DISCOVERY AND INSPECTION OF DOCUMENTS
Document defined
211 In this Part, “document” includes information recorded or stored by means of any device and includes an audio recording, video recording, computer disc, film, photograph, chart, graph, map, plan, survey, book of account or machine readable information. R. 211, Gaz. Oct. 25/91. New.
Statement on discovery
212(1) Parties to an action shall, within ten days after a statement of defence has been filed, and without notice, serve on each opposite party a statement as to the documents which are or have been in his possession or power relating to any matter in question in the action.
Contents of statement
(2) The statement mentioned in Subrule (1) shall be made in Form 15 and shall be signed by the solicitor of the party making discovery or by the party himself if he sues or defends in person and the statement shall clearly state:
(a) the documents in the possession, custody or control of such party which he is ready and willing to produce but not including the pleadings and proceedings in the action;
(b) the documents which have been, but are not, at the time of making the statement, in the possession, custody or control of such party, the nature of such documents, and when they were last in his possession, custody or control, and where they are likely to be found;
(c) the documents which are in the possession, custody or control of such party and which he objects to produce, the general nature of such documents (which shall be identified with reasonable certainty) and the specific grounds upon which he objects to produce the same.
(3) If any such party has no documents to disclose or which should be disclosed, the said statement shall so state.
Service of statement
(4) A statement as to documents shall have endorsed thereon a notice stating the time when, (which shall not be later than ten days from the date of serving such statement), and the place where (which, unless otherwise ordered, shall be the address for service of the party making the statement), such documents, or such as he does not object to produce, may be inspected:
provided that bank books or other books of account, or books in constant use for the purpose of any trade or business, may be produced at their usual place of custody. (5) A statement as to documents shall not be filed with the court unless otherwise ordered. R.212, Am. Gaz. Dec. 11/98.
Notice to produce
213(1) Every party to a cause or matter shall be entitled at any time, by notice in writing, to give notice to any other party in whose pleadings, affidavits, or statement as to documents reference is made to any document, to produce such document for the inspection of the party giving such notice or of his solicitor and to permit him or them to take copies thereof. Such notice shall be in Form 16.
Notice to inspect
(2) The party to whom notice under subrule (1) to produce documents is given shall, within two days after service of that notice, deliver to the party giving the notice a Notice to Inspect Documents in Form 17 stating a time, within three days from the delivery thereof, at which the documents or any of them that he or she does not object to produce may be inspected at his or her address for service.
(3) Notwithstanding subrule (2), bankers’ books or other books of account or books in constant use for the purpose of any trade or business may be produced at their usual place of custody.
(4) On assessment of costs no allowance is to be made for any notice to produce or for inspection unless it is shown to the assessment officer that there was good and sufficient reason for giving that notice or making that inspection. R. 213. Amend. Gaz. Dec. 13, 2002
Production for inspection, Copies
214 Where notice to inspect documents has been given, the party giving such notice shall at the time and place appointed produce for the inspection of the party requiring same all such documents as are in his custody, possession or control and which he does not object to produce and shall permit such party to inspect the same and to make copies thereof, or shall, upon payment of the proper fees therefor, deliver to such party copies of all such documents as he may require. R. 214.
Default in discovery or production
215(1) If any party:
(a) neglects, refuses or objects to make discovery of documents as required by Rule 212; or
(b) has filed and served a statement pursuant to Rule 212 which statement is not satisfactory to a party entitled to be served with same; or
(c) shall in such statement so filed and served have made a claim to privilege in respect of documents referred to therein; or
(d) having been served with a notice under Rule 213 shall neglect or refuse to produce any document mentioned therein; or
(e) neglects to give notice to inspect or having given such notice neglects or refuses to produce such documents for inspection or to permit the solicitor for the other party to make copies thereof or to furnish such solicitor with copies thereof upon payment or tender of the proper fees in connection therewith; or
(f) offers production at a place elsewhere than the address for service except as otherwise provided;
then the party so desiring production may apply to the court for an order requiring the other party to make production of documents or for further or better production or for inspection or determining whether documents in respect of which privilege is claimed are in fact privileged and upon such application the court may make an order for production or inspection in such manner as may be just.
Privilege
(2) If upon such application any privilege is claimed for any document the court may inspect such document for the purpose of deciding as to the validity of the claim for privilege and to consider all relevant evidence which may be adduced tending to establish or destroy such claim for privilege.
