Noncompliance with order for discovery or inspection Penalty Service of order Advocate neglecting to inform client of order 198. If any person fails to comply with any order for discovery or inspection of documents he shall be liable to attachment for contempt of Court. He shall also if a plaintiff be liable to have his action dismissed for want of prosecution and if a defendant to have his defence if any struck out and to be placed in the same position as if he had not defended and the party interrogating may apply to that effect and an order may be made accordingly. C.O.. c. 21, r. 198. 199. Service of an order for discovery or inspection made against any party on his advocate shall be sufficient service to found an application for an attachment for disobedience to the order; but the party against whom the application for an attachment is made may show in answer to the application that he has had no notice or knowledge of the order. c. 21, r. 199. C.O., 200. An advocate 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 attachment. C.O., c. 21. r. 200. ORDER XXI. Examination of parties before trial Person beneficially interested When exam ination may take place EXAMINATION FOR DISCOVERY. 201. Any party to an action whether plaintiff or defendant or in the case of a body corporate any one who is or has been one of the officers of such body corporate may without any special order for the purpose be orally examined before the trial touching the matters in question in any action by any party adverse in point of interest and may be compelled to attend and testify in the same manner upon the same terms and subject to the same rules of examination as any witness except as hereinafter provided. C.O., c. 21. r. 201. 202. A person for whose immediate benefit an action is prosecuted or defended is to be regarded as a party for the purpose of examination. C.O., c. 21, r. 202. 203. 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; and the examination on the part of a defendant may take place any time after such defendant has delivered his statement of defence; and the examination of a party to an issue at any time after the issue has been filed. C.O., c. 21, r. 203. Examining officer 204. Whenever a party is entitled to examine another party Exami he may procure an appointment therefor from the clerk or any deputy clerk or process issuer in the judicial district where the action was commenced for the examination as hereinafter provided of such party before such clerk, deputy clerk or process issuer at whose office such examination is to be held; and the party to be examined (upon being served with a copy of the examination appointment and a subpoena and upon payment of the proper and subpoena fees) shall attend thereon and submit to examination. (2) Such examination shall be held at the office of the clerk, deputy clerk or process issuer nearest to the place where the party to be examined resides. C.O., c. 21, r. 204. Place of Appointment Appointment on advocate 205. The party examining shall serve a copy of the appoint-be served ment upon the advocate of the party to be examined if he has an advocate in the cause at least forty-eight hours before the examination. C.O., c. 21, r. 205. Examination 206. Upon application to the Court or a judge an order may before other be made for the examination of any party liable to be exam- withou ined as aforesaid before any other person or in any other place jurisdiction whether within or without the jurisdiction of the Court than those before mentioned and upon service of a copy of the appointment of a person before whom the examination is to take place and a copy of the order upon the party to be examined and upon payment of the proper fees he is to attend and submit to examination. A copy of the appointment shall be served upon the advocate of the party or his agent at least forty-eight hours before the examination. C.O., c. 21, r. 206. produce books 207. The party or person to be examined shall if so required Notice to by notice produced on the examination all books, papers and and papers documents which he would be bound to produce at the trial under a subpœna duces tecum. C.O., c. 21, r. 207. 208. In the event of any witness on his examination, crossexamination or re-examination producing any book, document, letter, paper or writing and refusing for good cause to be stated in his deposition to part with the original thereof then a copy thereof or extract therefrom certified by the examiner to be a true and correct copy or extract shall be attached to the depositions and form part thereof. C.O., c. 21, r. 208. Certified copies of documents examination behalf, etc. 209. Any party or officer so examined may be further ex- Further amined on his own behalf or on behalf of the body corporate of on party's own which he is or has been an officer in relation to any matter respecting which he has been examined in chief; and when one of several plaintiffs or defendants has been examined any other plaintiff or defendant united in interest may be examined on Explanatory examination Time for Conduct of examination, etc. Production of documents for inspection of examiner Appeal from examiner's order Refusal to attend or answer, etc. Penalty Objections by witness Decisions as to validity his own behalf or on behalf of those united with him in interest to the same extent as the party examined. C.O., c. 21, r. 209. 210. Such explanatory examination shall be proceeded with immediately after the examination in chief and not at any future period except by leave of the Court or a judge and for the purposes of this and the preceding rule when the officer of a body corporate has been so examined as aforesaid on behalf of the body corporate the body corporate shall be deemed to be fully represented by such officer. C.O., c. 21, r. 210. 211. Any party or person examined orally under the preceding rules of this order shall be subject to cross-examination and re-examination; and such examination, cross-examination. and re-examination shall be conducted as nearly as may be in the mode in use on a trial. C.O., c. 21, r. 211. 212. A party to the action who admits upon his examination that he has in his custody or power any deed, paper, writing or document relating to the matters in question in the cause upon the order of the person before whom he is examined shall produce the same for his inspection and for that purpose a reasonable time shall be allowed; but no party shall be obliged to produce any deed, paper, writing or document which is privileged or protected from production. C.O., c. 21, r. 212. 