The examination for discovery is a formal process, yet takes place rather informally. Formal in the sense that the nominee will testify under oath and the examination will be recorded. Informal 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 you 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. You should not accept or settle for half-answers or elusive answers.
Unless the parties agree otherwise, or the Court directs otherwise, the nominee 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.
Last updated: October 4, 2018