Rules of the Supreme Court, 1986

Power to order deposition to be taken

47.01. (1) Where it appears necessary for the purposes of justice, the Court may grant an order for an examination on oath or affirmation of any person, at any place, before a judge, officer of the Court, or other person.

(2) The Court under rule 47.01(1) may, on such terms as the Court thinks just, including directions as to discovery before the examination, grant,

(a) where the person to be examined resides within the jurisdiction, an order in Form 47.01A;

(b) where the person to be examined resides outside the jurisdiction and in a province or territory of Canada or in a country with a government that allows a person in that country to be examined before a person appointed by the Court, an order in Form 47.01B; and

(c) where a person resides in any other country, an order in Form 47.01C, that shall authorize the issue of a letter of request in Form 47.01D to the judicial authorities of that country to take, or cause to be taken, the evidence of the person in that country.

1986 c42 Sch D rule 47.01; 9/00 s5

Letter of request

47.02. (1) Where an order is granted under rule 47.01(2)( c) for the issue of a letter of request, the letter of request shall be sent by the party obtaining the order to the Under Secretary of State for External Affairs of Canada and shall have attached to it

(a) the pleadings, if any, and such other documents as will inform the examiner of the material facts and questions in issue in the proceeding;

(b) any interrogatories and cross-interrogatories, if any, to be put to the person being examined;

(d) a copy of each of the documents translated into the official language of the country where the examination is to take place, or if there is more than one official language, the language appropriate to the place where the examination is to take place, and bearing the certificate of the translator that it is a true translation and giving his or her full name, address and qualifications to make the translation.

(2) The party obtaining an order under rule 47.01(2)( c) shall file with the Under Secretary of State for External Affairs of Canada an undertaking by that party or that party's solicitor to be personally responsible for all the charges and expenses incurred by the Under Secretary in respect of the letter of request and to pay the same on receiving notification of the amount.

1986 c42 Sch D rule 47.02

Enforcing attendance of persons at examination

47.03. (1) The attendance of any person to be examined within the jurisdiction under rule 47.01 and the production by that person of any document at the examination may be enforced by a subpoena.

(2) A person is not bound to attend at an examination within the jurisdiction or elsewhere or to produce any document thereat, unless that person is paid or tendered the witness fee provided by these rules.

(3) Where a person, subpoenaed under rule 47.03(1) and tendered the proper fee, refuses or fails to attend the examination, or refuses to be sworn or answer any lawful question or produce any document thereat, the examiner shall file a certificate to that effect with the Court, whereupon any party may apply ex parte to the Court for an order requiring the person to attend or be sworn or answer any question or produce any document.

(4) In granting an order under rule 47.03(3), the Court may order the person against whom the order was made to pay costs.

(5) A person who wilfully disobeys any order made under rule 47.03(4) is guilty of contempt of court.

1986 c42 Sch D rule 47.03; 36/14 s56

Appointment of time and place for examination

47.04. (1) The examiner shall, having regard to the convenience of the parties and of any person to be examined, appoint a time and place for the examination and cause reasonable notice thereof to be given to any such person and to the parties, their solicitors or agents, present within the jurisdiction where the examination is to take place.

(2) Where any party, the party's solicitor or agent so notified fails to attend pursuant to the notice, the examination may be carried out ex parte.

1986 c42 Sch D rule 47.04

Conduct of examination

47.05. (1) Subject to the directions contained in an order or letter of request, any person to be examined shall be examined upon oath or affirmation, and may be

(a) examined , cross-examined and re-examined in the same manner as a witness at a trial; and

(b) examined by the examiner as to the meaning of any answer made by him or her or of any matter arising in the course of the examination.

(2) Unless otherwise directed by the order or letter of request, an examination of a witness shall be by oral questions, and the questions and the answers thereto shall be reduced into writing and returned with the order or letter of request.

(3) Where an order or letter of request directs an examination to take place upon written interrogatories, the interrogatories in chief shall, unless it is otherwise ordered, be delivered to the opposite party at least ten days before the dispatch of the order or letter, and any cross-interrogatories shall be delivered to the opposite party within five days after the receipt of the interrogatories in chief, and in default of cross-interrogatories being delivered the opposite party may dispatch the order or letter of request without cross-interrogatories.

(4) The parties, their solicitors or agents shall be entitled to be present during the examination of any person.

(5) The examiner may adjourn an examination from time to time.

