Tax Court of Canada Rules (General Procedure) (SOR/90-688a)

Discovery of Documents

Interpretation

• 78 (1) In sections 78 to 91, document includes a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account and information recorded or stored by means of any device.

• (2) A document shall be deemed to be in a party’s power if that party is entitled to obtain the original document or a copy of it and the party seeking it is not so entitled.

• (3) In section 83,

  • (a) a corporation is a subsidiary of another corporation where it is controlled directly or indirectly by the other corporation, and

  • (b) a corporation is affiliated with another corporation where,

    • (i) one corporation is the subsidiary of the other,

    • (ii) both corporations are subsidiaries of the same corporation, or

    • (iii) both corporations are controlled directly or indirectly by the same person or persons.

Agreement to Limit Discovery

79 Nothing in sections 78 to 91 shall be taken as preventing parties to an appeal from agreeing to dispense with or limit the discovery of documents that they would otherwise be required to make to each other.

Document in Pleading or Affidavit

• 80 (1) At any time a party may deliver a notice to any other party, in whose pleadings or affidavit reference is made to a document requiring that other party to produce that document.

• (2) The party receiving the notice shall deliver, within ten days, a notice stating a place where the document may be inspected and copied during normal business hours or stating that the party objects to produce the document and the grounds of the objection. (Form 80)

List of Documents (Partial Disclosure)

• 81 (1) A party shall, within thirty days following the closing of the pleadings, file and serve on every other party a list of the documents of which the party has knowledge at that time that might be used in evidence,

  • (a) to establish or to assist in establishing any allegation of fact in any pleading filed by that party, or

  • (b) to rebut or to assist in rebutting any allegation of fact in any pleading filed by any other party.

• (2) A list of documents to be filed under this section shall be in Form 81.

• (3) A party who has failed to file and serve a list of documents within the time fixed by subsection (1) may, without leave, file and serve it after that time unless,

  • (a) a notice of motion for a judgment under section 91 has been filed, or

  • (b) an application to fix the time and place of hearing under subsection 123(1) has been filed or a date for hearing the appeal has been fixed by the Court,

  in which case, the party may apply for leave to file and serve the list.

• (4) A party who has failed to file and serve a list of documents within the period set by a judge pursuant to subparagraph 125(5)(a)(i) may file and serve it only with leave of the Court.

List of Documents (Full Disclosure)

• 82 (1) The parties may agree or, in the absence of agreement, either party may apply to the Court for an order directing that each party shall file and serve on each other party a list of all the documents that are or have been in that party’s possession, control or power relevant to any matter in question between or among them in the appeal.

• (2) Where a list of documents is produced in compliance with this section, the list shall describe, in separate schedules, all documents relevant to any matter in issue in the appeal,

  • (a) that are in the party’s possession, control or power and that the party does not object to producing,

  • (b) that are or were in the party’s possession, control or power and for which the party claims privilege, and the grounds for the claim, and

  • (c) that were formerly in the party’s possession, control or power, but are no longer in the party’s possession, control or power, whether or not privilege is claimed for them, together with a statement of when and how the party lost possession or control of, or power over them and their present location.

• (3) A list of documents files and served under this section shall be in Form 82(3).

• (4) A list of documents made in compliance with this section shall be verified by affidavit (Forms 82(4)A and 82(4)(B),

  • (a) if the party is an individual, by the party unless that person is under a legal disability in which case the affidavit shall be made by that person’s representative;

  • (b) if the party is a corporation or any body or group of persons empowered by law to sue or to be sued, either in its own name or in the name of any officer or other person, by any member or officer of such corporation, body or group, and

  • (c) if the party is the Crown, by any departmental or other officer of the Crown nominated by the Deputy Attorney General of Canada.

• (5) The affidavit shall contain a statement that the party has never had possession, control or power of any document relevant to any matter in issue in the proceeding other than those included in the list.

• (6) The Court may direct a party to attend and be cross-examined on an affidavit delivered under this section.

Corporate Documents

• 83 (1) The Court may direct a party to disclose all relevant documents in the possession, control or power of the party’s subsidiary or affiliated corporation or of a corporation controlled directly or indirectly by the party and to produce for inspection all such documents that are not privileged.

