CANADA Law and Practice Contributed by: Craig Ferris, Marko Vesely, Shannon Hayes and Catherine Whitehead, Lawson Lundell LLP
5. Discovery 5.1 Discovery and Civil Cases
new claims. If a party is to be added as a plaintiff, the new party must consent. A person called an “intervenor” may also be added to proceedings with leave of the court. They are not necessary for adjudicating the issues, but the court may allow them to participate on terms if they may be of assistance to the court in adjudicating the issues. 4.5 Applications for Security for Defendant’s Costs The availability of security for costs depends on the jurisdiction. The test that the court will apply may vary, but it will typically include the consideration of various factors such as the merits of the issues, the ability of the responding party to pay, the ability to enforce against assets in the jurisdiction and prejudice. 4.6 Costs of Interim Applications/Motions The default rules for how the costs of an interim application are treated will depend on the jurisdic- tion. Some jurisdictions in Canada provide that the successful party is entitled to the costs of the interim application unless the court orders otherwise, while in other jurisdictions, the costs of interim applications are addressed after trial or upon further direction of the court. The court has wide discretion regarding costs, includ- ing determination of when any amounts are payable and the amount owed. The rules of procedure may also have a schedule of amounts that apply to certain steps, unless the court orders otherwise or permits the review of costs by an assessment officer in accord- ance with certain rules or manuals. 4.7 Application/Motion Timeframe For commercial matters, there are no legal require- ments for when a judge must issue a decision on an application, even if the application is made on an urgent basis. Some jurisdictions in Canada have specialised commercial courts to hear urgent mat- ters, such as bankruptcy and insolvency applications, injunctions or matters under the business corpora- tions legislation. The scheduling and administration of these courts typically allows for a judge to reach a decision in a timely manner, particularly if a decision is needed before a closing or enforcement date.
Discovery involves the production of relevant docu- ments and the examination of enumerated classes of witnesses, either in person or through written inter- rogatories. Discovery is administered by the parties, although resort to the courts may be necessary to settle dis- putes regarding the timing or scope of disclosure and objections to questions asked during examination or requests for undertaking to produce further docu- ments or information. The relevancy of documents and questions to the mat- ters at issue is a guiding factor related to the scope of discovery. Materiality may be another guiding factor regarding the scope. Parties are expected to man- age litigation in a manner that is proportionate to the amount involved, the importance of the issues and the complexity of the proceedings. Besides obtaining court orders regarding the scope of discovery or agreement amongst the parties, there are no express mechanisms to constrain the costs of this procedural step. 5.2 Discovery and Third Parties The ability of a party to examine third parties depends on the rules of procedure in the jurisdiction. For exam- ple, there may be an enumerated list of individuals that may be examined as of right. This may include third parties to the proceedings, such as employees or auditors of a party. In others, a court order may be required. The examination of witnesses is usually agreed to by the parties, but if there is a dispute, a further notice or court order may be required to compel a witness to attend. On application, the court will consider whether the third party has relevant and material information to the dispute. The court may also limit the number of individuals that an adverse party may examine. Court orders are also required for the production of documents in the possession or control of third par- ties, if that party refuses to provide any requested
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