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Federal Courts Rules (SOR/98-106)

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Regulations are current to 2021-10-07 and last amended on 2021-06-17. Previous Versions

PART 4Actions (continued)

Discovery and Inspection (continued)

Examinations for Discovery (continued)

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.

Marginal note:Inaccurate or deficient answer

  •  (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

  •  (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

 Where

  • (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

 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

  •  (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

  •  (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.

 
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