d) that the party on behalf of whom the affidavit was made pay costs.

Marginal note:Inspection of documents

  •  (1) Subject to rule 230, a party who has served an affidavit of documents on another party shall, during business hours, allow the other party to inspect and, where practicable, to copy any document referred to in the affidavit that is not privileged, if the document is

    • (a) in the possession of the party; or

    • (b) in the power or control of the party and the other party requests that it be made available because the other party cannot otherwise inspect or copy it.

  • Marginal note:Copies of documents

    (2) A party who has served an affidavit of documents on another party shall, at the request of the other party, deliver to the other party a copy of any document referred to in subsection (1), if the other party pays the cost of the copies and of their delivery.

Marginal note:Order for production and inspection

 On motion, the Court may order the production for inspection and copying by a party of any document referred to in subsection 228(1), at a time and place and in a manner set out in the order.

Marginal note:Relief from production

 On motion, the Court may relieve a party from production for inspection of any document, having regard to

  • (a) the issues in the case and the order in which they are likely to be resolved; and

  • (b) whether it would be unduly onerous to require the person to produce the document.

Marginal note:Disclosure or production not admission

 The disclosure of a document or its production for inspection does not constitute an admission of its authenticity or admissibility in the action.

Marginal note:Undisclosed or privileged document

  •  (1) Unless the Court orders otherwise or discovery of documents has been waived by the parties, no document shall be used in evidence unless it has been

    • (a) disclosed on a party’s affidavit of documents as a document for which no privilege has been claimed;

    • (b) produced for inspection by a party, or a person examined on behalf of one of the parties, on or subsequent to examinations for discovery; or

    • (c) produced by a witness who is not, in the opinion of the Court, under control of the party.

  • Marginal note:Exception

    (2) Subsection (1) does not apply to a document that is used solely as a foundation for, or as a part of a question in, cross-examination or re-examination.

  • SOR/2010-176, s. 3(F)

Marginal note:Production from non-party with leave

  •  (1) On motion, the Court may order the production of any document that is in the possession of a person who is not a party to the action, if the document is relevant and its production could be compelled at trial.

  • Marginal note:Personal service on non-party

    (2) Notice of a motion for an order under subsection (1) shall be personally served on the person who is in possession of the document.

  • Marginal note:Preparation of certified copy

    (3) The Court may, in an order under subsection (1), give directions for the preparation of a certified copy of the document to be used instead of the original.

Examinations for Discovery

Marginal note:Both oral and written examination

  •  (1) A party may conduct an examination for discovery by way of both an oral and a written examination only with leave of the Court or with the consent of the person being examined and all other parties entitled to examine that person.

  • Marginal note:Oral examination by two or more parties

    (2) Where two or more parties are entitled to examine a person, the examination for discovery shall be by way of an oral examination, except with leave of the Court or with the consent of the person being examined and all other parties entitled to examine that person.

Marginal note:Single examination

 Except with leave of the Court, a party may examine for discovery any adverse party only once.

Marginal note:When examination may be initiated

  •  (1) Subject to subsection (2), a party may examine an adverse party for discovery only if

    • (a) the pleadings are closed and the examining party has served its affidavit of documents;

    • (b) the pleadings are closed and the adverse party consents to the examination being conducted before the examining party has served its affidavit of documents; or

    • (c) the adverse party is in default of serving and filing its pleadings and leave of the Court has been obtained.

  • Marginal note:Examination by defendant

    (2) Subject to subsection (3), a defendant may examine a plaintiff at any time after the statement of claim is filed.

  • Marginal note:Multiple defendants

    (3) Where two or more defendants are represented by the same solicitor, none of them may examine the plaintiff before filing a defence unless all of them examine the plaintiff at the same time.

Marginal note:Representative selected

  •  (1) A corporation, partnership or unincorporated association that is to be examined for discovery shall select a representative to be examined on its behalf.

  • Marginal note:Examination of Crown

    (2) Where the Crown is to be examined for discovery, the Attorney General of Canada shall select a representative to be examined on its behalf.

  • Marginal note:Order for substitution

    (3) The Court may, on the motion of a party entitled to examine a person selected under subsection (1) or (2), order that some other person be examined.

  • Marginal note:Examination of assignee

    (4) Where an assignee is a party to an action, the assignor may also be examined for discovery.

  • Marginal note:Examination of trustee in bankruptcy

    (5) Where a trustee in bankruptcy is a party to an action, the bankrupt may also be examined for discovery.

