EXAMINATION ON DISCOVERY IN QUEBEC
W. C. J. Meredith. Q.C.*
Examination on discovery provides the trial lawyer with an effective means
of obtaining valuable evidence and of weakening his adversary’s case. It also
helps to clarify the issues, shortens the length of the trial and frequently leads
to a satisfactory settlement. The relevant procedure and jurisprudence, and the
manner in which such examinations should be conducted are therefore of con-
siderable importance. The basic procedure is set out in Articles 286 and 286(a)
C.C.P. as amended to date1 . They read as follows: –
286. After defence filed, any party may, after one clear day’s notice to the
attorney of the opposite party, summon any of the following persons to answer
as a witness, before the judge or the prothonotary, upon all facts relating to the
action or the defence:
1. The opposite party, his bookkeeper, agent or manager;
2. When the opposite party is a corporation, the president, manager, treasurer,
secretary or, on the authorization of a judge, any other officer or employee of
such corporation;
3. When the opposite party is a foreign firm or corporation doing business in
this Province, the agent of such firm or corporation.
4. In actions resulting from an offence or quasi-offence, the person having the
charge, direction, custody or operation of the thing which caused the damage,
whether the opposite party be a person, corporation, firm or foreig’, corporation
doing business in this Province.
5. The person whose rights are exercised by the opposite party as p’trte-nom,
subrogated party, transferee, tutor, curator or in any other similar capacity.
If the person to be examined cannot be summoned or cannot appear, the judge
in such
may order the summoning or the examination upon such conditions,
manner and within such delay as he may deem equitable.
286a. Before the filing of the plea and within the delay fixed for such filing.
the defendant, after one clear day’s notice to the plaintiff’s attorney, may summon
to appear before the judge or the prothonotary, subject to article 314, to be
examined as a witness on the facts relating to the claim, the plaintiff or the
party for whom he is claiming, or for whom he is acting as prite-nom in the cases
where such a proceeding is admissible, as well as the persons mentioned in para-
graphs 2, 3 and 4 of article 286.
*Dean of the Faculty of Law, McGill University. The material for this article was
prepared by the author at the request of Mr. Philippe Ferland, Q.C., LL.D. for inclusion
in modified form in the latter’s forthcoming book on Civil Procedure.
1The Code of Civil Procedure is referred to throughout in this article by the letters
“C.C.P.” It should be noted that in 1945 work commenced on revision of the present
Code, the object being “to render the procedure less costly, more simple, more expedi-
tious and better adapted to present needs”. The first draft prepared by Messrs. August
I.isilets and Girard Trudel was completed in 1947, and contained 1,109 articles as
compared with 1,450 in the present Code. Later a Committee (of which this writer
was a member) was appointed by the General Council of the Provincial Bar to study
the draft and make recommendations. This Committee has met on several occasions
and its suggestions have been forwarded to the Attorney-General. It is not yet possible
to foretell when a new code of procedure will be enacted.
No. 11
EXAMINATION ON DISCOVERY
The defendant may also summon and examine in the same manner the victim
of an offence or quasi-offence in any action for the recovery of damages, notwith-
standing paragraph 4 of article 314.
The examination must be held within the eight days following the delay for2
the filing of the plea; nevertheless the court or judge may extend the delay for
examination when by reason of the illness or absence of the person summoned
to appear or for any other cause not imputable to the defendant, the latter is
prevented from effecting the examination within the said delay of eight days.
The provisions of the second paragraph of paragraph 4 of article 286
shall
apply to the summoning and examining of any person who is subject to the
examination contemplated by this article.
When a summons for examination is served within the delays and in conformity
with this article, the delay for filing the plea is suspended until the day of the
examination or, if it is not held, until the expiration of the delay for holding it.
This article shall apply only to causes brought before Superior Court.
Other provisions to be discussed are contained in Articles 287, 288, 289
and 290 C.C.P. Unlike the examination known as Interrogatories upon Arti-
culated Facts which came to us from France, the right to examine on discovery
is of English origin. 4 Today, however, the relevant procedure in Quebec differs
substantially from that in England and other common law jurisdictions. It is
proposed to deal with the subject from a practical point of view, and under
three headings: (1) Examination on Discovery before Plea; (2) Examina-
tion on Discovery after Plea, and (3) Examination on Discovery in General.
I-EXAMINATION ON DiscovY BEFORE PLzA
(ARTIcLE 286(a) C.C.P.)
Right to Examine – Amendment of February 21st 1958. Since examin-
ation under Article 286(a) must be held before the filing of a defence, it is
obviously open only to the defendant. Provision for discovery at that stage of
the proceedings was first introduced ift Quebec in 1926,5 but the article as it
now reads dates only from an important amendment passed on February 21st
1958.6 In its original form, and until that amendment, the defendant’s right to
examine before plea was not absolute. The article required a motion for per-
2 The words “the delay for” have been
inserted by the writer. Through some
clerical or stenographical error they were omitted from the English text although they
appear in the French text: “… qui suivent le d6lai de production de la defense”. The
error will no doubt be corrected at the next Session.