Cross-examination on statement
(3) Upon any application under this rule the court may permit cross-examination under oath of a party upon the original or any subsequent statement given pursuant to Rule 212. R. 215.
Verified copies
216 Where inspection of any business books is applied for, the court may, instead of ordering inspection of the original books, order a copy of any entries therein to be furnished and proved by the affidavit of some person who has verified the copy by comparison with the original entries, and such affidavit shall state whether or not there are in the original book any and what erasures, interlineations, or alterations:
provided that, notwithstanding that such copy has been supplied, the court may order inspection of the book from which the copy was made. R. 216.
Non-compliance with notice or order for discovery or inspection
217(1) If any party neglects or refuses to make discovery as required by Rule 212 or to produce for inspection any document of which notice to produce for inspection has been given, or to comply with any order for production or inspection, under Rule 215, he shall be liable, if a plaintiff, to have his action dismissed for want of prosecution, and if a defendant, to have his defence, if any, struck out, and be placed in the same position as if he had not defended.
(2) If any party fails to comply with an order for discovery or inspection of documents, he shall also be liable to committal. R. 217.
Use of undisclosed documents as evidence
218 After any party has made discovery of documents or having been required to make discovery has neglected or refused so to do, he shall not afterwards be at liberty to put any document of which he has not made discovery in evidence on his behalf in any such cause or matter unless he shall satisfy the court that he had some reasonable cause for not making discovery thereof; in which case the court may allow the same to be put in evidence on such terms as to costs or otherwise as the court shall think fit:
Newly discovered documents to be disclosed
provided that if any party who has made discovery of documents as by these rules provided, shall discover or come into possession of any document not previously disclosed and which is relevant to the matters in question in the action or proceeding he shall give notice thereof to the opposite party not later than 10 days before the trial or hearing, and forthwith upon request shall supply such opposite party with a copy thereof, in which
Discovery no admission of relevancy
219 If any party makes discovery of any document under any of the provisions herein contained he shall not thereby be deemed to admit the relevancy or admissibility of such document. R. 219.
Service of order
220 Service of an order for discovery or inspection, made against any party on his solicitor, shall be sufficient service to found an application for committal for disobedience to the order. But the party against whom the application for committal is made may show, in answer to the application, that he has had no notice or knowledge of the order. R. 220.
Solicitor neglecting to inform client of order
221 A solicitor, upon whom an order against any party for discovery or inspection is served under the last preceding rule, who neglects, without reasonable excuse, to give notice thereof to his client, shall be liable to committal. R. 221.
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PART TWENTY-ONE
EXAMINATION FOR DISCOVERY
Examination of parties for discovery
222 Subject to Part Forty-Eight, any party to an action or issue may, without order, be orally examined for discovery before the trial touching the matters in issue in the action by any party adverse in interest, and may be compelled to attend and testify in the same manner, upon the same terms with respect to conduct money and otherwise, and subject to the same rules of examination as a witness except as hereinafter provided. R. 222. Am. Gaz. May 15/87.
Discovery of non-parties with leave
222A(1) The court may grant leave, on such terms respecting costs and other matters as are just, to examine for discovery any person who may have information relevant to a material issue in the action, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation.
Test for granting leave
(2) An order under Subrule (1) shall not be made unless the court is satisfied that: (a) the applicant has been unable to obtain the information from other persons whom the applicant is entitled to examine for discovery, or from the person he or she seeks to examine;
(b) it would be unfair to require the applicant to proceed to trial without having the opportunity of examining the person; and
(c) the examination will not:
(i) unduly delay the commencement of the trial of the action; (ii) entail unreasonable expense for other parties; or
Costs by party examining
(3) A party who examines a person orally under this rule shall serve every party who attended or was represented on the examination with the transcript free of charge, unless the court orders otherwise.
(4) The examining party is not entitled to recover the costs of the examination from another party.
Limitation on use at trial
(5) The evidence of a person examined under this rule may not be read into evidence at trial under Rule 239. R. 222A. Gaz. May 15/87. New. Amend. Gaz. Dec. 13, 2002.
Oath
222B(1) The person being examined shall be sworn before he is examined, and the oath shall be administered by a judge, local registrar, official court reporter or special court reporter.
(2) Where the person being examined is sworn before a court reporter, the court reporter shall receive the completed memorandum of Examination for Discovery and shall collect the proper fees and shall:
(a) in the case of an official court reporter, remit them promptly to the local registrar; and
(b) in the case of a special court reporter remit them within four days to the local registrar, together with such report as may be required by the local registrar. R. 222B. Gaz. Jan. 29/82. Am. Gaz. May 15/87.
