Federal Courts Rules (SOR/98-106)

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.

Marginal note:Representative selected

• 237 (1) A corporation, partnership or unincorporated association that is to be examined for discovery shall select a representative to be examined on its behalf.

• Marginal note:Examination of Crown

  (2) Where the Crown is to be examined for discovery, the Attorney General of Canada shall select a representative to be examined on its behalf.

• Marginal note:Order for substitution

  (3) The Court may, on the motion of a party entitled to examine a person selected under subsection (1) or (2), order that some other person be examined.

• Marginal note:Examination of assignee

  (4) Where an assignee is a party to an action, the assignor may also be examined for discovery.

• Marginal note:Examination of trustee in bankruptcy

  (5) Where a trustee in bankruptcy is a party to an action, the bankrupt may also be examined for discovery.

• Marginal note:Examination of party under legal disability

  (6) If a party intends to examine for discovery a person who is appointed under paragraph 115(1)(b) to represent a person under a legal disability, the party may, with leave of the Court, also examine the person under a legal disability.

• Marginal note:Examination of nominal party

  (7) Where a party intends to examine for discovery a person bringing or defending an action on behalf of another person who is not a party, with leave of the Court, the party may also examine that other person.

Marginal note:Examination of non-parties with leave

• 238 (1) A party to an action may bring a motion for leave to examine for discovery any person not a party to the action, other than an expert witness for a party, who might have information on an issue in the action.

• Marginal note:Personal service on non-party

  (2) On a motion under subsection (1), the notice of motion shall be served on the other parties and personally served on the person to be examined.

• Marginal note:Where Court may grant leave

  (3) The Court may, on a motion under subsection (1), grant leave to examine a person and determine the time and manner of conducting the examination, if it is satisfied that

  • (a) the person may have information on an issue in the action;

  • (b) the party has been unable to obtain the information informally from the person or from another source by any other reasonable means;

  • (c) it would be unfair not to allow the party an opportunity to question the person before trial; and

  • (d) the questioning will not cause undue delay, inconvenience or expense to the person or to the other parties.

Marginal note:Expenses of person examined

• 239 (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

240 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

241 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

• 242 (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

243 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

• 244 (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

• 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

247 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

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.