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Saskatchewan CPLED Program Civil Procedure Section 4

Examinations for Discovery

Contents

Introduction .......................................................................Civil-4-1

Who Is Subject to Examination for Discovery?.................Civil-4-1 Examination of Parties Adverse in Interest: Rule 222 .......................................................................Civil-4-1 Examination of a Non-Party: Rule 222A ...................Civil-4-3 Examination of a Corporation: Rule 223 ...................Civil-4-7 Examination of an Infant: Rule 222 .........................Civil-4-11

Arranging for Examination for Discovery .......................Civil-4-11 Timing for the Examination: Rule 226.....................Civil-4-11 Location of the Examination: Rule 227 and Rule 229..............................................................Civil-4-12 Scheduling the Examination: Rule 227, Rule 228 and Rule 229..............................................................Civil-4-14

Conducting the Examination...........................................Civil-4-17 Preparing for Examination ........................................Civil-4-17 Your Examination for the Opposing Party ...............Civil-4-18 The Examination of Your Client...............................Civil-4-23 Who Can Be Present at the Examinations for Discovery..............................................................Civil-4-24 Undertakings..............................................................Civil-4-25

Use of Examination for Discovery: Rule 239..................Civil-4-26 Use of the Examination in the Action .......................Civil-4-26 Use of the Examination for Other Purposes..............Civil-4-27

Examinations Under the Simplified Procedure ...............Civil-4-28

No part of this material may be reproduced, in whole or in part Civil–4–i (in any manner), without the specific written permission of The Law Society of Saskatchewan. 2009 © The Law Society of Saskatchewan.

Civil Procedure Section 4 Examinations for Discovery 2009 © The Law Society of Saskatchewan

Civil–4–ii Saskatchewan CPLED Program

Civil Procedure Section 4 2009 © The Law Society of Saskatchewan Examinations for Discovery

Saskatchewan CPLED Program Civil–4–1

Introduction

The examination for discovery of the opposite party is the most important part of the pre-trial process, since it is the only opportunity to examine the other party under oath before trial. The purposes of the examination for discovery are as follows:1

• to allow the parties to ascertain whether the plaintiff has a good cause of action, or whether the defendant has such a defence, as would render further litigation useless;

• to obtain admissions that prove your case or undermine your opponent’s case, which can be used as evidence at trial;

• to determine your opponent’s version of the facts on which he will rely, so as to learn the case you will have to meet at trial, and avoid any surprises at trial;

• to determine or narrow the issues that will be dealt with at trial; or

• to facilitate settlement.

The rules relating to examinations for discovery in Saskatchewan are found in Part Twenty-One of The Queen’s Bench Rules, Rules 222 to 240.

Who Is Subject to Examination for Discovery?

Examination of Parties Adverse in Interest: Rule 222 Any party to an action may examine any other party to the action who is “adverse in interest” without the need for a court order (Rule 222). Pleadings will determine whether one party’s interest is adverse to another party’s interest.

1 Cominco Ltd. v. Phillips Cables Ltd., [1987] S.J. No. 143 (Sask. C.A.); Amax Potash Ltd. v. Saskatchewan, [1978] S.J. No. 173 ( Sask. C.A.); Garrett Estate v. Cameco Corp., [2000] S.J. No. 475 (Sask. Q.B.); and Soke Farm Equipment, infra note 66.


Civil–4–2 Saskatchewan CPLED Program

A party “adverse in interest” is not limited to a party that is on the opposite side of the record. Rather, a party is adverse in interest to another party if it has “a direct pecuniary or other substantial legal interest adverse to the legal interest of the other party” – even if they are on the same side of the record.2 Co-defendants may therefore examine each other if they are adverse in interest. Third parties may also examine each other if they are adverse in interest, even where no pleadings pass between them.3 For example, in Sisters of St. Joseph of Pembroke v. Hilsden and Co. (1963)4 the Court determined that the third parties were adverse in interest because it was important to each that the other be held solely responsible for the plaintiff’s harm.

A Person Who Benefits from the Action is a Party: Rule 224 For the purpose of examination under Rule 222, a party may include a person for whose immediate benefit an action is prosecuted or defended but who was not named in the action (Rule 224). As a result of this Rule, a party adverse in interest may examine a person for whose immediate benefit an action is prosecuted or defended. To proceed with this right of examination without the necessity of a court order, however, the pleadings should disclose that the action is being prosecuted or defended for the immediate benefit of another.5

A person for “whose immediate benefit an action is prosecuted or defended” has been found to include: (a) individual condominium owners where the plaintiff was the condominium corporation,6 and (b) individual members of an association where the plaintiffs (4 members of the association) brought an action on behalf of all individual members of the association.7 Persons who might retain a residual, as opposed to an “immediate,” benefit will normally not be subject to an examination under Rule 224.8

2 Rose & LaFlamme Ltd. v. Campbell, Wilson, & Strathdee Ltd., [1923] 4 D.L.R. 92 (Sask. C.A.). 3 Sisters of St. Joseph of Pembroke v. Hilsden and Co. (1963), [1975] S.J. No. 361 (Sask. Q.B.). 4 Ibid. 5 Johnson v. Hawkes, 1924 CarswellSask 97 (Sask. C.A.). 6 See cases referred to and endorsed in: Condominium Plan No. 86-S-360901 v. Remai Construction (1981) Inc., [1988] S.J. No. 753 (Sask. Q.B.). 7 Seniuk v. Saskatchewan (Minister of Justice), [1996] S.J. No. 286 (Sask. Q.B.). 8 Johnson v. Hawkes, supra and Dominion Stores Ltd. v. Wildwood Mall Ltd., [1984] S.J. No. 378 (Sask. Q.B.).



In circumstances where there are numerous persons that would benefit from the action, it would be impractical and costly to examine each person individually. The better approach is to examine only those persons that have knowledge, which goes beyond that of the named party (determined, perhaps, with the assistance of counsel).9

An Assignor of a Chose in Action: Rule 225 An assignor of a chose in action may also be subject to discovery where the assignee has brought an action (Rule 225).

Examination of a Non-Party: Rule 222A Before the introduction of Rule 222A in 1987, there was no provision for the examination for discovery of non-parties. In fact, in Runge v. Botkin10 the Saskatchewan Court of Appeal specifically held that non-parties could not be subject to an examination for discovery. This sometimes left counsel in the position of being unable to assess relevant information before trial when it was in the hands of an uncooperative non-party. The result was Rule 222A.11

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for

at courts tend not to permit fishing expeditions under 12

rt is satisfied that the following other conditions have been met:13

In What Circumstances Can a Non-Party Be Examined? Rule 222A(1) permits any party to an action, with leave of the couto examine for discovery any person who may have information relevant to a material issue in the action. In effect, the court will havto be satisfied about the nature of the non-party’s evidence and its relevance before ordering a non-party to attend an examinationdiscovery under Rule 222A. This is consistent with the general recognition thRule 222A.