• (2) The direction under this section may be limited to such documents or classes of documents, or to such of the matters in question as may be specified in it.

Description of Documents

84 A list of documents made in compliance with section 81 or 82 shall enumerate the documents in a convenient order as briefly as possible but describing each of them or, in the case of bundles of documents of the same nature, each bundle shall be described sufficiently to enable it to be identified.

Inspection

• 85 (1) A party who has delivered a list of documents to any other party shall allow the other party to inspect and copy the documents listed, except those which he objects to produce, and when he delivers the list he shall also deliver a notice stating a place where the documents may be inspected and copied during normal business hours.

• (2) Where a party is entitled to inspect the documents to which reference is made in the list of documents, the other party shall, on request and on payment in advance of the cost of reproduction and delivery, deliver copies of any of the documents.

• (3) All documents listed in a party’s list of documents under section 81 or under section 82 and that are not privileged, and all documents previously produced for inspection by the party shall, without notice, subpoena or direction, be taken to and produced at,

  • (a) the examination for discovery of the party or a person on behalf of, in place of, or in addition to the party, and

  • (b) the hearing of the appeal,

  unless the parties otherwise agree.

Document in Possession of Non-Party

• 86 (1) When a document is in the possession of a person not a party to the appeal and the production of such document at a hearing might be compelled, the Court may at the instance of any party, on notice to such person, direct the production of a certified copy which may be used for all purposes in lieu of the original.

• (2) Where an application under subsection (1) is in respect of a document in the possession of the Crown, the notice to the Crown shall be directed to, and served on, the Deputy Attorney General of Canada.

List Incomplete

87 Where, after the list of documents has been served under either section 81 or section 82, it comes to the attention of the party serving it that the list has for any reason become inaccurate or incomplete, that party shall serve forthwith a supplementary list specifying the inaccuracy or describing the document.

Where Affidavit Incomplete or Privilege Improperly Claimed

88 Where the Court is satisfied by any evidence that a relevant document in a party’s possession, control or power may have been omitted from the party’s affidavit of documents, or that a claim of privilege may have been improperly made, the Court may,

• (a) order cross-examination on the affidavit of documents,

• (b) order service of a further and better affidavit of documents,

• (c) order the disclosure or production for inspection of the document or a part of the document, if it is not privileged, and

• (d) inspect the document for the purpose of determining its relevance or the validity of a claim of privilege.

Use at Hearing

• 89 (1) Unless the Court otherwise directs, except with the consent in writing of the other party or where discovery of documents has been waived by the other party, no document shall be used in evidence by a party unless

  • (a) reference to it appears in the pleadings, or in a list or an affidavit filed and served by a party to the proceeding,

  • (b) it has been produced by one of the parties, or some person being examined on behalf of one of the parties, at the examination for discovery, or

  • (c) it has been produced by a witness who is not, in the opinion of the Court, under the control of the party.

• (2) Unless the Court otherwise directs, subsection (1) does not apply to a document that is used solely as a foundation for or as part of a question in cross-examination or re-examination.

Disclosure or Production not Admission of Relevance

90 The disclosure or production of a document for inspection shall not be taken as an admission of its relevance or admissibility.

Effect of Failure to Disclose or Produce for Inspection

91 Where a person or party who is required to make discovery of documents under sections 78 to 91 fails or refuses without reasonable excuse to make a list or affidavit of documents or to disclose a document in a list or affidavit of documents or to produce a document for inspection and copying, or to comply with a judgment of the Court in relation to the production or inspection of documents, the Court may,

• (a) direct or permit the person or party to make a list or affidavit of documents, or a further list or affidavit of documents,

• (b) direct the person or party to produce a document for inspection and copying,

• (c) except where the failure or refusal is by a person who is not a party, dismiss the appeal or allow the appeal as the case may be,

• (d) direct any party or any other person to pay personally and forthwith the costs of the motion, any costs thrown away and the costs of any continuation of the discovery necessitated by the failure to disclose or produce, and

• (e) give such other direction as is just.