Examination of one who is or has been officer or servant of corporation
223(1) In the case of a corporation, anyone who is or has been an officer or servant of such corporation may, without order, be orally examined for discovery before the trial by any party adverse in interest to the corporation, and may be compelled to attend and testify in the same manner as a witness.
Use of examination
(2) The examination of one who is a servant, or who has been an officer or servant of a corporation shall not be used in evidence, and the examination of one who is an officer of the corporation shall only be used as evidence against the corporation as hereinafter provided.
Apply to court to designate proper person
(3) Any party desiring to examine an officer of a corporation for the purpose of using such examination as evidence may apply to the court to designate the proper person to be so examined, and the court shall, after inquiry, designate the proper person to be so examined and the examination of the person so designated may be used as evidence against the corporation saving all just exceptions. Where the parties agree upon the proper person to be examined no such designation by the court is required.
After examination not at liberty to examine further without order
(4) After examining anyone who is or has been an officer or servant of a corporation a party shall not be at liberty to examine any other person who is or has been an officer or servant of the corporation without an order of the court. R. 223.
Assignor of chose in action examinable for discovery
225 Where an action is brought by an assignee of a chose in action the assignor may, without order, be examined for discovery. R. 225.
When examination may take place
226 The examination on the part of a plaintiff may take place at any time after the statement of defence of the party to be examined has been delivered, or after the time for delivering the same has expired, or after default of appearance has been noted against the party to be examined; and the examination on the part of a defendant may take place at any time after such defendant has delivered his statement of defence and the examination of a party to any issue at any time after the issue has been filed. R. 226.
Examining by appointment
227 Where a party is entitled to examine a person who resides in Saskatchewan he may procure an appointment from the local registrar of the judicial centre nearest the place where the person to be examined so resides for examination before him, but the court may order the examination to be held before any other person and at any place, or such examination may be held by consent before any other local registrar, process issuer, official court reporter or special court reporter. R. 227.
Service of appointment or order, Conduct money
228(1) A party liable to examination, or one who is an officer or servant of a corporation, and so liable, who resides in Saskatchewan, shall attend for examination upon service of a copy of the appointment and of the order, if any, for such examination upon his solicitor, if any, or upon the solicitor of the corporation, as the case may be, not less than five days where the party to be examined resides at a judicial centre and in all other cases 10 days before the day appointed for the examination, and proper conduct money shall, in such case, be paid or tendered to the solicitor.
Duty of solicitor
(2) The solicitor shall forthwith communicate the appointment to the person required to attend, and shall not apply the money to any debt due to the solicitor, or any other person, or pay the same otherwise than to such person for his conduct money, and the same shall not be liable to be attached.
Party to be examined may be served with subpoena
(3) Notwithstanding anything in this rule the person to be examined may be served personally with a subpoena requiring his attendance at the time and place appointed for the examination, in which case the proper conduct money shall be paid to him at the time of such service, and a copy of the appointment shall be served upon his solicitor, if any, or on the solicitor of the corporation of which the person to be examined is or has been an officer or servant, as the case may be, at least 48 hours before the time fixed for the examination. R. 228.
Examination outside the jurisdiction
229(1) A party liable to be examined for discovery, or one who is an officer or servant of a corporation and so liable, who is not in Saskatchewan, may, by order of the court be examined before such person and at such place as the court may order.
(2) A copy of the appointment of the person before whom the examination is to take place, and a copy of the order, shall be served upon the person to be examined, and upon payment to him of the proper conduct money he shall attend and submit to examination. (3) A copy of the appointment shall be served upon the agent of the solicitor of the party to be examined, or of the corporation, as the case may be, at least 48 hours before the time fixed for the examination. If no agent has been appointed service of the appointment shall be dispensed with. R. 229.
Explanatory examination and re-examination
230 Any person examined for discovery may be further examined on his own behalf, or on behalf of the corporation, whose officer or servant he is or has been, in relation to any matter respecting which he has been so examined, and may then be re-examined, and such explanatory examination and re-examination shall be proceeded with immediately after his examination by the other party. R. 230.
Refusal or neglect to answer; penalties
231 Anyone refusing or neglecting to attend at the time and place appointed for his examination or refusing to be sworn or to answer any lawful question put to him by any