In addition, under Rule 222A(2), the court will not gra nt leave to examine a non-party unless the cou

9 Ibid . 10 (1987), 57 Sask. R. 1 (Sask. C.A.). 11 C.D.F. (Litigation Guardian of) v. Saskatchewan Rivers School Division, [2002] S.J. No. 581 (Sask. Q.B.). 12 Swerhone v. Brost (1988), 68 Sask. R. 260 (Sask. Q.B.). 13 For a case considering whether these criteria have been met see: Hill v. Saskatchewan Power Corp., [1993] S.J. No. 251 (Sask. Q.B.); Alvin’s Auto Service Ltd. v. Clew Holdings Ltd., [1993] S.J. No. 14 (Sask. Q.B.).



1. the applicant has been unable to obtain the information

from other persons whom the applicant is entitled to examine (i.e., parties adverse in interest), or from the person the applicant seeks to examine;

2. it would be unfair to require the applicant to proceed to trial without having the opportunity to examine the person; and

3. the examination of the person will not: a. unduly delay the commencement of trial; b. entail unreasonable expense for other parties; and c. result in unfairness to the person the applicant

seeks to examine.

Even where these conditions are satisfied the court maintains a discretion to refuse to order the examination of a non-party. This is apparent from the language of the Rule, which provides that the court may grant leave to examine a non-party.

Saskatchewan courts have emphasized that Rule 222A does not give a party an unrestricted right to examine any person for discovery.14 Courts are therefore unwilling to expand non-party discoveries beyond the express confines of Rule 222A. For instance, courts will generally not permit the examination of a non-party where the applicant can obtain the information sought from the non-party through undertakings given by the party adverse in interest – even where this process is cumbersome.14 However, the Court in Alvin’s Auto Service Ltd. v. Clew Holdings Ltd.15 allowed the examination of a non-party despite the fact that the plaintiff was making inquiries to obtain the non-party’s relevant information. The Court there found that the defendant should not be limited to obtaining information through the non-party solely through the plaintiff and its counsel in circumstances where the non-party was the source for almost all the plaintiff’s undertaking responses, the non-party acted as the plaintiff’s agent in the material transaction, and the non-party would be the plaintiff’s main witness at trial. Along similar lines, see also: Shindle & Bazin Oilfield Construction Ltd. v. Kelly Panteluk Construction Ltd.16

14 See: International Minerals & Chemical Corporation (Canada) Limited v. Commonwealth Insurance Company, [1992] S.J. No. 574 (Sask. Q.B). 15 Alvin’s Auto Service Ltd., supra. 16 [2001] S.J. No. 332 (Sask. Q.B.).



Another case has suggested that it might also be appropriate to allow an examination of a non-party where the information sought is provided by the party being examined in a “totally unacceptable fashion.”17

More recently, in Popowich v. Saskatchewan,18 the Chief Justice allowed the examination of a non-party where the information sought was exclusive to the non-party and could only be provided by him. In particular, the information sought in Popowich involved the non-party’s state of mind and his motivation for engaging in certain conduct. In the Chief Justice’s view, such information could not realistically be obtained from a party to the action or from anyone other than the non-party himself.

The Chief Justice in Popowich also commented on the condition in Rule 222A(2)(c)(iii) that the examination of the non-party must not result in unfairness to him. He stated that, although the examination would be emotionally trying on the non-party, this alone did not make it unfair.19

Overall, the right to examine a non-party under Rule 222A will have to be evaluated on a case-by-case basis. All applications to examine a non-party, however, must be brought after the parties have been examined for discovery. Only then will it be apparent that the information sought cannot be obtained from a party to the action.20 Moreover, the application should be brought by a party only after he or she has attempted to contact the non-party for the relevant information and the non-party refused to provide it voluntarily.21

Can an Expert Be Examined as a Non-Party? It is important to note that Rule222A does not permit a party to examine an expert engaged by or on behalf of another party in preparation for contemplated or pending litigation, notwithstanding that he or she may have information relevant to a material issue in the action. This exception does not apply, however, to an independent consultant retained to provide an

17 International Minerals, supra. 18 [2002] S.J. No. 171 (Sask. Q.B.). 19 Ibid. at para.12. 20 Sterling v. Sullivan, [2003] S.J. No. 530 (Sask. Q.B.); and Flysak v. St. Paul’s Roman Catholic Separate School Division No. 20, [2002] S.J. No. 2 (Sask. Q.B.). 21 Kvello v. Miazga, [2002] S.J. No. 775 (Sask. Q.B.); and Hepworth v. Zerbin, [1992] S.J. No. 623 (Sask. Q.B.).



opinion or assessment for a purpose other than “in preparation for contemplated or pending litigation.” For example, in Dick v. Saskatoon (City)22 the Chambers Judge granted an order that allowed the plaintiff to examine an independent consultant who had been retained by the defendant for a purpose other than “pending or contemplated litigation.” In particular, the independent consultant was retained to review the plaintiff’s medical practices to facilitate the removal of the plaintiff from the defendant’s medical staff, either voluntarily or through a disciplinary hearing. At the time of the consultant’s retainer, litigation between the parties was not pending or even contemplated. An examination of the consultant was therefore not precluded under Rule 222A. This view was also shared by Halvorson J. in International Minerals & Chemical Corp. (Canada) v. Commonwealth Insurance Co.23 where he stated: “I am of the view the rule should be liberally construed to allow examination of an expert concerning matters which arose prior to the expert being retained in the litigation.”24

As a result of these cases, a party would be wise to inform himself or herself of the basis for any relevant expert opinions provided before the action was issued or contemplated. The party should then be able to answer the examining party’s questions about the opinion directly, so as to subvert the possibility that the expert will be subject to an examination under Rule 222A.

Similarly, a medical practitioner will not be an “expert engaged by or on behalf of a party in preparation for contemplated or pending litigation” if the practitioner conducted a medical assessment of one party pursuant to order of the court (under s. 36 of The Queen’s Bench Act, 1998). In these circumstances, the medical practitioner is in the position of a witness available to both sides and may be examined by one party under Rule 222A, provided the court is satisfied that the conditions in Rule 222A have otherwise been met.25

22 (1989) 77 Sask. R. 39 (Sask. Q.B.). 23 [1990] S.J. No. 534 (Sask. Q.B.). 24 Ibid. at p. 4. 25 Abday v. Mass, [1987] S.J. No. 437 (Sask.Q.B.).



Limited Use of Non-Party’s Evidence One final observation about the examination of a non-party under Rule 222A: if the examination of the non-party proceeds pursuant to court order, the evidence taken at the examination may not be read into evidence at trial (Rule 222A(5)). This is unlike evidence taken at the examination of a party adverse in interest, which may be read in at trial under Rule 239.