Examination for Discovery

General

92 An examination for discovery may take the form of an oral examination or, at the option of the examining party, an examination by written questions and answers, but the examining party is not entitled to subject a person to both forms of examination except with leave of the Court.

Who May be Examined

• 93 (1) A party to a proceeding may examine for discovery an adverse party once, and may examine that party more than once only with leave of the Court.

• (2) A party to be examined, other than an individual or the Crown, shall select a knowledgeable current or former officer, director, member or employee, to be examined on behalf of that party, but, if the examining party is not satisfied with that person, the examining party may apply to the Court to name some other person.

• (3) The Crown, when it is the party to be examined, shall select a knowledgeable current or former officer, servant or employee, nominated by the Deputy Attorney General of Canada, to be examined on behalf of that party, but, if the examining party is not satisfied with that person, the examining party may apply to the Court to name some other person.

• (4) If a current or former officer, director or employee of a corporation or of the Crown has been examined, no other person may be examined without leave of the Court.

• (5) Where an appeal is brought by a party under a legal disability,

  • (a) the representative for that party may be examined in place of that party; or

  • (b) at the option of the examining party, the party under a legal disability may be examined if that party is competent to give evidence.

  If the representative referred to in paragraph (a) is a public official, that person may be examined only with leave of the Court.

• (6) Where an appeal is brought by an assignee, the assignor may be examined in addition to the assignee.

• (7) Where an appeal is brought by a trustee of the estate of a bankrupt, the bankrupt may be examined in addition to the trustee.

• (8) Where a party is entitled to examine for discovery,

  • (a) more than one person under this section, or

  • (b) multiple parties who are in the same interest,

  but the Court is satisfied that multiple examinations would be oppressive, vexatious or unnecessary, the Court may impose such limits on the right of discovery as are just.

When May Examination be Held

• 94 (1) A party who seeks to examine an appellant for discovery may serve a notice to attend under section 103 or a list of written questions under section 113 only after the reply has been filed and served and, unless the parties agree otherwise, a list of documents under section 81 or 82 has been filed and served.

• (2) However, where it appears to the Court that it would be just to allow a party to examine an appellant for discovery other than in accordance with subsection (1) it may so direct.

• (3) A party who seeks to examine a respondent for discovery may serve a notice to attend under section 103 or a list of written questions under section 113 only after the respondent has delivered a reply or where the time to do so has expired and, unless the parties agree otherwise, after the examining party has served a list of documents under section 81 or 82.

Scope of Examination

• 95 (1) A person examined for discovery shall answer, to the best of that person’s knowledge, information and belief, any proper question relevant to any matter in issue in the proceeding or to any matter made discoverable by subsection (3) and no question may be objected to on the ground that

  • (a) the information sought is evidence or hearsay,

  • (b) the question constitutes cross-examination, unless the question is directed solely to the credibility of the witness, or

  • (c) the question constitutes cross-examination on the affidavit of documents of the party being examined.

• (2) Prior to the examination for discovery, the person to be examined shall make all reasonable inquiries regarding the matters in issue from all of the party’s officers, servants, agents and employees, past or present, either within or outside Canada and, if necessary, the person being examined for discovery may be required to become better informed and for that purpose the examination may be adjourned.

• (3) [Repealed, SOR/2014-26, s. 10]

• (4) A party may on an examination for discovery obtain disclosure of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the proceeding, unless the Court orders otherwise.

Effect of Refusal

• 96 (1) Where a party, or a person examined for discovery on behalf or in place of a party, has refused to answer a proper question or to answer a question on the ground of privilege, and has failed to furnish the information in writing not later than ten days after the proceeding is set down for hearing, the party may not introduce at the hearing the information refused on discovery, except with leave of the judge.

• (2) The sanction provided by subsection (1) is in addition to the sanctions provided by section 110.

Effect of Counsel Answering

97 Questions on an oral examination for discovery shall be answered by the person being examined but, where there is no objection, the question may be answered by counsel and the answer shall be deemed to be the answer of the person being examined unless, before the conclusion of the examination, the person repudiates, contradicts or qualifies the answer.