SThe second paragraph to paragraph 4 of Article 286 was added in 1939 by 3 Geo.
VI c. 96, s.2. To avoid confusion it should be noted that in Weber’s Code of Civil
that paragraph appears after paragraph 5 of Article 286, and not
Procedure (1956),
as a second paragraph to paragrph 4 of that article. (Paragraph 5 was added later by
(1944) 8 Geo. VI, c. 45, s. 3.).
4 For interesting discussion by Bruneau J. on the respective origins of the two types
of examination see La Cie Guillemette v. Magnan (1916) 17 Q.P.R. 461 (S.C.). Inter-
rogatories upon Articulated Facts (Faits et Articles) are dealt with in article 359
C.C.P. et seq.
5(1926) 16 Geo. V, c.65, subsequently amended by 25-26 Geo. V, c.99 s.1; 2 Geo.
VI, c.100 s.2; 3 Geo. VI, c.96, s.3 and finally by 6-7 Eli. II c.43 s.1.
6(1958) 6-7 Eliz. II, c.43 s.1.
McGILL LAW JOURNAL
[Vol. 5
mission to examine, accompanied by an affidavit that the request was made in
good faith and not in any way for the purpose of unjustly delaying the case.
The granting or otherwise of the motion was in the judge’s discretion, 7 and
his decision was seldom reversed in appeal (assuming such an interlocutory
judgment to have been susceptible of appeal under Article 46 C.C.P.).s Although
the tendency was to maintain these motions (since they might result in short-
ening the length of the enqu&e or lead to a settlement) 9 it was customary to
dismiss them when the Court did not consider that any useful object would be
served by a discovery,’ 0 e.g. in most actions on promissory notes and accounts.”
As a result of the above “mentioned amendment, the procedure has become
simplified. No request, motion or affidavit is necessary save in cases contem-
plated in the second part of paragraph 2 of Article 286 (which applies also to
examinations under Article 286(a)). Except in those cases the defendant may
now examine the plaintiff or any of the other persons referred to in the article
as.a matter of right, after complying with the requirements of notice and sum-
mons. These must be served before filing a plea, and before the legal delay for
doing so has expired. The clerical error in paragraph 3 of the English text (see
fn. 2) will no doubt be corrected at the next Session.
Persons Examined. The words in Article 286(a) “the party for whom he
is claiming”
the plaintiff claims to
exercise. Thus, when an insurance company settles an accident victim’s claim
and after taking subrogation, sues to recover the amount it has
id him, t&e
include parties whose rights of action
7St. Amour v. Chabot [1947] K.B. 779; Metropolitan Loan Corp. v. Prudential
Construction Co. Ltd. [1948] Q.P.R. 254 (S.C.) ; Bureau v. Pageau [“1948] Q.P.R. 280
,(S.C.); Piron v. Dufeutrelle (1941) 45 Q.P.R. 328 (S.C.) ; Biltwell Realties v. Lewis
[1949] Q.P.R. 173 (S.C.).
81n Avery v. Schumann [1956] Q.P.R. 336 (Q.B.)
the Court of Appeal held (Bis-
sonnette J. dissenting) that such a judgment -was not susceptible of appeal. See on the
other hand Cadillac Hosiery Mills Ltd. v. Caprice Hosiery Mills [1958] Q.B. 519 which
was concerned with an appeal from an interlocutory judgment dismissing a motion under
article 286(a), and Jutras v. Poirier, infra fn. 9.
9 Marcoux v. Fortin (1929) 32 Q.P.R. 60 (S.C.) ; Simard v. Cloutier [1949] Q.P.R.
395 (S.C.) and general principles laid down at plenary session of Court of King’s
Bench in Barry Casuals Inc. v. A.B.C. Corp: [1949] K.B. 28. In Jutras v. Poirier [19541
K.B. 284 it was held that the only cases in which permission should be refused (other
than in the case of bad faith or frivolity) were few in number and were those in which
the allegations were so clear and simple that an examination would be an obvious
waste of time.
1OLitourneau v. Banque Canadienne Nationale [1950] K.B. 711; Guy v. Gagnon
[1948] Q.P.R. 246 (S.C.) ; Gaucher v. Huard (1935) 39 Q.P.R. 221 (S.C.) ; Deslandes
v. Irvine [1951] Q.P.R. 20 (S.C.) ; Fournier v. Renaud [1949] KB. 363.
“1Duci v. Mandanicci [1950] Q.P.R. 268 (S.C.); Lavigne v. Levesque [195] Q.P.R1
422 (S.C.); Roux v. Martel [1955] Q.P.R. 243 (S.C.) ; Pinsky v. David [1953] Q.P.R.
308 (S.C.); Roux v. Baril [1955] Q.P.R. 304 (S.C.). In exceptional circumstances,
however, the examination was allowed in such cases, e.g. Racine v. Langlois [1955]
Q.P.t. 65 (S.C.); Morgan v. Turner [1955] Q.P.R. 96 (S.C.).
