It's A Small World After All: Obtaining Evidence From Persons Outside Ontario

In this global marketplace, where business across borders has become commonplace, it is to be expected that some parties to a business dispute that is litigated in Ontario, or key witnesses in relation to such dispute, may reside outside Ontario. In some instances, the evidence of such persons residing outside Ontario may be crucial to the case. It is therefore important for Ontario lawyers to know the tools that are available to obtain evidence outside Ontario, and the criteria that apply to each of them.

Rule 34.07 of the Rules of Civil Procedure is the starting point. This Rule applies to pre-trial examinations and the taking of evidence before trial where the person to be examined resides outside Ontario.

Rule 34.07(1) provides as follows:

Where the person to be examined resides outside Ontario, the court may determine,

(a) whether the examination is to take place in or outside Ontario;

(b) the time and place of the examination;

(c) the minimum notice period;

(d) the person before whom the examination is to be conducted;

(e) the amount of attendance money to be paid to the person to be examined; and

(f) any other matter respecting the holding of the examination.

In applying Rule 34.07, important factors to take into consideration include whether the person to be examined is a party or a person under the control of a party (such as an employee, officer or director of a party), and whether the proposed witness is in Canada or outside Canada.

The Person to Be Examined is a Party or a Person Under the Control of a Party

The court may only order that the examination of a non-Ontario resident take place in Ontario if the person is a party to the action or a person under the control of a corporate party, and typically only for the examination for discovery of the party or for the cross-examination on an affidavit proffered by a party.1 If the proposed witness is under the control of a party, the court would make an order against the party, not against the proposed witness, and the order would require the party to produce the witness in Ontario. If the witness fails to appear and answer proper questions, the court can make an appropriate order against the party under Rule 60.12 of the Rules of Civil Procedure for failure to comply with an interlocutory order of the court. The sanction for such a failure can include, for instance, the dismissal of the party's motion.

Even if the proposed witness is a party or a person under the control of a party, it is not a foregone conclusion that the examination will take place in Ontario. The test for determining the location of an examination is what is just and convenient for both parties, based solely on the circumstances in each particular case. There is no prima facie right of either party with respect to the place of examination.2

Rule 34.07(1)(f) (reproduced above) gives a court...