Examination of a Corporation: Rule 223 Since a corporation cannot speak itself, a representative of the corporation must attend for an examination for discovery under Rule 223. Although Rule 223(1) allows a party adverse in interest to the corporation to examine “anyone who is or has been an officer or servant of the corporation,” only the examination of a corporation’s current officer may be used as evidence against the corporation at trial (Rule 223(2)). A current officer of the corporation is therefore the person who is usually subject to an examination under Rule 223(1).

The parties may agree on the proper officer to give the corporation’s evidence in an examination for discovery. Alternatively, if the parties cannot agree, then the examining party can apply to the court to designate the proper officer for examination (Rule 223(3)).

Designation of the Proper Officer: Rule 223(3) The proper officer for examination need not be a senior executive officer of the corporation, so long as he or she has a certain amount of control or authority in the corporation and enough standing and importance to represent and speak for the corporation.26 At the same time, the proper officer should also be someone who has spersonal knowledge of the facts and matters at issue in the action. The presence of these factors will facilitate two of the primary objectives of an examination for discovery; that is: to obtain a full discovery of the facts and to obtain admissions that can be used against the corporation.

ome

27

26 Tundra Mechanical & Millwrighting (1988) Ltd. v. Ecco Heating Products Ltd., [1996] S.J. No. 781 (Sask. Q.B.). 27 Canadian Doughnut Co. v. Canadian Egg Products Ltd. (1952), 5 W.W.R. (N.S.) 428 (Sask. Q.B.), aff’d (1952), 6 W.W.R. (N.S.) 684 (Sask. C.A.).



When an application is made to the court to designate a proper officer under Rule 223(3), the examining party will ordinarily propose to the court that a particular person from the corporation be examined, whereas the corporation will propose that a different person be examined. Where this is the case, the court will consider firstly whether the persons proposed occupy positions of sufficient importance and authority in the corporation to speak on its behalf. If only one person occupies a position of such importance and authority within the corporation, the court will designate that person as the proper officer.28 This should be the result even if that person is not the most knowledgeable about the litigation since, as the Saskatchewan Court of Appeal has pointed out, he or she has a duty to inform himself or herself in any event.28

If both persons have sufficient authority to speak on behalf of the corporation, then the court will move on to consider which one of the persons has the most knowledge about the subject matter of the litigation.29 This will usually be determinative except perhaps where the particular facts of the case warrant a different result, such as, for example where the designation of one person would create an undue hardship for the corporation30 or where the person to be designated had interests contrary to the interests of the corporation.31

In the rare case where the two persons proposed hold equivalent positions within the corporation and have an equivalent connection to the litigation, the court might give the examiner’s proposal deference.32

28 Westfair Foods Ltd. v. 612469 Saskatchewan Ltd., [2002] S.J. No. 579 (Sask. C.A.); and London Life Insurance Co. v. Bristowe, [1982] S.J. No. 26 (Sask.C.A.). 29 Tundra Mechanical, supra note 27. See also: R.W.J. v. Canada (Attorney General), [2002] S.J. No. 461 (Sask. Q.B.). 30 International Minerals & Chemical Corp. (Canada) v. Commonwealth Insurance Co., [1990] S.J. No. 534 (Sask. Q.B.). 31 Moncur v. Regina (City), [1986] S.J. No. 628 (Sask. Q.B.). 32 Tundra Mechanical, supra note 27.



The Duty of the Corporate Officer Once a proper officer has been designated for examination, then he or she has a duty to inform himself or herself of the facts at issue, including those facts within the personal knowledge of other officers, directors, employees, or agents of the corporation. The proper officer’s duty, however, should not extend to acquainting himself or herself with information within the personal knowledge of an independent contractor.33

The proper officer is also under a duty to make inquiries of former employees about their knowledge of the material facts that they acquired in the course of their employment with the corporation.34 This sometimes occurs through the undertaking process at the examination – the officer undertakes to make certain inquiries of former employees to obtain the relevant information. The undertaking is fulfilled so long as the proper officer uses reasonable efforts to obtain the information from the other individuals. However, it may now be more appropriate for the examining party to attempt to obtain the relevant information directly from the former employees or agents of the corporation. Where this can be done, it is less likely that a court will compel the officer to do the same.35

Examination of the Crown as a Corporation The Provincial Crown is the equivalent of a corporation for the purpose of an examination for discovery with the exception that it can refuse to answer a question on the ground of public interest.36 This means – in part – that the court can designate the Provincial Crown’s proper officer for examination under Rule 223(3). The same considerations that apply to the designation of a corporation’s proper officer also apply to the designation of the proper officer for the Provincial Crown.37

The Federal Crown is similarly the equivalent of a corporation for the purpose of an examination for discovery in proceedings brought in a Saskatchewan court (subject to certain provisions in the Canada Evidence Act).38 However, a federal regulation specifically provides

33 Poole v. Native Metal Industries Ltd., [1983] S.J. No. 108 (Sask. Q.B.). 34 Signcorp Investments Ltd. v. Cairns Homes Ltd., [1988] S.J. No. 42 (Sask. Q.B.). 35 Garrett Estate, supra note 1. 36 The Proceedings Against the Crown Act, R.S.S. 1978, s. 13 (as amended). 37 Central Canada Potash Co. v. Saskatchewan (Attorney General), [1973] S.J. No. 69 (Sask. Q.B.). 38 Crown Liability and Proceedings (Provincial Court) Regulations, SOR/91-604 s. 7.



that the Deputy Attorney General may designate the officer for examination, or the court may designate the officer thereafter. This has been interpreted to mean that the examining party is bound to accept the Deputy Attorney General’s designated representative for the examination, unless the examining party can demonstrate that the designated representative is not informed and is not capable of being informed. If the examination of that designated representative proves unsatisfactory, then the examining party may apply to the court to examine another Federal Crown officer.39

Examination of a Second Officer or Servant: Rule 223(4) After a party has examined an officer or servant of the corporation, it may be permitted to examine a second officer or servant of the corporation with leave of the court (Rule 223(4)). Leave should only be granted, however, if the first examination was unsatisfactory40 or where the first person examined was unable to give sufficient information at the discovery.41 In general, the first examination will be satisfactory when the officer or servant adequately informed himself or herself about the matters in issue and if he or she was able to respond to the questions put to him or her at the discovery – either directly or through undertakings.42

Leave under Rule 223(4) may also be granted where the court determines that a second examination is most practical in the circumstances, as it might be, for example, in extremely complex litigation.43

A party may also apply pursuant to Rule 222A to examine an employee of a corporation as a non-party, if the party was unable to obtain the relevant information from the officer of the corporation in the course of the examination for discovery.

