How This Rule Works

Rule 18.01 allows for oral discovery of parties and non-parties by agreement, under discovery subpoena (formerly a notice of examination), or by court order. Rule 18.03 reminds counsel that witness interviews and taking of sworn statements are alternatives to oral discovery.

Experts retained by a party are not subject to discovery except by consent or through written questions, as provided in Rule 55 – Expert Opinion.

Discovery Subpoenas and Orders

To obtain a discovery subpoena from the prothonotary, a party must file representations that they have disclosed their documents and electronic information, and that the discovery will promote the just, speedy, and inexpensive resolution of the proceeding. The representations must concisely state the party’s grounds for this belief and explain why a discovery subpoena is required instead of, or in addition to, an agreement. Forms 18.04B and 18.05B set out the required representations.

Rule 18.24 sets out some examples of situations where discovery may be necessary, such as:

1. a non-party witness who will not consent to be interviewed;
2. an ill-informed designated manager;
3. as a last resort to deal with unfulfilled undertakings; or
4. a witness who will be too ill to attend trial where commission evidence would be inappropriate without discovery.

All of the examples suggest a relatively high threshold to meet the representations required to obtain a discovery subpoena.

If the threshold is met, the prothonotary will issue a discovery subpoena for any party, or for the designated manager and one other officer or employee of a corporate party on 10 days notice to the witness and all other parties (R.18.04(6) and (7)). (The notice period under the previous R.18.05 was 5 days.) Corporate parties are under a duty to take “all reasonable steps” to make the officer or employee available (R.18.04(8)).

Rule 18.04 allows for discovery of at least a second officer or employee is possible after discovering the designated manager and the first officer or employee, with the addition of an undertaking in R.18.04(4) to pay for the court reporter, transcript, and the witness’s reasonable expenses including transportation, accommodation and meals.

Rule 18.05 allows for discovery of non-parties on providing the usual representations, plus an undertaking in R.18.05(2)(b) to pay for the court reporter, transcript, the witness’s reasonable expenses including transportation, accommodation and meals, and a witness fee of $35 per hour. The Rule provides for “immediate” expense reimbursement and payment of the fee “immediately” on conclusion of the discovery. If the witness requires his or her own counsel, the party who obtained the subpoena may also be ordered to pay counsel fees for the witness under R.18.05(3). The Rule does not provide for cost sharing among all parties examining the witness – it appears that the party obtaining the subpoena is responsible for all of the associated costs.

Rule 18.08 allows a judge to revoke additional discovery subpoenas if further discovery would not promote the just, speedy, and inexpensive resolution of the proceeding. Normally the applicant would have the onus, but this is not specifically stated in the Rule.

Rules 18.09-18.11 allow for discovery on motion to a judge in an application, or on motion to the prothonotary, with a judge’s permission (which would likely be sought at the initial motion for directions.) There is more flexibility around payment of expenses and “attendance fees” or “witness fees” and designation of a manager for discovery.

Discovery is available by order under R.18.12, including before a proceeding has been started, if evidence needs to be preserved or another court requests assistance. Rule 18.12(3) allows for discovery of a witness out of the jurisdiction by order, particularly where a discovery subpoena cannot be enforced. The Nova Scotia court may request assistance from another court under R.18.14(2).

Conduct of the Discovery

Rules 18.02 and 18.03(5) codify best practices, such as giving careful consideration to whether the discovery is necessary, cooperating to hold it quickly and conveniently, ensuring witnesses attend properly prepared and with refreshed recollection, and conducting the discovery appropriately.

The new R.18.14 is more flexible about the place for discovery and does not specify default locations as did the previous R.18.03 and R.18.04. Rule 18.15 allows for audio-visual recording on agreement or order.

The party who first requests discovery or obtains a subpoena has conduct of the discovery and may direct the order in which the parties will question a witness (R.18.16(1)). Where more than one witness is present, the order is determined by the party who requests any of the discoveries or obtains any subpoena, and whose name appears first on the heading (R.18.16(2)).

Rule 18.13 sets out the proper scope of discovery. It requires a witness to answer every question asking for relevant evidence or information likely to lead to relevant evidence, and to produce relevant documents at the discovery or later.

