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RULE 30
EXAMINATION
FOR DISCOVERY

Analysis



Persons who may be examined

30.01. (1) At any time before trial, any person, who is within or without the jurisdiction, may be orally examined on oath or affirmation by any party regarding any matter, not privileged, that is relevant to the subject matter of the proceeding.

             (2)  Where it is unnecessary, improper or vexatious, the Court may limit the number of persons to be examined and set aside the appointment for the examination of any person.

             (3)  The costs of examining more than one person, other than a party, shall, unless the Court otherwise orders, be borne by the party examining.

1986 c42 Sch D rule 30.01

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Time of examination

30.02. Unless the Court otherwise orders, an examination for discovery shall take place

             (a )  prior to the commencement of a proceeding where a judge orders, on an ex parte application made to the judge;

             (b)  at any time after the commencement of a proceeding and before the close of pleadings when the Court orders; and

             (c)  at any time after pleadings have closed, without an order.

1986 c42 Sch D rule 30.02

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Examiner

30.03. (1) Where the examination for discovery of a person is to take place in the province it shall take place before the Registrar or a person appointed by the Registrar.

             (2)  Where the examination for discovery is to take place outside the province the examination shall take place before a person appointed by the Court.

1986 c42 Sch D rule 30.03

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Notice of examination and attendance fee

30.04. (1) Unless the Court otherwise orders, a notice of examination in Form 30.04A, setting out the time and place of the examination, the name and address of each person to be examined, and issued by the Registrar, together with the attendance fee, shall be served and paid at least five days before the day appointed for the examination, as follows,

             (a)  where the person to be examined is a party, upon that person's solicitor, or if that person has no solicitor, upon the party; and

             (b)  where the person to be examined is not a party, upon that person, and a copy of the notice shall forthwith be served upon each other party or his or her solicitor, if any.

             (2)  The notice of examination shall specify whether the person to be examined shall produce any books, papers, documents and records on the examination.

             (3)  The attendance fee of a person to be examined shall be the same as that paid to a witness in a proceeding.

1986 c42 Sch D rule 30.04

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Examination out of the jurisdiction

30.05. (1) The Court may order any person who is temporarily or permanently resident out of the jurisdiction to be examined before an examiner for such purposes, at such time and place, and in such manner as the Court thinks just.

             (2)  Where the person to be examined is a party, service of the order and all papers for the examination may be made upon his or her solicitor, if any, and the attendance fee of the party to be examined may be paid to the solicitor.

1986 c42 Sch D rule 30.05

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Reporting

30.06. (1) Unless the Court otherwise orders, the evidence on the examination for discovery shall be recorded electronically or taken in shorthand by a court reporter or by a shorthand reporter approved by the parties, or by the Registrar and duly sworn or affirmed, in question and answer form, and it shall not be necessary for the depositions to be read over to and signed by the person examined.

             (2)  Where the examination is taken by an official court reporter or a shorthand reporter approved by the parties or by the Registrar and duly sworn or affirmed, such a reporter shall be deemed to be the examiner within the meaning of this rule, and it shall not be necessary for any other examiner to be appointed or to be present at the examination.

             (3)  The depositions so taken, when extended and certified by the person taking the same as correct, are deemed to be the original depositions.

1986 c42 Sch D rule 30.06

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Examination and re-examination

30.07. Any person examined for discovery may be further examined on that person's own behalf or on behalf of any party and may then be re-examined, and any such further examination and re-examination shall be proceeded with immediately after his or her examination by the other party and may take the form of a cross-examination.

1986 c42 Sch D rule 30.07

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Scope of Examination

30.08. (1) Unless it is otherwise ordered, a person, being examined upon an examination for discovery, shall answer any question within that person's knowledge or means of knowledge regarding any matter, not privileged, that is relevant to the subject matter of the proceeding, even though it is not within the scope of the pleadings.

             (2)  In order to comply with rule 30.08(1), the person being examined may be required to inform himself or herself and the examination may be adjourned for that purpose.

             (3)  When any person examined for discovery omits to answer or answers insufficiently, the Court may grant an order requiring that person to answer or to answer further and give such other directions as are just.

1986 c42 Sch D rule 30.08

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Correcting answers

30.08A.   (1) Where a party has been examined for discovery or a person has been examined for discovery on behalf or in place of, or in addition to the party, and the party subsequently discovers that the answer to a question on the examination

             (a )  was incorrect or incomplete when made, or

             (b )  is no longer correct and complete,

the party shall immediately provide the information in writing to every other party.

             (2)  Where a party provides information in writing under rule 30.08A( 1)

             (a)  the writing may be treated at a hearing as if it formed part of the original examination of the person examined, and

             (b)  any adverse party may require that the information be verified by affidavit of the person discovered or be the subject of further examination for discovery.

             (3)  Where a party has failed to comply with rule 30.08A( 1) or a requirement under rule 30.08A(2)(b), and the information subsequently discovered is

             (a)  favorable to the party’s case, the party may not introduce the information at the trial, except with leave of the trial judge; or

             (b)  not favorable to the party’s case, the court may make the order that is just.

60/02 s1

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Exhibits

30.09. The examiner may direct that any exhibit marked on an examination for discovery need not be filed with the examiner, but in such a case the exhibits shall be produced at the trial or hearing of the proceeding without notice, or the examiner shall, at the request of any examining solicitor, cause copies thereof or extracts therefrom to be certified as true and attached to the depositions and the copies or extracts may be used in every way as the originals.