39 Hubrisca Enterprises Ltd. v. Canada (Attorney General), [1998] B.C.J. No. 122 (B.C.S.C.). This was also consistent with the Federal Court Rules on Examinations for Discovery of the Crown: Rule 456. See also Border Enterprises Ltd. v. Beazer East, Inc., [2003] B.C.J. No. 36 (B.C.S.C.). And see Northern Goose Processors Ltd. v. Canadian Food Inspection Agency, [1999] M.J. No. 573 (MB Q.B.) which distinguished Hubrisca but this Northern Goose decision was distinguished in Border Enterprises. 40 United Grain Growers Ltd. v. Hill, [1999] S.J. No. 679 (Sask. Q.B.). 41 Perley v. Pasqua Hospital (1979), 13 C.P.C. 12 (Sask. Q.B.). 42 Saskatoon Institute of Applied Science and Technology v. Hagblom Construction (1984) Ltd., [2003] S.J. No. 719 (Sask. Q.B.); and United Grain Growers Ltd. v. Hill, supra. 43 International Minerals & Chemical Corp. (Canada) v. Commonwealth Insurance Co., [1992] S.J. No. 574 (Sask. Q.B.). See also Saskatchewan Institute of Applied Science and Technology v. Hagblom Construction (1984) Ltd., [2003] S.J. No. 719 (Sask. Q.B.) which refused a second examination because the examining party failed to demonstrate that the first examination was unsatisfactory.



Examination of an Infant: Rule 222 In Abrahamson v. Buckland44 the Saskatchewan Court of Appeal concluded that infants are subject to examination for discovery under Rule 222. However, if an infant is incapable of providing testimony under oath or is otherwise incompetent, the infant’s litigation guardian may apply to the court for directions under Rule 49(2) before proceeding to the examination.45 The Court will then direct whether or not it is appropriate to examine an infant party in the circumstances.

Arranging For Examination for Discovery

Timing for the Examination: Rule 226 Rule 226 provides that the plaintiff can examine the defendant for discovery at any time after the defendant has filed his or her Statement of Defence or the time for doing so has expired, and the defendant may examine the plaintiff for discovery at any time after his or her statement of defence has been filed. Despite this, the general practice is to proceed to examinations for discovery only after the pleadings have been closed and statements as to documents have been exchanged.46 It is also typical practice for the plaintiff to examine the defendant(s) first.

In limited circumstances, an examination for discovery may be postponed or stayed pending the outcome of a related proceeding that could impact the current litigation. This will only be permitted, however, when proceeding to examinations for discovery would cause an injustice or prejudice to the party opposing the examinations.47

44 [1990] S.J. No. 249 (Sask. C.A.). 45 Ibid. On an application for directions under Rule 49(2), the court should have regard for rules governing the examination of witnesses generally, including those found in The Saskatchewan Evidence Act. 46 Green v. Praski , [1985] S.J. No. 738 (Q.B.). 47 See, for example, Saskatchewan Trust Co. (Liquidator of) v. Darwal Enterprises Ltd., [1995] S.J. No. 348 (C.A.).



Location of the Examination: Rule 227 and Rule 229 Most examinations for discovery are held in a boardroom at the law offices of counsel, at the office of the court reporter, or at a hotel meeting room.

For Persons Residing in Saskatchewan: Rule 227 If a person to be examined resides in Saskatchewan, the examination will occur in the judicial centre nearest the place where the person resides unless otherwise ordered or agreed (Rule 227). The examining party may procure an appointment for the examination from the local registrar to that effect (see discussion under heading “By Appointment: Rule 227, Rule 228 and Rule 229”).

Under this Rule, “resides” has been interpreted to mean the place where the person being examined resides for the purposes of the action.48 In Gryba (Litigation guardian of) v. Wadena Union Hospital Board49 the Court determined that, for the purpose of the action, the defendant resided in Saskatchewan (even though he had relocated to Maryland at the time of the examination) since the defendant resided in Saskatchewan at the time material to the action, the defendant resided in Saskatchewan at the time the action was commenced, and the defendant agreed that he resided in Saskatchewan in his Statement of Defence. As a result, it was appropriate for the defendant to be examined in Saskatoon, and he was only entitled to conduct money to travel from his Saskatchewan residence to the examination in Saskatoon. The Court observed, however, that had the defendant in Gryba applied to be examined outside of Saskatchewan under Rule 229 (see below) given his change in residence, the result may well have been different. In other words, if a party is served with an appointment to be examined in Saskatchewan, but he has relocated to another jurisdiction, then the party should apply for an order to either move his examination to his new location of residence or to determine the amount of conduct money to which he is entitled.

48 Abramson v. United States Fire Insurance Company, [1927] 1 W.W.R. 252 (Sask. C.A.). 49 [1990] S.J. No. 661 (Sask. Q.B.).



More recent authority also suggests that a person who has relocated to a different province, or a person who is temporarily absent from Saskatchewan, can apply under Rule 229 to be examined as a person “who is not in Saskatchewan.” In these circumstances, the court may order that the examination occur in the person’s new or temporary residence, or alternatively that the examination occur in Saskatchewan with conduct money calculated on the basis of the person’s new or temporary residence.50 (See Rule 229 below.)

For Persons Residing Outside of Saskatchewan: Rule 229 If a person to be examined is not in Saskatchewan, the court may order the person to attend for an examination before a particular person and at a particular place (Rule 229). Under Rule 229, the court will order the examination to occur in the place where it is most just and convenient in the circumstances.51 Although this usually means that the court will order the examination to occur in the location where the person to be examined resides or temporarily resides, it may also mean that in some cases the court will order the person to attend an examination in Saskatchewan where the examining party establishes that this would be more just and convenient.

For example, in Newgrade Energy Inc. v. Kubota America Corp.52 the Court ordered that the officers of the defendant corporation – who resided in Japan – attend examinations for discovery in Saskatchewan as this was more just and convenient. The following factors were relevant to this determination: the defendant corporation submitted to the jurisdiction of Saskatchewan by filing a defence; counsel were located in Saskatchewan; the employees and officers of the plaintiff who were involved in the material transaction were located in Saskatchewan; experts for both parties were located in Canada and it likely would have been necessary to consult with experts during the discovery process given the technical nature of the action; documents relevant to liability were voluminous and were all located in Saskatchewan; and pre-trial motions regarding examinations for discovery were expected and these would proceed before a Saskatchewan court.

50 Milton (Litigation guardian of) v. Smith and Nephew Inc., [1997] S.J. No. 755 (Sask. Q.B.). 51 Newgrade Energy Inc. v. Kubota America Corp., [1995] S.J. No. 200 (Sask. Q.B.). 52 Ibid.