Rule 18.17 addresses objections. It codifies the current practice of instructing a witness not to answer a question where there has been an objection and requires the objecting counsel to state the grounds for the objection and describe any series of questions or subject to which the objection would generally apply (R.18.17(5)). In response, the questioning party may withdraw the question, reserve the question and continue the discovery, or adjourn the discovery for a motion, if there is no reasonable alternative.

Rule 18.17(5)(a) only mentions relevance and privilege as proper bases for discovery objections but is not intended to limit or change the common law relating to discovery objections.

Rule 18.18 allows for discovery undertakings for documents, electronic information and other things and permits adjournment of the discovery as of right, pending production. Rule 18.16 sets a 60 day time limit to comply with undertakings and R.18.18(4) allows a judge to relieve the obligation to produce if a person can rebut the presumption for disclosure.

Rule 18.19 continues the ongoing duty to correct erroneous or incomplete answers. It requires immediate notification of all parties and provision of a signed written statement with the correct or complete information. The Rule imposes a duty on corporate parties to supply or correct such information at least one day before the finish date or day of hearing an application or risk exclusion of the evidence or costs consequences.

Abuses and Remedies

Under the previous R.18.15 a party who refused to attend discovery, answer questions, or produce documents stood to be found in contempt or have his or her pleadings struck, and allowed the court to make whatever other order was just. The broad range of remedies continues under R.18.22. Rule 18.22 requires a contempt finding under R.89, but once this finding is made, R.89.13 incorporates all of the remedies available for abuse of process under R.88 as well as those available for contempt of court.

Rule 18.23 allows a party who believes a discovery is being conducted abusively to adjourn it by undertaking to bring a motion under R.18.23(2) to terminate or limit the discovery. The examples of abusive conduct are found in R.18.23(3) all relate to abusive questioning. The remedy for abusive use of objections lies in a motion to determine an objection under R.18.17(7). Other types of abusive conduct by counsel for the witness may be addressed through a motion for supervision by a judge under R.18.23, or for directions governing the conduct of the discovery under R.18.17(8).

Uses of Discovery Evidence

Rule 18.20 codifies current practice on the use of discovery transcripts and R.18.21 allows for reading in or tendering excerpts at trial or hearing. Unlike the previous R.18.14(2), it does not specifically address an opposing party reading in additional portions of the transcript for context. Rule 39.07 specifically provides that affidavits filed in one proceeding may be used in another to impeach or prove a fact, including through admissible hearsay.

Highlights of Changes

The most significant change to discovery practice is the complete elimination of expert discovery, except by consent.

The nomenclature has changed slightly, in that a notice of examination is now a discovery subpoena. Discovery subpoena forms differ for parties and non-parties.

Another significant change is emphasis on alternate means to gather information, such as interviews, taking sworn or affirmed statements, or discovery by agreement, before resorting to a discovery subpoena. The Rules now require representations from counsel or a party justifying the discovery prior to obtaining a subpoena. The threshold for obtaining a discovery subpoena is higher than for a notice of examination under the previous Rules.

Parties retain the ability to discover additional corporate witnesses and non-parties, but with a much steeper price tag than in the past.

While the previous R.18.14(4) allowed for the use of discovery evidence in some subsequent proceedings, there is no provision for this in the new R.18.

Practice Tips

In order to comply with the requirement for immediate payment of expenses of non-parties, counsel will have to arrange to have cash or a cheque available at the discovery. Note that the witness fees and costs are considerably higher than those required under the Costs and Fees Act.

The limitation on expert discovery in R.18.13(5) applies to “an expert retained by a party.” The Rules do not appear to alter the common law relating to the limited situations where opinion evidence may be elicited from a party, corporate representative, or other witness on discovery. See John A. Olah, The Art and Science of Advocacy (Toronto: Carswell, 2006) at 5-38.7.

Ontario’s R.31.06(3) specifically permits a discovering party to “obtain disclosure of the findings, opinions and conclusions of an expert engaged by or on behalf of the party being examined that relate to a matter in issue in the action and of the expert’s name and address” except where the opposing party claims privilege over the information.