1986 c42 Sch D rule 47.05; 36/14 s57

Examination of additional persons

47.06. With the written consent of the parties or an order of the Court, the examiner may take the examination of any other person in addition to those named in the order for examination and shall annex the consent or order to the original deposition of the person.

1986 c42 Sch D rule 47.06

Objection to questions

47.07. (1) Where a person objects on an examination to answer any question put to that person, or objection is taken to any such question, the question, the ground of the objection, and the answer to the question shall be set out in the deposition of the person or in a statement annexed thereto.

(2) The validity of any objection shall be decided by the Court, and the Court, if it decides against the person taking the objection, may order that person to pay the costs occasioned by the objection.

1986 c42 Sch D rule 47.07

Production of documents

47.08. Where a person on an examination produces a book, letter, paper or other document and refuses for good cause, which shall be stated in the deposition, to part with the original, a copy or extract thereof certified by the examiner to be a true copy or extract, shall be annexed to the deposition of that person.

1986 c42 Sch D rule 47.08

Taking of depositions

47.09. (1) Unless it is otherwise ordered by the Court, a deposition shall be recorded or taken down by a reporter.

(2) Unless the person examined so requests, a deposition taken in shorthand need not be read over and signed by that person, but shall be certified and signed by the reporter and examiner.

(3) When a deposition is not taken down in shorthand, it shall be examined and signed by the person examined and the examiner, or if the person examined refuses or fails to examine and sign the deposition, the examiner shall certify and sign it.

(4) A copy of the deposition certified by the examiner or signed by the person examined shall have the same effect as the original deposition.

(5) The depositions, any interrogatories and cross-interrogatories, and any exhibits or certified copies thereof or extracts therefrom shall be sent to the Court.

1986 c42 Sch D rule 47.09; 36/14 s58

Special report by examiner

47.10. The examiner may make a special report to the Court with regard to any examination taken before the examiner and the absence or conduct of any person thereat, and the Court may make such order on the report as it thinks just.

1986 c42 Sch D rule 47.10

Transfer of examination

47.11. Where an examiner is unable or declines to take or complete an examination, the Court may appoint another person to act as the examiner in his or her place and give such directions as are just.

1986 c42 Sch D rule 47.11

Use of deposition in evidence

47.12. A deposition may be used in evidence on the trial or hearing as provided for in rule 46.11.

1986 c42 Sch D rule 47.12

Order for further examination

47.13. The Court may order a further examination of any person before the same or any other examiner, and if the party on whose behalf the person gave evidence refuses or fails to have the further examination conducted, the Court may decline to act on the evidence in the initial deposition.

1986 c42 Sch D rule 47.13

Order for payment of examiners fees

47.14. Where an examiner reports to the Court that his or her fees and expenses of an examination have not been paid, the Court may order each party to pay the fees and expenses resulting from the examination of his or her own witnesses, but the order shall not prejudice any subsequent order as to costs.

1986 c42 Sch D rule 47.14

Depositions before proceeding commenced

47.15. (1) A person, who desires to perpetuate the testimony of himself, herself or any other person regarding any cause of action within the jurisdiction of the Court, may apply to the Court on an originating application in an intended proceeding to perpetuate any testimony that may be material to establish or defend the cause of action.

(2) The applicant in the affidavit shall set out

(a) that the applicant expects to be a party to a proceeding within the jurisdiction of the Court, but is presently unable to bring, or cause it to be brought, for the reasons stated in his or her affidavit;

(b) the subject matter of the intended proceeding and his or her interest therein;

(c) the facts that the applicant desires to establish by the proposed testimony and his or her reasons for desiring to perpetuate it;

(d) the name and address of any person the applicant expects will be an adverse party and that person's interest in the proceeding; and

(e) the name and address as far as is known of any person to be examined and the substance of the testimony which the applicant expects to elicit from such person.

(3) The originating application shall be served personally or by publication or otherwise on any person or that person's representative, who is expected to be an adverse party in any subsequent proceeding, as the Court may on an ex parte application direct, and the Court may direct a solicitor to represent any person who is unrepresented on the hearing.

(4) Where the Court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it may make an order designating any person whose deposition may be taken, specifying the subject matter of the examination, whether the deposition shall be taken upon oral examination or by written interrogatories, and such other terms and conditions as may be just.

(5) Any deposition taken to perpetuate testimony may be used in any subsequent proceeding involving the same subject matter in accordance with the provisions of rule 46.12.

(6) The provisions of Rule 47 shall apply with any necessary modification, to any depositions taken to perpetuate testimony.

1986 c42 Sch D rule 47.15

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