Part 5 Preliminary discovery and inspection
(cf Federal Court Rules, Order 15A, rule 1)
In this Part:applicant means an applicant for an order under this Part.
identity or whereabouts includes the name and (as applicable) the place of residence, registered office, place of business or other whereabouts, and the occupation and sex, of the person against whom the applicant desires to bring proceedings, and also whether that person is an individual or a corporation.
5.2 Discovery to ascertain prospective defendant’s identity or whereabouts
(cf Federal Court Rules, Order 15A, rules 3, 5 and 9)
(1) This rule applies if it appears to the court that:(a) the applicant, having made reasonable inquiries, is unable to sufficiently ascertain the identity or whereabouts of a person (the person concerned) for the purpose of commencing proceedings against the person, and(b) some person other than the applicant (the other person) may have information, or may have or have had possession of a document or thing, that tends to assist in ascertaining the identity or whereabouts of the person concerned.(2) The court may make either or both of the following orders against the other person:(a) an order that the other person attend the court to be examined as to the identity or whereabouts of the person concerned,(b) an order that the other person must give discovery to the applicant of all documents that are or have been in the other person’s possession and that relate to the identity or whereabouts of the person concerned.(3) A court that makes an order for examination under subrule (2) (a) may also make either or both of the following orders:(a) an order that the other person must produce to the court on the examination any document or thing that is in the other person’s possession and that relates to the identity or whereabouts of the person concerned,(b) an order that the examination be held before a registrar.(4) An order under this rule with respect to any information, document or thing held by a corporation may be addressed to any appropriate officer or former officer of the corporation.(5) A person need not comply with the requirements of an order under subrule (2) (a) unless conduct money has been handed or tendered to the person a reasonable time before the date on which attendance is required.(6) If the other person incurs expense or loss in complying with an order under subrule (2) (a), and the expense or loss exceeds the amount paid to the person under subrule (5), the court may order the applicant to pay to that person an amount sufficient to make good the expense or loss.(7) Unless the court orders otherwise, an application for an order under this rule:(a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of information, documents or things in respect of which the order is sought, and(b) must, together with a copy of the supporting affidavit, be served personally on the other person.(8) An application for an order under this rule is to be made:(a) if it is made in relation to proceedings in which the applicant is a party, by notice of motion in the proceedings, or(b) in any other case, by summons.(9) This rule applies, with any necessary modification, where the applicant, being a party to proceedings, wishes to claim or cross-claim against a person who is not a party to the proceedings.
5.3 Discovery of documents from prospective defendant
(cf Federal Court Rules, Order 15A, rules 6, 7 and 9)
(1) If it appears to the court that:(a) the applicant may be entitled to make a claim for relief from the court against a person (the prospective defendant) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and(b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and(c) inspection of such a document would assist the applicant to make the decision concerned,the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person’s possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief.(2) An order under this rule with respect to any document held by a corporation may be addressed to any officer or former officer of the corporation.(3) Unless the court orders otherwise, an application for an order under this rule:(a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought, and(b) must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed.(4) This rule applies, with any necessary modification, where the applicant, being a party to proceedings, wishes to decide whether or not to claim or cross-claim against a person who is not a party to the proceedings.
5.4 Discovery of documents from other persons
(cf Federal Court Rules, Order 15A, rule 8)
(1) The court may order that a person who is not a party to proceedings, but in respect of whom it appears to the court that the person may have or have had possession of a document that relates to any question in the proceedings, must give discovery to the applicant of all documents that are or have been in the person’s possession and that relate to that question.(2) Unless the court orders otherwise, an application for an order under this rule:(a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought, and(b) must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed.
5.5 Discovery and inspection generally
(cf Federal Court Rules, Order 15A, rule 10)
Division 1 of Part 21 applies to and in respect of the discovery and inspection of documents the subject of an order for discovery under this Part in the same way as it applies to the discovery and inspection of documents the subject of an order for discovery under that Division.Note. See also rule 23.8 with respect to inspection of property.
(cf Federal Court Rules, Order 15A, rule 11)
An order under this Part may be made subject to a condition requiring the applicant to give security for the costs of the person against whom the order is made.
(cf Federal Court Rules, Order 15A, rule 2)
An order under this Part does not operate so as to require the person against whom it is made to produce any privileged document that the person could not be required to produce:(a) if the applicant had commenced proceedings against that person, or(b) if that person had otherwise become a party to proceedings to which the applicant is a party, or(c) if the person had been served with a subpoena for production of the document in proceedings to which the applicant is a party.
(cf SCR Part 52A, rule 26; DCR Part 39A, rule 5; Federal Court Rules, Order 15A, rules 4 and 11)
(1) On any application for an order under this Part, the court may make orders for the costs of the applicant, of the person against whom the order is made or sought and of any other party to the proceedings.(2) The costs in respect of which such an order may be made include:(a) payment of conduct money, and(b) payments made on account of any expense or loss in relation to the proceedings, and(c) the costs of making and serving any list of documents, and(d) the costs of producing any documents for inspection, and(e) the costs of otherwise complying with the requirements of any order under Division 1 of Part 21, as applying to the discovery and inspection of documents the subject of an order for discovery under this Part.