Specific Claims Tribunal Rules of Practice and Procedure (SOR/2011-119)

Marginal note:Claim of confidentiality

• 58 (1) If a party claims confidentiality with respect to a document or information, or a category of documents or information, that is subject to an application for disclosure the party must, in addition to the information required under Rule 35, set out the following in its response:

  • (a) the nature of the confidentiality claimed; and

  • (b) the specific and direct harm that would result from the disclosure.

• Marginal note:Inspection by Tribunal

  (2) If a party claims confidentiality with respect to a document or information, or a category of documents or information, that is subject to an application for disclosure, the Tribunal may inspect them in order to determine

  • (a) whether they are relevant to the proceedings; or

  • (b) whether the claim of confidentiality is valid.

• Marginal note:Draft disclosure order

  (3) If a party claims confidentiality with respect to documents or information, or a category of documents or information, but consents to their disclosure under certain conditions, the party must, together with its response, file a draft order that

  • (a) identifies the documents or information, or category of documents or information, for which there is consent to disclosure; and

  • (b) sets out the conditions for their disclosure, including

    • (i) the parties that are to have access to them, and

    • (ii) for each document for which there is consent to disclosure,

      • (A) the number of copies that are to be provided to the parties,

      • (B) the limitations imposed with respect to their reproduction, and

      • (C) instructions for their return or destruction at the conclusion of the proceedings.

Marginal note:Claim of privilege

• 59 (1) If a party claims privilege with respect to a document or information, or a category of documents or information, that is subject to an application for disclosure the party must, in addition to the information required under Rule 35, set out the nature of the privilege claimed in its response.

• Marginal note:Inspection by Tribunal

  (2) If a party claims privilege with respect to a document or information, or a category of documents or information, that is subject to an application for disclosure, the Tribunal may inspect them in order to determine whether the claim of privilege is valid.

PART 9Examinations Before the Hearing

General

Marginal note:Application

• 60 (1) A party may make an application to examine a person before the hearing

  • (a) for the purpose of discovery;

  • (b) for the purpose of cross-examining the person on their affidavit; or

  • (c) for the purpose of taking the person’s evidence for use at the hearing.

• Marginal note:On consent

  (2) Leave is not required to make the application if all parties consent to the examination.

• Marginal note:Additional information

  (3) In addition to the information required under Rule 34, the notice of application must set out the following information:

  • (a) whether the examination is proposed to be conducted orally, in writing or both;

  • (b) whether the person or party proposed to be examined has consented to the examination; and

  • (c) whether any other parties have consented to the examination.

Marginal note:Considerations

61 When deciding an application made under paragraph 60(1)(c), the Tribunal must consider the following factors in relation to the person proposed to be examined:

• (a) whether they will be absent during the time of the hearing;

• (b) their age or infirmity;

• (c) the distance they reside from the place of the hearing; and

• (d) the expense of having them attend the hearing.

Marginal note:Directions

62 If the Tribunal permits the examination to be conducted, it may provide the parties with directions regarding

• (a) the format and location of the examination; and

• (b) in the case of an oral examination, the means by which it is to be recorded.

Marginal note:Designated person

• 63 (1) When the Crown or a First Nation is examined for discovery, it must designate a person to be examined on its behalf.

• Marginal note:Substitute

  (2) On the application of the examining party, the Tribunal may order that a person other than the one designated be examined.

Marginal note:Duty of witness

64 The witness must, to the best of their knowledge, information and belief, answer every question posed to them that is relevant to the specific claim.

Marginal note:Oath

65 Examinations must be conducted under oath.

Oral Examinations

Marginal note:Recording

66 Oral examinations must be recorded by a person who is qualified to record examinations.

Marginal note:Interpreter

• 67 (1) If the witness understands neither French nor English, or is hearing or speech impaired, the examining party must arrange for the attendance of an independent and competent person to accurately interpret everything said during the examination.

• Marginal note:Interpreter’s oath

  (2) Before providing services at the examination, the interpreter must take an oath that they will accurately interpret everything said during the examination.

Marginal note:Production of documents

68 At the examination, the party whose witness is being examined must produce for inspection all documents that are relevant to the examination and which have been ordered to be disclosed under Part 8.

