Federal Courts Rules (SOR/98-106)

General

Marginal note:Right of plaintiff who obtains judgment

217 A plaintiff who obtains judgment under rule 215 or 216 may proceed against the same defendant for any other relief and may proceed against any other defendant for the same or any other relief.

Marginal note:Powers of Court

218 If judgment under rule 215 or 216 is refused or is granted only in part, the Court may make an order specifying which material facts are not in dispute and defining the issues to be tried and may also make an order

• (a) for payment into court of all or part of the claim;

• (b) for security for costs; or

• (c) limiting the nature and scope of the examination for discovery to matters not covered by the affidavits filed on the motion for summary judgment or summary trial or by any cross-examination on them and providing for their use at trial in the same manner as an examination for discovery.

Marginal note:Stay of execution

219 On granting judgment under rule 215 or 216, the Court may order that enforcement of the judgment be stayed pending the determination of any other issue in the action or in a counterclaim or third party claim.

Questions of Law

Marginal note:Preliminary determination of question of law or admissibility

• 220 (1) A party may bring a motion before trial to request that the Court determine

  • (a) a question of law that may be relevant to an action;

  • (b) a question as to the admissibility of any document, exhibit or other evidence; or

  • (c) questions stated by the parties in the form of a special case before, or in lieu of, the trial of the action.

• Marginal note:Contents of determination

  (2) Where, on a motion under subsection (1), the Court orders that a question be determined, it shall

  • (a) give directions as to the case on which the question shall be argued;

  • (b) fix time limits for the filing and service of motion records by the parties; and

  • (c) fix a time and place for argument of the question.

• Marginal note:Determination final

  (3) A determination of a question referred to in subsection (1) is final and conclusive for the purposes of the action, subject to being varied on appeal.

Striking Out Pleadings

Marginal note:Motion to strike

• 221 (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

• 222 (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.

Marginal note:Time for service of affidavit of documents

• 223 (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

• 224 (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

225 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

• 226 (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

227 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

• 228 (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

229 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

230 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

231 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

• 232 (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.

Marginal note:Production from non-party with leave

• 233 (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

• 234 (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

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

Marginal note:When examination may be initiated

• 236 (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.