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Federal Courts Rules (SOR/98-106)

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Regulations are current to 2019-11-19 and last amended on 2019-06-17. Previous Versions

PART 4Actions (continued)

Striking Out Pleadings

Marginal note:Motion to strike

  •  (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it

    • (a) discloses no reasonable cause of action or defence, as the case may be,

    • (b) is immaterial or redundant,

    • (c) is scandalous, frivolous or vexatious,

    • (d) may prejudice or delay the fair trial of the action,

    • (e) constitutes a departure from a previous pleading, or

    • (f) is otherwise an abuse of the process of the Court,

    and may order the action be dismissed or judgment entered accordingly.

  • Marginal note:Evidence

    (2) No evidence shall be heard on a motion for an order under paragraph (1)(a).

Discovery and Inspection

Discovery of Documents

Definition of document

  •  (1) In rules 223 to 232 and 295, document includes an audio recording, a video recording, a film, a photograph, a chart, a graph, a map, a plan, a survey and a book of account, as well as data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device.

  • Marginal note:Interpretation

    (2) For the purposes of rules 223 to 232 and 295, a document of a party is relevant if the party intends to rely on it or if the document tends to adversely affect the party’s case or to support another party’s case.

  • SOR/2015-21, s. 17

Marginal note:Time for service of affidavit of documents

  •  (1) Every party shall serve an affidavit of documents on every other party within 30 days after the close of pleadings.

  • Marginal note:Contents

    (2) An affidavit of documents shall be in Form 223 and shall contain

    • (a) separate lists and descriptions of all relevant documents that

      • (i) are in the possession, power or control of the party and for which no privilege is claimed,

      • (ii) are or were in the possession, power or control of the party and for which privilege is claimed,

      • (iii) were but are no longer in the possession, power or control of the party and for which no privilege is claimed, and

      • (iv) the party believes are in the possession, power or control of a person who is not a party to the action;

    • (b) a statement of the grounds for each claim of privilege in respect of a document;

    • (c) a description of how the party lost possession, power or control of any document and its current location, as far as the party can determine;

    • (d) the identity of each person referred to in subparagraph (a)(iv), including the person’s name and address, if known;

    • (e) a statement that the party is not aware of any relevant document, other than those that are listed in the affidavit or are or were in the possession, power or control of another party to the action; and

    • (f) an indication of the time and place at which the documents referred to in subparagraph (a)(i) may be inspected.

  • Marginal note:Document within party’s power or control

    (3) For the purposes of subsection (2), a document shall be considered to be within a party’s power or control if

    • (a) the party is entitled to obtain the original document or a copy of it; and

    • (b) no adverse party is so entitled.

  • Marginal note:Bundle of documents

    (4) A party may treat a bundle of documents as a single document for the purposes of an affidavit of documents if

    • (a) the documents are all of the same nature; and

    • (b) the bundle is described in sufficient detail to enable another party to clearly ascertain its contents.

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.

 
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