The examination for discovery is a formal process, yet takes place rather informally. Formal in the sense that the nominee will testify under oath (unless the Court directs otherwise or the parties agree otherwise, which rarely happens) and the examination will be recorded. Informally, in the sense that, if need be, a party can stop the examination to take a break or to discuss a matter “off-record”.
Questions that the appellant can ask the Crown’s nominee generally revolve around his educational background and work experience (warm up questions), the circumstances surrounding the audit and the basis for the assumptions of fact made in the reply.
It is important when asking questions to ensure that the answers provided are responsive. A party should not accept or settle for half-answers or elusive answers. Further, if the nominee’s answer leads in a certain direction or opens a new door, the examiner can ask follow-up questions to investigate further.
Unless the parties agree otherwise, or the Court directs otherwise, the person to be examined must bring to the examination and produce for inspection all the documents listed in that party’s list of documents.
If a person is nominated to answer questions on behalf of a corporation or organization at the examination for discovery, that person must “make all reasonable inquiries regarding matters in issue from all of the party’s officers, servants, agents and employees, past or present, either within or outside Canada.” If that person is not prepared, counsel for the Crown has the right to adjourn the examination and ask that the person become better informed. However, the fact that the person cannot answer some questions does not mean that he was not prepared.
What if the nominee doesn’t know the answer to a question? If the nominee doesn’t know the answer to a question, but accepts that the question asked is a proper question, he can “undertake” to provide the answer later on, in writing.
What if a party is not sure whether the question is proper? If the party is not sure whether it should answer the question, it should take the question “under advisement.” Even seasoned lawyers take questions under advisement. Better be safe than sorry.
What if a party objects to a question? If a party objects to a question, that party must state why. In other words, a party cannot refuse to answer without providing any explanation. Note however that there are implications for refusing to answer a question at the examination for discovery. If a party refused to answer a proper question or to answer a question on the ground of privilege and did not provide an answer in writing within 10 days from the date the appeal is set down for hearing, the party will not be able to introduce at the hearing the information refused on discovery, except with leave of the judge.
It may happen that the examiner tries to put pressure on the nominee. This can come out in different ways. For example, opposing counsel may try to force an answer on the nominee, raise his voice or make derogatory comments. This should not be tolerated.
Code of Conduct
As discussed earlier, the parties are expected to make the examination for discovery work by being reasonable and respectful. A party can adjourn the examination and ask the Court to intervene where:
(a) the right to examine is being abused by an excess of improper questions or interfered with by an excess of improper interruptions or objections,
(b) the examination is being conducted in bad faith, or in an unreasonable manner so as to annoy, embarrass or oppress the person being examined,
(c) many of the answers to the questions are evasive, unresponsive or unduly lengthy, or
(d) there has been a neglect or improper refusal to produce a relevant document on the examination.
Last updated: October 4, 2015