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.
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