1986 c42 Sch D rule 30.09

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Production of books, papers or documents

30.10. Anyone who admits upon an examination for discovery that he or she has in his or her custody or power any book, paper, document or record relating to the matters in question in the proceeding, not privileged or protected from production, shall produce the same for the inspection of the party examining him or her upon the direction of the examiner or order of the Court within a reasonable time as fixed by the direction or order.

1986 c42 Sch D rule 30.10

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Objections and rulings of examiner

30.11. (1) An examiner shall, upon an examination for discovery, cause every question and answer to be taken down and a note made upon the disposition of any question objected to and the ground of the objection, but the evidence objected to, except in so far as the evidence relates to a matter that is alleged to be privileged, shall be taken subject to the objection.

             (2)  No objection to any question shall be valid if made solely upon the ground that any answer thereto will disclose the name of a witness, or that the question will be inadmissible at the trial or hearing if the answer sought appears reasonably calculated to lead to the discovery of admissible evidence.

             (3)  Any ruling or direction of the examiner may be appealed to the Court, and the examiner shall upon request certify under his or her hand the question raised, any answer thereto, and his or her ruling or direction thereon.

             (4)  The validity of an objection to any question, answer, ruling or direction shall be decided by the Court, and the costs of and occasioned by the objection shall be in the discretion of the Court and may be ordered to be paid by the person under examination.

1986 c42 Sch D rule 30.11; 8/97 s1

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Delivery of depositions

30.12. (1) The examiner shall deliver a copy of the depositions, signed and certified by the examiner, to any party who orders it and the copy shall, subject to the provisions of rule 30.13 and without proof of his or her signature, be received in evidence subject to all just exceptions, but the depositions shall not be filed with the Court without the consent of the parties or an order of the Court.

             (2)  The examiner may, and if need be shall, make a special report to the Court touching an examination and the conduct or absence of any person, and the Court may make such order upon the report as is just.

1986 c42 Sch D rule 30.12; 36/14 s42

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Use of depositions as evidence

30.13. (1) At a trial or upon a hearing of an application, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at an examination for discovery, or who received due notice thereof, for any of the following purposes,

             (a)  to contradict or impeach the testimony of the deponent as a witness;

             (b)  where the deponent was a party, or an officer, director or manager of a party that is a corporation, partnership or association, for any purpose by an adverse party; or

             (c)  where the deponent is dead, or is unable to attend or testify because of age, infirmity, sickness, or imprisonment, or is out of the jurisdiction, or the deponent's attendance cannot be secured by subpoena, or exceptional circumstances exist that make it desirable in the interest of justice to allow the deposition to be used, for any purpose by any party.

             (2)  If only part of a deposition is offered in evidence by a party, an adverse party may require the introduction of any other part which is relevant to the part introduced, and the other party may introduce any further part.

             (3)  Any part of a deposition received in evidence on a trial or hearing shall be placed on the record by

             (a)  reading any agreed question and answer into the record;

             (b)  the parties agreeing that certain numbered questions and answers be inserted in the record;

             (c)  the parties filing, either during or after the trial or hearing, the questions and answers agreed upon; or

             (d)  the direction of the Court.

             (4)  Depositions previously taken in a proceeding may be used in the same or subsequent proceeding

             (a)  where any party has been substituted in the proceeding; and

             (b)  when a proceeding has been discontinued and another proceeding involving the same subject matter is afterwards brought between the same parties or their representatives or successors in interest.

             (5)  The effect of taking or using depositions shall be as follows:

             (a)  a party shall not be deemed to make a person his or her own witness for any purpose by taking his or her deposition;

             (b)  the introduction in evidence of the deposition or any part thereof for any purpose, other than under rules 30.13(1)(a) and 30.13(1)(b), makes the deponent the witness of the party introducing the deposition; and

             (c)  at a trial or on a hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by him, her or any other party.

1986 c42 Sch D rule 30.13

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Penalty for refusal to attend, etc.

30.14. (1) When any person refuses or neglects to attend at the time and place appointed for that person's examination or refuses to be sworn or answer any question properly put to him or her or produce any document which the person is bound to produce, the Court may

             (a)  hold that person guilty of contempt;

             (b)  if the person is a plaintiff, dismiss the proceeding;

             (c)  if a defendant, strike out the defence; or

             (d)  grant such other order as is just.

             (2)  When a person so refusing or neglecting is an officer of a body corporate that is a party or is employed by a party, and the neglect or refusal is of a type for which the party ought to be held liable, the Court may

             (a)  if the party is a plaintiff, dismiss the proceeding;

             (b)  if a defendant, strike out the defence; or

             (c)  grant such other order as is just.

1986 c42 Sch D rule 30.14

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Order to terminate or limit examination

30.15. (1) Where an examination for discovery is being conducted in bad faith, or in an unreasonable manner so as to annoy, embarrass or oppress the deponent or any party, or where there is any other good cause, an examiner may

             (a)  stop the examination;

             (b)  limit the scope of the examination; or

             (c)  prescribe the manner of taking the examination.

             (2)  If the examiner makes an order pursuant to rule 30.15(1), either party or the deponent may apply to the Court within ten days to vary it.

             (3)  If the examiner stops the examination pursuant to rule 30.15(1)(a), either party or the deponent may apply to the Court within ten days for an order to continue it subject to such conditions as the Court in its discretion may prescribe.

             (4)  Upon the request of a party or a deponent, an examiner shall adjourn an examination for such period as shall be sufficient for the making of an application under rule 30.15(2).

1986 c42 Sch D rule 30.15

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Costs

30.16. Costs of examination for discovery not otherwise provided for shall, upon an order for taxation, be assessed according to the discretion of the taxing officer.

1986 c42 Sch D rule 30.16