PART 4Actions (continued)
Discovery and Inspection (continued)
Examinations for Discovery (continued)
Marginal note:Inaccurate or deficient answer
245 (1) A person who was examined for discovery and who discovers that the answer to a question in the examination is no longer correct or complete shall, without delay, provide the examining party with the corrected or completed information in writing.
Marginal note:Further examination
(2) An examining party may require a person providing information under subsection (1) to continue the examination for discovery in respect of that information.
Marginal note:Corrections deemed part of examination
(3) Information provided under subsection (1) is deemed to be part of the examination for discovery.
Marginal note:Answer by solicitor
246 (1) The solicitor of a person being examined for discovery orally may answer a question on behalf of the person during the examination, unless the examining party objects.
Marginal note:Deemed answer of person examined
(2) An answer given by a solicitor under subsection (1) is deemed to be the answer of the person being examined for discovery.
Marginal note:Divided discovery
(a) an order was made under rule 153 that an issue of fact be the subject of a reference after trial, or
(b) an order was made under rule 107 that an issue in the action be determined separately,
any subsequent examination for discovery or inspection of documents shall not extend to that issue, unless otherwise ordered by the Court.
Marginal note:Undisclosed information inadmissible at trial
248 Where a party examined for discovery, or a person examined for discovery on behalf of a party, has refused, on the ground of privilege or for any other reason, to answer a proper question and has not subsequently answered the question, the party may not introduce the information sought by the question at trial without leave of the Court.
Inspection of Property
Marginal note:Order for inspection
249 (1) On motion, where the Court is satisfied that it is necessary or expedient for the purpose of obtaining information or evidence in full, the Court may order, in respect of any property that is the subject-matter of an action or as to which a question may arise therein, that
(a) a sample be taken of the property;
(b) an inspection be made of the property; or
(c) an experiment be tried on or with the property.
Marginal note:Entry on land or building
(2) An order made under subsection (1) may authorize a person to enter any land or building where the property is located for the purpose of enabling the order to be carried out.
Marginal note:Personal service on non-party
(3) Where a motion is brought under subsection (1) for an order in respect of property that is in the possession of a person who is not a party to the action, that person shall be personally served with notice of the motion.
Medical Examination of Parties
Marginal note:Order for medical examination
250 (1) In an action for damages for personal injuries, the Court may, on motion, order the injured person to submit to a medical examination at a place and by a medical practitioner appointed by the Court.
Marginal note:Who may attend examination
(2) A person who is required to undergo a medical examination under this rule is entitled to have a solicitor, medical advisor or person appointed under rule 115, or all of them, present at the examination, but no other person, other than the person being examined and the medical practitioner authorized to conduct the examination, shall be present during the examination, except with leave of the Court or with the consent of the parties.
Marginal note:Scope of examination
(3) A medical practitioner who is examining a person under this rule may, in connection with that examination, ask the person any question that may be relevant to the purpose of the examination, and any statement made by the person during such an examination is admissible in evidence.
Marginal note:Sanctions for plaintiff’s failure to comply
(4) If a plaintiff fails, without reasonable excuse, to comply with an order under subsection (1) or to answer any questions referred to in subsection (3), the Court may dismiss the action.
Marginal note:Further medical examination
251 On motion, the Court may order further medical examinations in accordance with rule 250, on such terms as it considers just.
Marginal note:Medical report
252 (1) After conducting a medical examination under rule 250, the medical practitioner shall prepare a written report setting out his or her observations, the results of any tests made and his or her conclusions, diagnosis and prognosis and forthwith provide the report to the party who obtained the order.
Marginal note:Service of medical report
(2) A party who obtains an order under rule 250 shall forthwith serve the report obtained pursuant to it on every other party.
Marginal note:Report confidential
(3) Every person who receives a medical report under this rule shall treat it as confidential and use it only for the purposes of the action.
Marginal note:Medical practitioner as witness
253 Unless the Court orders otherwise, a medical practitioner who has made an examination under an order made under subsection 250(1) may, subject to rule 279, be called as a witness at trial.
Marginal note:Costs of medical examination
254 The Court may order that a party seeking an order under subsection 250(1) or rule 251 pay to the person to be examined or to a representative of the person appointed under rule 115 all necessary expenses of attending the examination.
Marginal note:Request to admit fact or document
255 A party may, after pleadings have been closed, request that another party admit a fact or the authenticity of a document by serving a request to admit, in Form 255, on that party.
Marginal note:Effect of request to admit
256 A party who is served with a request to admit is deemed to admit a fact or the authenticity of a document set out in the request to admit unless that party serves a response to the request in Form 256 within 20 days after its service and denies the admission, setting out the grounds for the denial.
Marginal note:Settlement discussions
257 Within 60 days after the close of pleadings, the solicitors for the parties shall discuss the possibility of settling any or all of the issues in the action and of bringing a motion to refer any unsettled issues to a dispute resolution conference.
Marginal note:Requisition for pre-trial conference
258 (1) After the close of pleadings, a party who is not in default under these Rules or under an order of the Court and who is ready for trial may serve and file a requisition for a pre-trial conference, accompanied by a pre-trial conference memorandum.
Marginal note:Contents of requisition
(2) A requisition for a pre-trial conference shall be in Form 258 and include a certification by the solicitor of record that
(a) all examinations for discovery that the party intends to conduct have been completed; and
(b) settlement discussions have taken place in accordance with rule 257.
