Federal Courts Rules (SOR/98-106)

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Regulations are current to 2019-03-27 and last amended on 2015-01-30. Previous Versions

PART 3Rules Applicable to All Proceedings (continued)

Affidavit Evidence and Examinations (continued)

Affidavits (continued)

Marginal note:Content of affidavits

  •  (1) Affidavits shall be confined to facts within the deponent’s personal knowledge except on motions, other than motions for summary judgment or summary trial, in which statements as to the deponent’s belief, with the grounds for it, may be included.

  • Marginal note:Affidavits on belief

    (2) Where an affidavit is made on belief, an adverse inference may be drawn from the failure of a party to provide evidence of persons having personal knowledge of material facts.

  • SOR/2009-331, s. 2.

Marginal note:Use of solicitor's affidavit

 Except with leave of the Court, a solicitor shall not both depose to an affidavit and present argument to the Court based on that affidavit.

Marginal note:Cross-examination on affidavits

 A party to a motion or application may cross-examine the deponent of an affidavit served by an adverse party to the motion or application.

Marginal note:When cross-examination may be made

  •  (1) A party seeking to cross-examine the deponent of an affidavit filed in a motion or application shall not do so until the party has served on all other parties every affidavit on which the party intends to rely in the motion or application, except with the consent of all other parties or with leave of the Court.

  • Marginal note:Filing of affidavit after cross-examination

    (2) A party who has cross-examined the deponent of an affidavit filed in a motion or application may not subsequently file an affidavit in that motion or application, except with the consent of all other parties or with leave of the Court.

Marginal note:Due diligence

 A party who intends to cross-examine the deponent of an affidavit shall do so with due diligence.

Marginal note:Transcript of cross-examination on affidavit

 Unless the Court orders otherwise, a party who conducts a cross-examination on an affidavit shall order and pay for a transcript thereof and send a copy to each other party.

Examinations out of Court

General

Definition of examination

 In rules 88 to 100, examination means

  • (a) an examination for discovery;

  • (b) the taking of evidence out of court for use at trial;

  • (c) a cross-examination on an affidavit; or

  • (d) an examination in aid of execution.

Marginal note:Manner of examination

  •  (1) Subject to rules 234 and 296, an examination may be conducted orally or in writing.

  • Marginal note:Electronic communications

    (2) The Court may order that an examination out of court be recorded by video recording or conducted by video-conference or any other form of electronic communication.

Oral Examinations

Marginal note:Oral examination

  •  (1) A party requesting an oral examination shall pay the fees and disbursements related to recording the examination in accordance with Tariff A.

  • Marginal note:Examination in Canada

    (2) An oral examination that takes place in Canada shall be recorded by a person authorized to record examinations for discovery under the practice and procedure of a superior court in Canada.

  • Marginal note:Examination outside Canada

    (3) An oral examination that takes place in a jurisdiction outside Canada shall be recorded by a person authorized to record

    • (a) court proceedings in that jurisdiction; or

    • (b) examinations for discovery under the practice and procedure of a superior court in Canada, if the parties consent.

  • Marginal note:Examination to be recorded

    (4) A person who records an oral examination shall record it word for word, including any comment made by a solicitor, other than statements that the attending parties agree to exclude from the record.

Marginal note:Place of oral examination

  •  (1) Where a person to be examined on an oral examination resides in Canada and the person and the parties cannot agree on where to conduct the oral examination, it shall be conducted in the place closest to the person's residence where a superior court sits.

  • Marginal note:Person residing outside Canada

    (2) Where a person to be examined on an oral examination resides outside Canada, the time, place, manner and expenses of the oral examination shall be as agreed on by the person and the parties or, on motion, as ordered by the Court.

  • Marginal note:Travel expenses

    (3) No person is required to attend an oral examination unless reasonable travel expenses have been paid or tendered to the person.

Marginal note:Direction to attend

  •  (1) A party who intends to conduct an oral examination shall serve a direction to attend, in Form 91, on the person to be examined and a copy thereof on every other party.

  • Marginal note:Production for inspection at examination

    (2) A direction to attend may direct the person to be examined to produce for inspection at the examination

    • (a) in respect of an examination for discovery, all documents and other material in the possession, power or control of the party on behalf of whom the person is being examined that are relevant to the matters in issue in the action;

    • (b) in respect of the taking of evidence for use at trial, all documents and other material in that person's possession, power or control that are relevant to the matters in issue in the action;

    • (c) in respect of a cross-examination on an affidavit, all documents and other material in that person's possession, power or control that are relevant to the application or motion; and

    • (d) in respect of an examination in aid of execution, all documents and other material in that person's possession, power or control that are relevant to the person's ability to satisfy the judgment.

  • Marginal note:Service of direction to attend

    (3) A direction to attend an oral examination shall be served

    • (a) where the person to be examined is an adverse party, at least six days before the day of the proposed examination;

    • (b) where the person to be examined is not a party to the proceeding, at least 10 days before the day of the proposed examination; or

    • (c) where the person is to be cross-examined on an affidavit filed in support of a motion, at least 24 hours before the hearing of the motion.

Marginal note:Swearing

 A person to be examined on an oral examination shall be sworn before being examined.

Marginal note:Examining party to provide interpreter

  •  (1) Where a person to be examined on an oral examination understands neither French nor English or is deaf or mute, the examining party shall arrange for the attendance and pay the fees and disbursements of an independent and competent person to accurately interpret everything said during the examination, other than statements that the attending parties agree to exclude from the record.

  • Marginal note:Administrator to provide interpreter

    (2) Where an interpreter is required because the examining party wishes to conduct an oral examination in one official language and the person to be examined wishes to be examined in the other official language, on the request of the examining party made at least six days before the examination, the Administrator shall arrange for the attendance and pay the fees and disbursements of an independent and competent interpreter.

  • Marginal note:Oath of interpreter

    (3) Before aiding in the examination of a witness, an interpreter shall take an oath, in Form 93, as to the performance of his or her duties.

  • SOR/2007-301, s. 3(E).

Marginal note:Production of documents on examination

  •  (1) Subject to subsection (2), a person who is to be examined on an oral examination or the party on whose behalf that person is being examined shall produce for inspection at the examination all documents and other material requested in the direction to attend that are within that person's or party's possession and control, other than any documents for which privilege has been claimed or for which relief from production has been granted under rule 230.

  • Marginal note:Relief from production

    (2) On motion, the Court may order that a person to be examined or the party on whose behalf that person is being examined be relieved from the requirement to produce for inspection any document or other material requested in a direction to attend, if the Court is of the opinion that the document or other material requested is irrelevant or, by reason of its nature or the number of documents or amount of material requested, it would be unduly onerous to require the person or party to produce it.

 
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