It is important to remember that an examination of a person not residing in Saskatchewan cannot proceed without first obtaining a court order under Rule 229, unless the parties come to their own agreement about location of the examination and conduct money.53

Scheduling the Examination: Rule 227, Rule 228 and Rule 229 By Consent In most cases, examinations for discovery can be scheduled with the consent of counsel. The dates, times and place for examinations are settled among counsel and these details are confirmed with the clients. One counsel should then arrange for a court reporter to attend the examination (usually with the help of the counsel’s assistant).

After you have scheduled an examination for discovery, it is wise practice to send a letter confirming the examination with other counsel and with your client. This will help ensure that there are no scheduling errors.

By Appointment: Rule 227, Rule 228 and Rule 229 If counsel cannot agree on the dates, times, and place for examinations for discovery, or if opposing counsel is otherwise uncooperative, then it will be necessary to procure an appointment from the local registrar of the judicial centre nearest the place where the person to be examined resides, if he resides in Saskatchewan (Rule 227). An appointment must be served on counsel for the person to be examined at least five days before the date for examination if the person resides at a judicial centre or at least 10 days before the date for examination if the person does not reside at a judicial centre (Rule 228(1)). Proper conduct money must accompany service of the appointment.

If the person to be examined does not reside in Saskatchewan, then the appointment must be accompanied by a court order pursuant to Rule 229 and the proper conduct money.

53 Laliberte v. Rodenbush, [1995] S.J. No. 771 (Sask. Q.B.) at para. 7.



By Subpoena: Rule 228(3) The examining party may also serve a subpoena (along with the proper conduct money) personally on the person to be examined requiring his attendance at the time and place appointed for the examination. If you serve a subpoena, it is also necessary to serve counsel for the person to be examined with an appointment at least 48 hours before the time for the examination (Rule 228(3)).

By Court Order: Rule 227 and Rule 229 Under Rule 227, the court may order the examination to be held before any person and at any place other than in the judicial centre nearest to the place where the person to be examined resides. Absent this court order, the appointment must specify the location of the examination as the judicial centre nearest the residence of the person to be examined.

Under Rule 229, the court may order the examination of a person not in Saskatchewan before any such person and at any such place. A court order for an examination is always required where the person to be examined is not residing in Saskatchewan. Reference should be made generally to the discussion above under the heading “Location of the Examination: Rule 227 and Rule 229.”

The court may also order a person to attend for an examination where that person already refused or neglected to attend at the time and place first appointed for an examination.54 This order is usually made in the context of contempt proceedings for failing to attend an examination for discovery under Rule 231 (discussed below).

If the person to be examined is in custody, the court may order the person in custody to attend in the custody of a police officer to be examined for discovery pursuant to the court’s jurisdiction under section 9 of The Queen’s Bench Act and such an application may be made ex parte.55

54 Crane Canada Inc. v. 4-S Mechanical Ltd., [1985] S.J. No. 717 (Sask. Q.B.). 55 Bergen v. Davey, 2006 SKQB 149 2006 Carswell Sask 253.


Adjournment of the Examination or Failure to Attend the Examination: Rule 231 An examination for discovery may be adjourned at the request of either party. Counsel will usually agree to adjourn the examination and will schedule a new examination date. However, if the other counsel refuses to agree to an adjournment of the examination, then the adjournment should be made by court order.

If the person to be examined fails to appear at the examination for discovery, then the examining party should do one of two things:

1. serve an appointment and/or a subpoena requiring the person to attend on a new date, if the examination was arranged by consent, or

2. make an application to dismiss the person’s claim (if the person is the plaintiff) or strike the person’s defence (if the person is the defendant) and to hold the person in contempt under Rule 231, if the examination was scheduled by appointment or subpoena.

The court usually will not strike the person’s pleadings for failing to attend the first examination at the appointed time and place. Instead, the court will usually order the person to attend for an examination, failing which the person’s pleadings will be dismissed or struck and the person will be found in contempt of court under Rule 231. Note that a corporation may have its pleadings dismissed or struck under this Rule if the person designated as the corporation’s officer fails to attend the examination when ordered.



Conducting the Examination

Preparing for Examination Preparation by counsel is essential for a successful examination for discovery.

Preparing Your Client for an Examination You must prepare your client for the examination for discovery. This is done through a preparatory meeting with your client, or if necessary, through a series of preparatory meetings.

The amount of preparation time required with your client will depend on the complexity of the case, your client’s knowledge and abilities and your client’s previous experience with examinations for discovery.

At the preparatory meeting(s), you should explain to your client the general procedure of an examination for discovery, the physical arrangements, who will be in attendance and other basic information about examinations for discovery. You should also explain the purposes of an examination for discovery. In particular, you should make your client aware that his or her examination can only be used to support the examining party’s case; the examination cannot be used in support of his or her own case. This might alleviate any tendency your client might have to overstate his or her case at the examination for discovery.

You should then review the issues in the action, the pleadings and the relevant documents with your client. Discuss these items carefully so that your client is familiar with them and is comfortable with the upcoming examination. You may also want to assume the role of the examining counsel and question your client about the details of the action.

Finally, it is a good idea to give your client some general instructions or advice, including the following:

1. listen to the entire question and think about it before you answer;

2. don’t guess – if you do not know the answer, say so; 3. don’t volunteer information that you have not been asked

about; and most importantly, 4. tell the truth!




Preparing for the Examination of the Opposing Party In preparing to examine the opposing party, you may write out the questions you wish to ask at the examination. Although this will provide a useful plan for the examination, you must still be prepared to react to the answers given at the examination and to adjust your examination accordingly. An alternative is to prepare a checklist of all points you wish to address at the examination and use this as your guide for questioning.

You should also prepare a list of the documents that you will question the opposing party on at the examination. You may choose to mark these documents as exhibits at the examination or you may simply refer to the documents on the record by the numbers assigned to them in the parties’ Statement as to Documents. The latter is more efficient.

Finally, you should decide what style of examination would be most effective for you at the discovery. There are two basic styles of examination: the “chronological method” and the “skipping method” (also called the “grasshopper method”). The questions asked under the chronological method follow the issues in chronological order. The questions asked under the skipping (or grasshopper) method skip from one issue or time frame to a completely different issue or time frame. Sometimes a combination of these two techniques may produce the best results. Whatever style of examination you choose to follow, be prepared to change it if your assessment of the opposing party requires.

Your Examination for the Opposing Party You may only examine the opposing party once unless there are special circumstances that justify a second examination for discovery or justice otherwise requires it,56 such as when the following occurs:

1. the opposing party amends his pleadings after his examination is complete57;

2. the opposing party discloses important evidence after his examination is complete58; or

56 Newbigging v. Loewen Group Inc., [1994] S.J. No. 425 (Sask. Q.B.). 57 Graham v. Shannon, [1919] 2 W.W.R. 30 (Sask. K.B.). See also: Duke v. Vervaeck, [2000] S.J. No. 591 (Sask. Q.B.); and McQueen Agencies Ltd. v. Warken, [1999] S.J. No. 110 (Sask. C.A.). 58 Hellofs v. Royal Bank, [1940] 1 W.W.R. 6 (Sask. Q.B.).