Marginal note:Contents of pre-trial conference memorandum
(3) A pre-trial conference memorandum shall contain
(a) a concise statement of the nature of the proceeding;
(b) any admissions of the party;
(c) the factual and legal contentions of the party; and
(d) a statement of the issues to be determined at trial.
(4) A pre-trial conference memorandum shall be accompanied by a copy of all documents that are intended to be used at trial that may be of assistance at the pre-trial conference, including all affidavits or statements of expert witnesses.
(5) [Repealed, SOR/2010-176, s. 4]
- SOR/2006-219, s. 2
- SOR/2010-176, s. 4
Marginal note:Time and place for pre-trial conference
259 On the filing of a requisition for a pre-trial conference, the Court shall fix a time, not more than 60 days thereafter, and place for the pre-trial conference.
Marginal note:Participation at pre-trial conference
260 Unless the Court directs otherwise, the solicitors of record for the parties and the parties or their authorized representatives shall participate in a pre-trial conference.
Marginal note:Notice of pre-trial conference
261 The Administrator shall serve a notice of pre-trial conference, in Form 261, on the parties at least 30 days before the date fixed for the conference.
Marginal note:Pre-trial conference memoranda
262 (1) Every party, other than the party who filed the requisition for a pre-trial conference, shall serve and file a pre-trial conference memorandum within 30 days after being served with the requisition.
Marginal note:Objection to expert
(2) The pre-trial conference memorandum shall include any known objection to the requisitioning party’s proposed expert witness that could disqualify the witness from testifying and the basis for the objection.
- SOR/2006-219, s. 3
- SOR/2010-176, s. 5
Marginal note:Scope of pre-trial conference
263 Participants at a pre-trial conference must be prepared to address
(a) the possibility of settlement of any or all of the issues in the action and of referring any unsettled issues to a dispute resolution conference;
(b) simplification of the issues in the action;
(c) any issues arising from any affidavits or statements of expert witnesses, including
(i) any objection to an opposing party’s proposed expert witness that could disqualify the witness from testifying and the basis for the objection,
(ii) any benefit to the litigation in ordering the experts to confer with one another in advance of trial in order to narrow the issues and identify the points on which their views differ, and
(iii) the need for any additional or rebuttal expert witness evidence;
(d) the possibility of obtaining admissions that may facilitate the trial;
(e) the issue of liability;
(f) the amount of damages, where damages are claimed;
(g) the estimated duration of the trial;
(h) the advisability of having the Court appoint an assessor;
(i) the advisability of a reference;
(j) suitable dates for a trial;
(k) the necessity for interpreters or simultaneous interpretation at the trial;
(l) whether a notice of a constitutional question needs to be served under section 57 of the Act;
(m) the content of the trial record; and
(n) any other matter that may promote the timely and just disposition of the action.
- SOR/2002-417, s. 15
- SOR/2006-219, s. 4
- SOR/2010-176, s. 6
Marginal note:Trial date and place
264 If the date and place for trial have not already been fixed, the judge or prothonotary who conducts the pre-trial conference shall do so as soon as practicable after the pre-trial conference.
265 (1) At a pre-trial conference,
(a) a judge may make any order respecting the conduct of the action; and
(b) a prothonotary may make any order respecting the conduct of the action other than an order under a motion referred to in any of paragraphs 50(1)(a) to (i).
Marginal note:Service of expert’s affidavit or statement
(2) If applicable, the order shall set out the time for service of any additional or rebuttal affidavits or statements of expert witnesses.
- SOR/2006-219, s. 5
Marginal note:Pre-trial judge not to preside at trial
266 A judge or prothonotary who conducts a pre-trial conference in an action shall not preside at the trial of the action unless all parties consent.
Marginal note:No disclosure to the Court
267 No communication shall be made to a judge or prothonotary presiding at a trial or hearing, or on a motion or reference in an action, with respect to any statement made at a pre-trial conference, except as may be permitted in an order made at the conclusion of the pre-trial conference or as consented to by the parties.
Marginal note:Trial record
268 The plaintiff, or any other party so directed by the Court at a pre-trial conference, shall serve and file a trial record not later than 40 days before the date fixed for trial.
Marginal note:Content of trial record
269 A trial record shall contain the pleadings, any particulars, all orders and directions respecting the trial and any other filed document that is necessary for the conduct of the trial.
Trial Management Conference
Marginal note:Scope of trial management conference
270 Notwithstanding rule 266, a judge or prothonotary before whom an action has been set down for trial may, without being disqualified from presiding at the trial, hold a conference, either before or during the trial, to consider any matter that may assist in the just and timely disposition of the action.
Taking of Trial Evidence out of Court
Marginal note:Evidence taken out of court
271 (1) On motion, the Court may order the examination for trial of a person out of court.
(2) In making an order under subsection (1), the Court may consider
(a) the expected absence of the person at the time of trial;
(b) the age or any infirmity of the person;
(c) the distance the person resides from the place of trial; and
(d) the expense of having the person attend at trial.
Marginal note:Directions regarding taking evidence before trial
(3) In an order under subsection (1), or on the subsequent motion of a party, the Court may give directions regarding the time, place, manner and costs of the examination, notice to be given to the person being examined and to other parties, the attendance of witnesses and the production of requested documents or material.
Marginal note:Further examination
(4) On motion, the Court may order the further examination, before the Court or before a person designated by the Court, of any witness examined under subsection (1), and if such an examination is not conducted, the Court may refuse to admit the evidence of that witness.
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