Marginal note:Objections

• 69 (1) A party who objects to a question that is asked in an examination must briefly state the grounds for the objection for the record.

• Marginal note:Answer

  (2) The witness may answer a question for which an objection is made subject to the right to having the propriety of the question determined, by application to the Tribunal, before the answer is used at the hearing.

Marginal note:Limiting an examination

70 On the application of a party, the Tribunal may limit an examination that it considers to be oppressive, vexatious, repetitive or otherwise unnecessary.

Marginal note:Application for directions

• 71 (1) A party may suspend an examination and make an application for directions if they believe that their witness is being subjected to an excessive number of questions or to improper questions, or that the examination is being conducted in bad faith or in an abusive manner.

• Marginal note:Application for directions

  (2) The examining party may suspend the examination and make an application for directions if

  • (a) they believe that the answers being provided by the witness are evasive; or

  • (b) documents have not been produced under Rule 68.

Marginal note:Costs of examination

72 The examining party must pay the following costs:

• (a) all fees and disbursements related to the recording of the examination;

• (b) if an interpreter was required, the fees and disbursements of the interpreter; and

• (c) the reasonable travel expenses incurred by the witness.

Written examinations

Marginal note:Written examinations

73 If an examination is to be conducted in writing, the examining party must serve the party whose witness is being examined with a list of concise, separately numbered questions for the witness to answer.

Marginal note:Timing and format for answers

74 The witness must, within 30 days after the day on which the questions are served, serve each party with an affidavit setting out their answers to the questions.

Marginal note:Objections

75 If a party objects to a question that is posed in a written examination, the examining party may make an application to compel the witness to answer the question.

Sanctions

Marginal note:Sanction

76 On the application of a party, the Tribunal may award costs against any person or party whose conduct necessitated the making of an application under Rule 70 or subrule 71(1) or who unnecessarily suspended an examination under subrule 71(2).

Marginal note:Sanction

77 If a person fails to attend an examination or refuses to take an oath, answer a proper question, produce documents under Rule 68 or to comply with an order of the Tribunal, the Tribunal may, on the application of a party,

• (a) order the person to attend or re-attend the examination at their own expense;

• (b) order the person to answer a question for which an improper objection was made and any proper question arising from that answer;

• (c) strike all or part of the person’s evidence, including any affidavit made by that person; or

• (d) order the party on whose behalf the person is being examined to pay the costs of the examination.

PART 10Evidence

Evidence Taken Before the Hearing

Discovery Evidence

Marginal note:Witness unavailable

78 With leave of the Tribunal, a party may introduce all or part of an examination for discovery of a person as evidence at the hearing if

• (a) the person has died;

• (b) the person is unable to testify at the hearing because they are ill or infirm; or

• (c) the person cannot be compelled to attend the hearing.

Marginal note:Introduction of evidence

79 A party may introduce as its own evidence at the hearing any part of its examination for discovery of a person, whether or not that person has already testified.

Marginal note:Order to introduce

80 If a party only introduces part of the examination for discovery, the Tribunal may order the party to introduce any other part of that examination that the Tribunal considers relevant.

Marginal note:Use for impeachment

81 A party may use any part of its examination for discovery of a person as evidence to impeach the credibility of that person as a witness at the hearing. However, the party must first ask the person the questions posed to them in that part of the examination.

Evidence Taken for Use at Hearing

Marginal note:Entering of evidence

82 Evidence taken in an examination referred to in paragraph 60(1)(c) may be entered into evidence by any party at the hearing.

Oral History Evidence

Marginal note:Notice

83 A party that intends to enter oral history evidence at the hearing must provide every other party with written notice of that intention at least 90 days before the day on which the hearing begins.

Marginal note:Disclosure order

84 The Tribunal may order a party who intends to enter oral history evidence to make pre-hearing disclosure of that evidence to every other party if it is necessary to ensure a just and expeditious hearing.

Expert Evidence

Expert Reports

Marginal note:Expert report

85 A party that intends to have an expert witness give evidence at the hearing must, at least 120 days before the day on which the hearing begins, serve every other party with a copy of the expert’s report.