3. counsel for the opposing party at the first examination was

so unreasonable and disruptive that the examination was unsatisfactory.59

In these circumstances, the opposing party may simply consent to a second examination on the subjects raised in the new pleadings or evidence, or you may have to obtain leave of the court to re-open the examination.

Because you will only have one opportunity to examine the opposing party, it is imperative that you conduct a thorough examination. Ask questions that are concise, complete, and to the point so that you elicit as much relevant information as possible. Lengthy and awkward questions rarely elicit useful answers.

Scope of the Examination: Rule 222 The scope of an examination for discovery is wide and extensive enough to include all questions which may be relevant to the issues raised in the pleadings. In other words, the test under Rule 222 is one of “broad relevance.” The opposing party will be obliged to answer any questions about “facts that are or may be relevant to the determination of the facts in issue.”60

You therefore may ask the opposing party questions that are searching, exploratory and leading so long as they are or could be relevant to the issues raised in the pleadings. A question is relevant if it “touches” the matters in question, it “might possibly affect” the issues between the parties, it “bears upon” any issue between the parties,61 or “it directly or indirectly enables a party to advance his own case or destroy that of his adversary, or may fairly lead to a train of inquiry which may have either of these consequences.”62

The test of relevance in the discovery context is obviously broader than the test of admissibility at trial.63 The fact that a question and answer may be permitted and required at an examination discovery does not then mean that it will be automatically admissible at trial.

for

64

59 Band City Aviation Ltd. v. British Aviation Insurance Co., [1991] S.J. No. 56 (Sask. Q.B.). 60 Arcola, infra note 67. 61 Rule 222; Cominco Ltd. v. Phillips Cables Ltd., [1987] S.J. No. 143 (Sask. C.A.); and Milton Farms Ltd. v. Dow Chemical Canada Inc., [1986] S.J. No. 600 (Sask. Q.B.). 62Garrett Estate v. Cameco Corp., [1999] S.J. No. 666 (Sask. Q.B.). 63Cominco Ltd., supra . 64Ibid. and Garrett Estate, supra notes 1 and 63.



Historically, the general rule was that a party to an action was required to disclose the facts upon which he relied but not the evidence by which the facts would be proved or the names of potential witnesses with relevant information. The rule was based primarily on a competition theory (the “sporting theory of justice”) and on the fear that the disclosure of evidence would permit an opposing party to fabricate evidence and tamper with potential witnesses. In recent years, however, Saskatchewan courts have moved away from the strict rule in favour of broad discovery based on the view that surprise at trial is an enemy rather than a friend of truth. In SokeFarm Equipment v. NewHolland of Canada Ltd.65 the Court of Appeal specifically rejected the traditional reasons for non-disclosure of witnesses and ordered that the names of witnesses with knowledge of material facts be disclosed. At para.14 the court stated:

Accordingly, neither of the two traditional reasons supporting the rule of non-disclosure of names of potential witnesses with knowledge of material facts should now be accepted as valid. The “sporting theory” is now considered to be, at best, a game of “hide and seek” and, at worst, “trial by ambush.” The prevalent view is that broad discovery is to be encouraged as protecting from surprise, uncovering relevant evidence, encouraging settlement, focussing the issues, pinning witnesses down, permitting counsel to size up the case, and ensuring a decision of the case after a full consideration of all relevant issues. The risk of permitting fabrication of evidence or tampering with potential witnesses applies equally to a person refusing to disclose their names to the other party, and indeed, broad discovery by both parties limits the opportunities to do these things.

Following SokeFarm Equipment, supra courts may order a party to disclose the names of potential witnesses having knowledge of relevant facts unless an exceptional reason can be shown. However, an opposing party will not be required to disclose information where it is properly the subject of litigation or solicitor-client privilege.66

65 [1990] S.J. No. 68 (Sask C.A.). 66 Arcola School Division No. 72 v. Hill (Litigation Guardian of), [1999] S.J. No. 596 (Sask. C.A.).



Similarly, the opposing party will not normally be required to disclose the opinions of its experts at the examination for discovery (these are usually privileged), but he will have to provide the facts on which such opinions are based.67 The opposing party may also be required to reveal his position on allegations made in the pleadings at discovery, even if that position incidentally reveals his expert’s opinion.68 The opposing party, however, should not have to disclose any theory advanced by his expert.69

In an earlier decision of the Alberta Court of Appeal, the Court found that it was always improper to ask a party “on which facts do you rely for paragraph X of your pleading,” since this may require the party to incidently reveal his strategy in the litigation, which is usually subject to a privilege.70 Instead, according to the Alberta Court of Appeal, the proper question is to ask the party for all the facts he knows about a particular issue in the lawsuit. In light of the latitude inherent in SokeFarm Equipment, supra, it is questionable whether this is also the appropriate approach in Saskatchewan.

You may also ask the opposing party incriminating questions at the discovery if they are relevant to the issues in the action. Where this is the case, the opposing party will receive the protection of the Canada Evidence Act71 or The Saskatchewan Evidence Act,72 which prevents the Crown from using his answers in a criminal proceeding against him.

You cannot, however, ask the opposing party questions that are unreasonable, vexatious, prolix, unnecessary or scandalous. As Justice Middleton of the Ontario Court noted, discovery is “not to be made an instrument of torture.”73

67 Saskatchewan Trust Company (Liquidators of) v. Coopers & Lybrand, [2001] S.J. No. 56 (Sask. Q.B.). 68 Ibid. 69 International Minerals & Chemicals Corporation (Canada) Ltd. v. Commonwealth Insurance Company, [1990] S.J. No. 534 (Sask. Q.B.). 70 Can-Air Services Ltd. v. British Aviation Insurance Company Ltd. (1989), 91 A.R. 258 (Alta. C.A.). 71 R.S.C. 1985 c. C-5. 72 R.S.S. 1978 c. S-19. 73 Graydon v. Graydon (1921), 51 O.L.R. 301 (Ont. S.C.).



In the case of an examination for discovery of a non-party, the scope of the examination will also be determined by the test of broad relevancy – unless the court imposes some other limits on the non-party’s examination. Under Rule 222A, the court may impose limits on the examination of a non-party, if these limits would be “just” in the circumstances. The onus will be on the person advocating for an examination with limits to provide the justification for the same.74

Objections to Your Questions If counsel for the opposing party objects to any of your questions, have him clearly state the grounds for the objection on the record. After the transcript of the examination becomes available and it appears that opposing counsel’s objection was improper, you may apply to the court for an order directing the party to re-attend an examination at his own expense and to answer the question refused (Rule 232).