  • Marginal note:Examination of party under legal disability

    (6) If a party intends to examine for discovery a person who is appointed under paragraph 115(1)(b) to represent a person under a legal disability, the party may, with leave of the Court, also examine the person under a legal disability.

  • Marginal note:Examination of nominal party

    (7) Where a party intends to examine for discovery a person bringing or defending an action on behalf of another person who is not a party, with leave of the Court, the party may also examine that other person.

  • SOR/2013-18, s. 5

Marginal note:Examination of non-parties with leave

  •  (1) A party to an action may bring a motion for leave to examine for discovery any person not a party to the action, other than an expert witness for a party, who might have information on an issue in the action.

  • Marginal note:Personal service on non-party

    (2) On a motion under subsection (1), the notice of motion shall be served on the other parties and personally served on the person to be examined.

  • Marginal note:Where Court may grant leave

    (3) The Court may, on a motion under subsection (1), grant leave to examine a person and determine the time and manner of conducting the examination, if it is satisfied that

    • (a) the person may have information on an issue in the action;

    • (b) the party has been unable to obtain the information informally from the person or from another source by any other reasonable means;

    • (c) it would be unfair not to allow the party an opportunity to question the person before trial; and

    • (d) the questioning will not cause undue delay, inconvenience or expense to the person or to the other parties.

Marginal note:Expenses of person examined

  •  (1) Unless the Court orders otherwise, a party who is granted leave to examine a person under rule 238 shall pay to the person

    • (a) at least 10 days before the day of the examination, an amount sufficient to cover reasonable travel expenses; and

    • (b) within 10 days after the examination, an amount sufficient to cover any reasonable travel expenses in excess of the initial payment.

  • Marginal note:Assistance of solicitor

    (2) A person being examined under rule 238 is entitled to be assisted by a solicitor.

  • Marginal note:Costs of solicitor

    (3) On motion, the Court may, in special circumstances, order that the costs of a solicitor assisting a person to be examined under rule 238 be included in the amounts paid under subsection (1).

  • Marginal note:Questioning by other parties

    (4) A person being examined under rule 238 may also be questioned by any other party.

  • Marginal note:Cross-examination or hearsay

    (5) A person being examined under rule 238 shall not be cross-examined and shall not be required to give hearsay evidence.

  • Marginal note:Use as evidence at trial

    (6) The testimony of a person who was examined under rule 238 shall not be used as evidence at trial but, if the person is a witness at trial, it may be used in cross-examination in the same manner as any written statement of a witness.

Marginal note:Scope of examination

 A person being examined for discovery shall answer, to the best of the person’s knowledge, information and belief, any question that

  • (a) is relevant to any unadmitted allegation of fact in a pleading filed by the party being examined or by the examining party; or

  • (b) concerns the name or address of any person, other than an expert witness, who might reasonably be expected to have knowledge relating to a matter in question in the action.

Marginal note:Obligation to inform self

 Subject to paragraph 242(1)(d), a person who is to be examined for discovery, other than a person examined under rule 238, shall, before the examination, become informed by making inquiries of any present or former officer, servant, agent or employee of the party, including any who are outside Canada, who might be expected to have knowledge relating to any matter in question in the action.

Marginal note:Objections permitted

  •  (1) A person may object to a question asked in an examination for discovery on the ground that

    • (a) the answer is privileged;

    • (b) the question is not relevant to any unadmitted allegation of fact in a pleading filed by the party being examined or by the examining party;

    • (c) the question is unreasonable or unnecessary; or

    • (d) it would be unduly onerous to require the person to make the inquiries referred to in rule 241.

  • Marginal note:Objections not permitted

    (2) A person other than a person examined under rule 238 may not object to a question asked in an examination for discovery on the ground that

    • (a) the answer would be evidence or hearsay;

    • (b) the question constitutes cross-examination.

Marginal note:Limit on examination

 On motion, the Court may limit an examination for discovery that it considers to be oppressive, vexatious or unnecessary.

Marginal note:Examined party to be better informed

  •  (1) Where a person being examined for discovery, other than a person examined under rule 238, is unable to answer a question, the examining party may require the person to become better informed and may conclude the examination, subject to obtaining answers to any remaining questions.

  • Marginal note:Further answers

    (2) A person being examined who is required to become better informed shall provide the information sought by the examining party by submitting to a continuation of the oral examination for discovery in respect of the information or, where the parties agree, by providing the information in writing.

  • Marginal note:Information deemed part of examination

    (3) Information provided under subsection (2) is deemed to be part of the examination for discovery.

 
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