213. Either party may appeal from the order of the examiner and thereupon the examiner shall certify under his hand the question raised and the order made thereon. C.O., c 21, r. 213. 214. Any party or person 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 the examiner or by any party entitled so to do or his counsel, advocate cagent shall be deemed guilty of a contempt of Court and proceedings may be forthwith had by attachment. If a defendant he shall be liable to have his defence if any struck out and be placed in the same position as if he had not defended; and the party examining may apply to the Court or a judge to that effect and an order may be made accordingly. C.O., c. 21, r. 214. 215. If the party or person under examination demurs or objects to any question or questions put to him the question or questions so put and the objection of the witness thereto shall be taken down by the examiner and transmitted by him to the office of the Court where the pleadings are filed to be there filed: and the validity of such objection shall be decided by the Court or a judge; and the costs of and occasioned by such objection shall be in the discretion of the Court or a judge. C.O., c. 21, r. 215. completion of 216. Subject to rules 218, 219 and 220 hereof the depositions Form and taken upon any such oral examination as aforesaid shall be deposition taken down in writing by the examiner not ordinarily by question and answer but in the form of a narrative expressed in the first person; and when completed shall be read over to the party examined and shall be signed by him in the presence. of the parties or of such of them as may think fit to attend. C.O., c 21, r. 216. signing 217. In case the party or person examined refuses or is Witness not unable to sign the depositions then the examiner shall sign deposition the same; and the examiner may upon every examination state any special matter to the Court if he thinks fit. C.O., c. 21, r. 217. Report of special matter 218. It shall be in the discretion of the examiner to put answer. Question and down any particular question or answer if there appears to be objections, etc. any special reason for so doing and any question or questions objected to shall at the request of either party be noticed or Recording in referred to by the examiner in or upon the depositions; and deposition he shall state his opinion thereon to the counsel, advocates. agents or parties and if requested by either party he shall on the face of the depositions refer to such statement. C.O., c, 21. r. 218. taken in 219. In case of an examination before the trial or otherwise Deposition than at the trial of an action if the examining party desires to shorthand have such examination taken in shorthand he shall be entitled to have it so taken at the place of examination except where the Court or a judge sees fit to order otherwise. C.O., c. 21, r. 219 completion of shorthand report 220. Where an examination in a cause or proceeding is Form an taken by the examiner or any other authorized person in shorthand the examination may be taken down by question and answer; and in such cases it shall not be necessary for the depositions to be read over to or be signed by the person examined unless the judge so directs where the examination is taken before a judge or in other cases unless any of the parties so desires. C.O.. c. 21, r. 220. Certified copy 221. A copy of the deposition so taken certified by the per of depositions son taking the same as correct shall for all purposes have the same effect as the original depositions in ordinary cases. C.O., c. 21, r. 221. Filing depositions evidence 222. Wherever any such examination of any party or witness has been taken before a clerk of the Supreme Court or before any officer or other person authorized or appointed to take the same the depositions taken down by the examiner shall at the request of any party interested and on payment of Certified copies his fees be returned to and kept in the office of the clerk of the Court in which the proceedings are being carried on; and office copies of such depositions may be given out and the examinatons and depositions certified under the hand of the examiner taking the same or a copy thereof certified under the hand of the clerk of the Court shall without proof of the signature be received and read in evidence saving all just exceptions. C.O., c. 21, r. 222. Special report of examiner Use of examination at trial 223. Every person taking examinations may and if need be shall make a special report to the Court in which such proceedings are pending touching such examinations and the conduct. or absence of any witness or other person thereon or relating thereto; and the Court shall institute such proceedings and make such order upon such report as justice may require and as may be instituted and made in any case of of contempt of Court. C.O., c. 21, r. 223. 224. Any party may at the trial of an action or issue or upon any application or motion use in evidence any part of the examination of the opposite parties: Provided always that in such case the judge may look at the whole of the examination and if he is of opinion that any other part is so connected with the part to be so used that the last mentioned part ought not to be used without such other part he may direct such other part to be put in evidence. [(2) Where an officer of a corporation has been examined under rule 201, the whole or any part of the examination may be used as evidence by any party adverse in interest to the corporation, and shall be evidence accordingly; but, in the case of a part only being used, the corporation may put in as explanatory any other part of the examination which is so connected with the part to be so used that the last mentioned part ought not to be used without such explanatory part, or may use the remainder of the examination of the officer as evidence on the part of the corporation. (3) Where a person who has been an officer of a corporation has been examined under rule 201, the whole or any part of his examination may, by leave of the judge, be used in the same manner as in the preceding subrule provided in respect to the examination of an existing officer of a corporation, but this subrule shall not apply to the case of an officer who has been dismissed from the service of the corporation before service of the appointment for the examination.] C.O., c. 21, r. 224; 1902, c. 5. s. 1. |