Examining an Officer of a Corporation When an officer of a corporation is being examined for discovery, he or she must impart the information he or she received from other officers, employees or agents about the matters in issue – even though he or she does not believe the information to be accurate. In these circumstances, the officer should qualify his or her answers to indicate that the corporation does not accept the information as being accurate.75 Only answers which the officer accepts as a fact can be used as evidence against the corporation. Accordingly, when you are examining an officer, you should be sure to establish whether or not the corporation accepts the information as being correct.

Concluding Your Examination You should close your examination of the opposing party only if the opposing party did not give any undertakings, object to any of your questions or introduce additional documents. Otherwise, it is appropriate to adjourn the examination. The examination can be resumed later (if necessary) to deal with further questions arising from the answers to undertakings or from new documents.

74 C.D.F. (Litigation Guardian of), supra note 11. 75 Giddings v. Canadian Northern Railway Company, 1919 CarswellSask 128 (Sask. C.A.).



Note that, before concluding your examination, it is acceptable for you to request an undertaking from the person being examined to disclose any further information that the person may acquire after his examination for discovery is concluded.76

The Examination of Your Client When your client is being examined by opposing counsel, you should refrain from interrupting the examination unless absolutely necessary. It is also inappropriate for you to answer the questions put to your client.

Objecting to Questions Bearing in mind that the scope for the examination is wide, it would still be proper to object to a question from opposing counsel that is irrelevant, hypothetical, directed toward a person’s credibility (unless that is relevant to help determine the issues), a question of law, privileged and requires your client to state his opinion (with some exceptions). Ensure that the basis for your objection is stated on the record, but avoid arguments with opposing counsel on the merits of your objection. Opposing counsel is free to test the validity of your objection under Rule 232.

Re-Examining Your Client: Rule 230 After your client has been examined by opposing counsel, you may ask your client explanatory questions about the answers he gave during his examination. In most cases, explanatory questions should not be necessary, but if they are, you must ask these questions immediately after opposing counsel completes his examination (Rule 230). Your client will then be subject to re-examination by opposing counsel on his explanatory answers.

76 Cominco Ltd. v. Phillips Cables Ltd. (1986), 44 Sask. R. 93 (Sask. Q.B.), reversed on other grounds, supra note 1



You should only ask your client explanatory questions when the answers he or she gave during the examination require clarification on the record, since their purpose is to prevent an injustice or a distortion of admissions on discovery.77 You should not use this Rule as an instrument to introduce your client’s own evidence.78

Concluding Your Client’s Examination When your client is being examined, you should insist that the examination be closed unless there are outstanding undertakings or objections. If the examination must be adjourned, make it clear on the record that the adjournment is restricted to the provision of the undertakings and any questions that arise therefrom.

Who Can Be Present at the Examinations for Discovery Generally, any party to an action has the inherent right to be present at any proceeding taken in the action, including examinations for discovery. In some circumstances, however, the court may order that a party be excluded from attending another party’s examination for discovery. This would be appropriate only where the party’s presence at the examination for discovery would prejudice another party. For example, a co-party may be excluded from its co-party’s examination where the opposing party (the party seeking exclusion) can establish the following:

1. the examinations of the co-parties will likely cover the same ground;

2. the co-parties’ credibility will be a factor; 3. the co-parties have interests in common; 4. there is no possibility that the excluded party will be

prejudiced; and 5. overall, the co-party’s presence would seem to “unduly

restrict the conduct of a meaningful examination.”79

77 W.H. Sherlock Ltd. v. Burnett, [1938] 1 W.W.R. 141. See also: Fink v. Bourasssa, [1974] 2 W.W.R. 84 (Sask. Q.B.). 78 Sask. Co-op Wheat Producers v. Luciuk, [1931] 2 W.W.R. 51. 79 Simpson v. Chiropractors’ Assn. of Saskatchewan, [1997] S.J. No. 340 (Sask. Q.B.); and Milgaard v. Saskatchewan; [1995] S.J. No. 529 (Sask. Q.B.), aff’d [1996] S.J. No. 54 (Sask. C.A.).



Apart from the parties and their counsel, no other person has a right to be present at an examination for discovery. This is a private proceeding. In some circumstances, however, the court may allow a “resource person” to attend an examination for discovery provided this would not result in any prejudice to the other party. For instance, the courts will sometimes permit a resource person to attend and assist counsel in an examination where it will involve matters so complex or technical that counsel could not reasonably conduct the examination without the special skill of the resource person.80 A resource person may also be permitted to attend to assist the corporate officer being examined if this would create a more expeditious examination and would avoid unnecessary and numerous undertakings.81

The court may also permit the attendance of some other person who could generally assist with the examination in special circumstances, such as where the party being examined requires assistance because of age or illness. Again, this would not be permitted if it resulted in some prejudice to the other party.82

Absent a court order, a non-party is not permitted to attend an examination for discovery unless, of course, the parties consent to the non-party’s presence beforehand.

Undertakings An undertaking to provide information given by a party at an examination for discovery is usually answered in the form of a letter. The letter should refer to the specific undertaking followed with the party’s response. A party is then entitled to examine the other party on his or her undertaking responses or on his or her failure to provide a complete response.

If a party fails to comply with the undertakings given at the examination for discovery, the court can make an order compelling the same. This order may provide for a specific date on which the party is to complete his undertakings, failing which the party’s claim will be dismissed or his defence struck under Rule 231.

80 Ormiston v. Matrix Financial Corp., 2002 CarswellSask 407 (Sask. Q.B.) and cases cited therein. 81 Brown v. Normanview Daycare Corp., [1986] S.J. No. 247 (Sask. Q.B.); and Korol v. Saskatchewan Federation of Police Officers Inc., [1998] S.J. No. 40 (Sask. Q.B.) 82 Ormiston, supra 79.



A party that is unable to comply with his or her undertakings may be liable to have his or her claim dismissed or his or her defence struck under Rule 231. This was the case where the plaintiff in an action died before he was able to complete his undertakings given at his examination for discovery.83

Use of Examination for Discovery: Rule 239

Use of the Examination in the Action In the trial of an action or an issue, any party may apply to the court to read any part of the transcript from the examination for discovery of the opposing party (including the examination of a properly designated corporate officer) as evidence without putting in the whole of the transcript (Rule 239). The opposing party may, however, ask the court to look at other parts of the transcript from the examination that explain the part of the transcript read in as evidence. If the court views the explanatory parts of the transcript as “so connected” with the parts read in as evidence, then the court may direct that the explanatory parts be put in, but not as evidence (Rule 239). Where the portion read into evidence constitutes ad admission, there are two essential questions. First, does what was read into evidence misstate what was actually admitted, or express it in an incomplete manner? Second, does the part designated by the admitting party modify, clarify or contradict what was admitted?84

Note that the examination for discovery of a party who is unable to testify at trial because of death, illness, or infirmity may also be read in as evidence with leave of the court (Rule 239A).

