Tax Court of Canada Rules (General Procedure) (SOR/90-688a)

Notice of Time and Place

104 The person to be examined shall be given not less than ten days notice of the time and place of the examination, unless the Court directs otherwise.

Production of Documents on Examination

• 105 (1) Unless the parties otherwise agree, or the Court otherwise directs, the person to be examined shall bring to the examination and produce for inspection,

  • (a) on an examination for discovery, all documents as required by subsection 85(3), and

  • (b) on all other examinations, such documents as may be required by subsection 105(3).

• (2) Where a person admits, on an examination, that he or she has possession or control of or power over any other document that relates to a matter in issue in the proceeding and that is not privileged, the person shall produce it for inspection by the examining party forthwith, if the person has the document at the examination, and if not, within ten days thereafter, unless the Court directs otherwise.

• (3) The notice to attend for examination or subpoena may require the person to be examined to bring to the examination and produce for inspection,

  • (a) all documents and things relevant to any matter in issue in the proceeding that are in that person’s possession, control or power and that are not privileged, or

  • (b) such documents or things described in paragraph (a) as are specified in the notice or subpoena,

  unless the Court directs otherwise.

Re-Examination

• 106 (1) A person being examined for discovery may be re-examined by his or her own counsel.

• (2) A person being cross-examined on his or her affidavit may be re-examined by his or her own counsel.

• (3) The re-examination shall take place immediately after the examination or cross-examination and shall not take the form of a cross-examination.

Objections and Rulings

• 107 (1) Where a question is objected to, the objector shall state briefly the reason for the objection, and the question and the brief statement shall be recorded.

• (2) A question that is objected to may be answered with the objector’s consent, and where the question is answered, a ruling shall be obtained from the Court before the evidence is used at a hearing.

• (3) A ruling on the propriety of a question that is objected to and not answered may be obtained on motion to the Court.

Improper Conduct of Examination

• 108 (1) An examination may be adjourned by the person being examined or by a party present or represented at the examination, for the purpose of moving for directions with respect to the continuation of the examination or for an order terminating the examination or limiting its scope, 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.

• (2) Where the Court finds that,

  • (a) a person’s improper conduct necessitated a motion under subsection (1), or

  • (b) a person improperly adjourned an examination under subsection (1),

  the Court may direct the person to pay personally and forthwith the costs of the motion, any costs thrown away and the costs of any continuation of the examination and the Court may fix the costs and give such other direction as is just.

Videotaping or other Recording of Examination

• 109 (1) On consent of the parties or by direction of the Court, an examination may be recorded by videotape or other similar means and the tape or other recording may be filed for the use of the Court along with the transcript.

• (2) Section 111 applies, with necessary modifications, to a tape or other recording made under subsection (1).

Sanctions for Default or Misconduct by Person to be Examined

110 Where a person fails to attend at the time and place fixed for an examination in the notice to attend or subpoena, or at the time and place agreed on by the parties, or refuses to take an oath or make an affirmation, to answer any proper question, to produce a document or thing that that person is required to produce or to comply with a direction under section 108, the Court may,

• (a) where an objection to a question is held to be improper, direct or permit the person being examined to reattend at that person’s own expense and answer the question, in which case the person shall also answer any proper questions arising from the answer,

• (b) where the person is a party or, on an examination for discovery, a person examined on behalf of or in place of a party, dismiss the appeal or allow the appeal as the case may be,

• (c) strike out all or part of the person’s evidence, including any affidavit made by the person, and

• (d) direct any party or any other person to pay personally and forthwith costs of the motion, any costs thrown away and the costs of any continuation of the examination.

Filing of Transcript

• 111 (1) It is the responsibility of a party who intends to refer to evidence given on an examination to have a copy of the transcript of the examination available for filing with the Court.

• (2) A copy of a transcript for the use of the Court at hearing shall not be filed until a party refers to it at hearing, and the presiding judge may read only the portions to which a party refers.

Examination Where Person Outside Canada

• 112 (1) Where the person to be examined resides outside of Canada the Court may determine,

  • (a) whether the examination is to take place in or outside of Canada,

  • (b) the time and place of the examination,

  • (c) the minimum notice period,

  • (d) the amount of witness fees and expenses to be paid to the person to be examined, and

  • (e) any other matter respecting the holding of the examination.

• (2) Where the person is to be examined outside of Canada, the direction under subsection (1) shall, if the moving party requests it, provide for the issuing of,

  • (a) a commission (Form 112(2)(a)) authorizing the taking of evidence before a named commissioner, and

  • (b) a letter of request (Form 112(2)(b) — REQUEST) directed to the judicial authorities of the jurisdiction in which the person is to be found, requesting the issuing of such process as is necessary to compel the person to attend and be examined before the commissioner, and the direction shall be in Form 112(2)(b)A — DIRECTION.

• (3) The commission and letter of request shall be prepared and issued by the Registrar.