Because the parts of the opposing party’s transcript or admissions that you choose to read-in become your client’s evidence at trial, be sure to put in only those parts that are not damaging or contradicting to your own case. As recognized by the Saskatchewan Court of Appeal, material from the examination

83 Nelson v. Saskatchewan Crop Insurance Corp., [1993] S.J. No. 332 (Sask. Q.B.). 84 Saskpower International Inc. v. Uma/B&V Ltd,. 2007 SKQB 364 (CanLll), CarswellSask606 (Sask Q.B.)



that runs contrary to your client’s case and which you choose to read-in at trial, may bind your client.85 Extreme care should therefore be taken when reviewing the transcript for the purpose of determining what parts you will read-in as evidence.

The examination for discovery of one defendant cannot be used as evidence against his co-defendant unless their relationship is such that one defendant is bound by the admissions of the other.86 For example, a corporate defendant will be bound by the admissions of the defendant employee in an action where vicarious liability is alleged against the corporate defendant.

In addition to the use of the examination under Rule 239, Rule 247 also permits a party to apply to the court for an order or judgment on the basis of admissions of the opposing party made during the examination for discovery. However, the court will only make an order or judgment under Rule 247 in the clearest of cases, such as, for example, if the plaintiff made a clear admission at discovery, on the face of which, it would be impossible for the plaintiff to succeed in its claim against the defendant. On the other hand, if it is at least arguable that the defendant could be held liable at trial, then the plaintiff’s claim will not be dismissed under Rule 247.87

Use of the Examination for Other Purposes Under the common law, the parties and their counsel are bound by an implied undertaking not to use the answers given at an examination for discovery for a collateral or ulterior purpose.88

Two main reasons for the undertaking are to preserve the privacy of the party being examined and to encourage the party being examined to be open and frank in answering questions at discovery. Inherent in both of these reasons is the desire to protect a party from incriminating himself.89 In light of the common law rule, it is unnecessary to apply for an express undertaking to protect the part being examined.90

85 Collins v. Belgian Dry Cleaners, Dyers & Furriers Ltd., [1952] 1 D.L.R. 712 (Sask. C.A.); See also: O’Sullivan v. Turk, [1947] 4 D.L.R. 883 (Man. K.B.), affirmed [1947] 2 D.L.R. 883 (Man. C.A.). 86 Nowsco Well Service Ltd v. Canadian Propane Gas and Oil Ltd. (1981), 122 D.L.R. (3d) 228. 87 Hay v. Crick, [2000] S.J. No. 295 (Sask. Q.B.). 88 Laxton Holding Inc. v. Non-Marine Underwriters, [1987] S.J. No. 131 (Sask. C.A.); and Wasylyshen v. Canadian Broadcasting Corp., [1989] S.J. No. 87 (Sask. C.A.). 89 Sterling v. Sullivan, [2003] S.J. No. 531(Sask. Q.B.). 90 Sullivan & Associates Inc. v. Tilson, 2007 SKQB 115 (CanLll); [2007] 32 C.B.R. (5th) 273; (2007) 296 Sask. R. 54.



The implied undertaking rule is consistent with Rule 237(4), which provides that the transcript will not be available to anyone but counsel unless a court orders otherwise. A court can therefore make the transcript available under Rule 237(4). A court also has jurisdiction to waive the implied undertaking rule in the appropriate circumstances.91

Examinations Under the Simplified Procedure

Examinations for discovery are among the most costly pre-trial procedures; therefore, in an action brought pursuant to the simplified procedure, Rule 485 prohibits examinations for discovery without a court order. Exchanging affidavits in advance of trial achieves some of the purposes of examination for discovery.92 Saskatchewan courts have not enunciated the conditions under which examinations for discovery may take place under the simplified rules, although judicial treatment of the issue in general suggests courts will likely require strong evidence of prejudice or other injustice before permitting examinations for discovery by court order.93

It is not uncommon for actions commenced under the general procedure to be amended and transferred to the simplified procedure. In such circumstances, relevant portions of examinations for discovery completed prior to the amendment may be read into evidence as part of the trial.94 Similarly, the courts may require the parties to comply with any undertakings given at the examination for discovery.95

91 Sterling, supra note 88. 92 Perepelkin v. Urbanski, 2000 SKQB 206, [2000] TWL QB00202. 93 See Piche v. Big C First Nation, 2004 SKQB 179 (CanlII), (2004), 251 Sask R. 72 wherein it was held that to allow examinations for discovery without some weighty reason would defeat the whole purpose of the simplified procedure. See also Hlewka v. Mann Motor Products Ltd. 2004 SKCA 163 (Sask C.A.) refusing leave to appeal from (2004), SKQB 685. 94 Heard v. Saskatoon Prairieland Park Corp., 2004 SKQB 28 (CanLII) (2004), 245 Sask R. 153. at para. 11. See also Valentino Gennarini SRL v. Andromeda Navigation Inc., 2003 FCT 567 (CanLII); (2003), 232 F.T.R. 256 (Federal Court) where action converted from ordinary to simplified procedure and simplified rules did not negate application of read-ins from general rules; thus, general rule regarding read-ins applied mutatis mutandis to the simplified procedure to allow read-ins from an oral discovery conducted under the general rules. 95 See Bryant v. Century Sales & Services Ltd. (2000), 196 Sask R. 319, 11 C.P.C. (5th) 325, 2000 CarswellSask 570, 2000 SKQB 391, Gunn J. (Sask Q.B.) and Piche v. Big C First Nation,supra note 92, wherein Ryan-Froslie J. held it would be unfair not to require plaintiff to comply with undertakings.


Transit Trailer Leasing Ltd. v. Robinson (2004), [2004] O.J. No. 1821, 30 C.C.L.T. (3d) 227, 2004 CarswellOnt 1733, Cusinato J. (Ont. S.C.J) parties agreed to opt out of simplified rules for purposes of conducting examinations for discovery, then returned to simplified procedure. Held: any examinations conducted, whether on consent while defendants were unrepresented or with counsel of record, were excluded.

Alcox v. Woolley (1997), 34 O.T.C. 204, [1997] O.J. No. 2821, 14 C.P.C. (4th) 234, 1997 CarswellOnt 3122, Quinn J. (Ont. Gen. Div.) One of the consequences of the simplified procedure is that examinations for discovery are prohibited. The rule doesn’t fully recognize that prejudice might be occasioned by opting into its provisions (due to half completed discoveries). Hence, completed exams were rescinded for the purposes of this proceeding. Transcript sealed.