• (4) Where the person to be examined resides outside of Canada and is not a party or a person to be examined on behalf of or in place of a party, the examining party shall pay or tender to the person to be examined the amount of witness fees and expenses fixed under subsection (1).

• (5) A commissioner shall, to the extent that it is possible to do so, conduct the examination in the form of oral questions and answers in accordance with these rules, the laws of evidence of Canada and the terms of the commission, unless some other form of examination is required by the judgment or the law of the place where the examination is conducted.

• (6) As soon as the transcript of the examination is prepared the commissioner shall,

  • (a) return the commission, together with the original transcript and exhibits, to the Registrar who issued it,

  • (b) keep a copy of the transcript and, where practicable, the exhibits, and

  • (c) notify the parties who appeared at the examination that the transcript is complete and has been returned to the Registrar who issued the commission.

• (7) The Registrar shall send the transcript to the counsel for the examining party and the counsel shall, if requested, forthwith serve every other party with the transcript free of charge.

Procedure on Examination for Discovery by Written Questions

Questions

113 An examination for discovery by written questions and answers shall be conducted by serving a list of the questions to be answered on the person to be examined. (Form 113)

Answers

114 Written questions shall be answered by the affidavit of the person being examined, served on the examining party within thirty days after service of the list of questions. (Form 114)

Objections

115 An objection to answering a written question shall be made in the affidavit of the person being examined, with a brief statement of the reason for the objection.

Failure to Answer

• 116 (1) Where the examining party is not satisfied with an answer or where an answer suggests a new line of questioning, the examining party may, within fifteen days after receiving the answer, serve a further list of written questions which shall be answered within thirty days after service.

• (2) Where the person being examined refuses or fails to answer a proper question or where the answer to a question is insufficient, the Court may direct the person to answer or give a further answer to the question or to answer any other question either by affidavit or on oral examination.

• (3) Where the Court is satisfied, on reading all the answers to the written questions, that some or all of them are evasive, unresponsive or otherwise unsatisfactory, the Court may direct the person examined to submit to oral examination on such terms respecting costs and other matters as are just.

• (4) Where a person refuses or fails to answer a proper question on a written examination or to produce a document which that person is required to produce, the Court may, in addition to imposing the sanctions provided in subsections (2) and (3),

  • (a) if the person is a party or a person examined on behalf of or in place of a party, dismiss the appeal or allow the appeal as the case may be,

  • (b) strike out all or part of the person’s evidence, and

  • (c) give such other direction as is just.

Improper Conduct of Written Examination

117 On motion by the person being examined, or by any party, the Court may terminate the written examination or limit its scope where,

• (a) the right to examine is being abused by an excess of improper questions, or

• (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.

Filing Questions and Answers

118 Section 111 applies, with necessary modifications, to the filing of written questions and answers for the use of the Court.

Taking Evidence Before Hearing

Where Available

• 119 (1) A party who intends to introduce the evidence of a person at a hearing may, with leave of the Court or the consent of the parties, examine the person on oath or affirmation before the hearing for the purpose of having the person’s testimony available to be tendered as evidence at the hearing.

• (2) In exercising its discretion to direct an examination under subsection (1), the Court shall take into account,

  • (a) the convenience of the person whom the party seeks to examine,

  • (b) the possibility that the person will be unavailable to testify at the hearing by reason of death, infirmity or sickness,

  • (c) the possibility that the person will be beyond the jurisdiction of the Court at the time of the hearing,

  • (d) the expense of bringing the person to the hearing,

  • (e) whether the witness ought to give evidence in person at the hearing, and

  • (f) any other relevant consideration.

• (3) Before moving for leave to examine an expert witness under subsection (1), the moving party shall serve on all other parties the report of the expert witness referred to in subsection 145(7) unless the Court directs otherwise.

Procedure

• 120 (1) Subject to subsection (2), sections 101 to 112 apply to the examination of a witness under section 119, unless the Court directs otherwise.

• (2) A witness examined under section 119 may be examined, cross-examined and re-examined in the same manner as a witness at a hearing.

Examinations Outside Canada

121 Where a direction is given under section 119 for the examination of a witness outside of Canada, the direction shall, if the moving party requests it, provide for the issuing of a commission and letter of request under section 112 and for the taking of the evidence of the witness and, on consent of the parties, any other witness in the same jurisdiction, and the direction shall be in Form 112(2)(b)A — DIRECTION.

Use at Hearing

• 122 (1) Any party may use at the hearing the transcript and a videotape or other recording of an examination under sections 119 and 121 as the evidence of the witness, unless the Court directs otherwise for any sufficient reason.

• (2) A witness whose evidence has been taken under section 119 or 121 shall not be called to give evidence at the hearing, except with leave of the judge.

• (3) Use of evidence taken under section 119 or 121 is subject to any ruling by the judge respecting its admissibility.

• (4) The transcript and a videotape or other recording may be filed with the Court at the hearing and need not be read or played at the hearing unless a party or the judge requires it.