No. 1]
EXAMINATION ON DISCOVERY
defendant is entitled to examine the accident victim on discovery although he is
not a party to the action.12
In an action taken by a tutor on behalf of a minor, the minor may be
examined on discovery provided he or she is sufficiently mature to understand
the situation and to appreciate the difference between truth and falsehood. The
plaintiff’s attorney may object to the examinaion on the ground that the minor
is too young.’ 3 In that event the competency or otherwise of the child to testify
may be determined by way of voir dire.14
Under Article 314(4) C.C.P. neither husband nor wife is competent to
testify against the other except in the cases mentioned in that article. The second
paragraph of Article 286(a) creates a further exception to that rule. For ins-
tance, if a husband claims damages for injuries to his wife, the wife, when
examined on discovery is the defendant’s witness and may therefore testify
against her husband. This exception, however, applies only when the action has
been taken on the wife’s behalf, either by her husband alone or by the husband
acting jointly with her. For example, in McDougall v. Lussier’5 the father of a
child who had been fatally injured in an accident sued the defendant for
damages under Article 1056 C.C. He took the action both in his personal
capacity and as head of the community existing between him and his wife. The
latter was not a party to the action.16 On a motion by the defendant to examine
both husband and wife on discovery before plea, Brossard J. held that the excep-
tion was not applicable, and refused permission for examination of the wife.
It is important to note that the first paragraph of Article 286(a) includes
the persons mentioned in paragraphs 2, 3 and 4 of Article 286 in the cases
contemplated in those paragraphs. As to the interpretation of the words “any
other officer or employee of such corporation” in paragraph 2, see infra page 63.
Paragraph 4 of Article 286 (also applicable to 286(a)) provides for exam-
ination in cases of delict and quasi-delict of “the person having the charge,
direction, custody or operation of the thing which caused the damage”, eg. the
driver of an automobile or the motorman of a tramcar. The person who may be
examined under this provision is the person having the charge, etc. of the thing
which is alleged to have caused the damage. For instance, in an action by a
railway company in which the plaintiff claimed that a collision between its train
and the defendant’s automobile was due to negligent driving of the automobile,
12 McCasland et al v. Rochette [1953] Q.P.R. 209 (S.C.); Canadian Home Ass’ce.
Co. v. Metane Planning Mills Ltd. [1956] Q.P.R. 13 (S.C.). See also Wawanesa Mutual
Ins. Co. v. Montreal Tramways Co. [1946] Q.P.R. 374 (S.C.); Canadian General Ins.
Co. v. City of Montreal (unrept’d., but referred to in the McCasland case supra):
Workmen’s Compensation Commission v. Montreal Tramways Co. [19471 KB. 218.
‘5 And therefore incompetent under Art. 314 (1) C.C.P.
1 Art. 328 C.C.P. In practice the judge usually asks the child a few preliminary
questions in-order to determine whether or not the examination should be permitted.
15[19561 Q.P.R. 424 (S.C.) and see authorities cited in report.
16Nor was there any allegation in the declaration to indicate that any part of the
claim was ma’de for her personally as distinct from the community.
McGILL LAW JOURNAL
[Vol. 5
it was held that the defendant had no right (before plea) to examine the person
in charge of the plaintiff’s train.’ 7 The Committee referred to in fn. 1 supra has
recommended that in the revised Code the words “the thing which caused the
damage” should be replaced by the words “the thing which is alleged by one of
the parties to have caused the damage.”18
The provisions contained in Article 2 8 6 (a) are limitative and should not
be extended in order to examine persons other than those referred to in the
article. O
Scope of Examination. Beacause the discovery is held before plea the scope
of examination is necessarily narrower than in an examination under Article
286.20 Its purpose is to enlighten the defendant as to the action as brought, not
to permit “an excursion at large”. The questions must therefore be relevant and
material, and not such as to cause delays by importing foreign matter into the
suit.21 Moreover, the questions must relate to the allegations in the Declaration,22
and not to things that happened subsequently 23 But the questions should not be
unduly restricted. Thus the Court of Appeal has held that thie article “should be
construed liberally, otherwise the object of such preliminary examination would
be frustrated, this being merely a preliminary stage” 2 4 It is noteworthy, how-
ever, and it may be significant that the amendment of February 21st 1958 has
since removed the word “all” from that part of the article which formerly read
“to be examined as a witness on all the facts relating to the claim.”
It has been held that a plaintiff who has alleged in his Declaration that the
-t refuse on
defendant made an admission in the presence of witnesses, ca.
discovery to disclose the names of those witnesses. 25
17CN.R. v. Noiseux [1952] Q.P.R. 35 (S.C.).
18See “Deuxiime Partie du Rapport du Comiti constit6 par le Conseil Gxn&ral
pour 6tudier l’avant-projet d’un nouveau Code de Proc&lure Civile”, p. 5.
‘9 National Lumber Exporters Ltd. v. Labonti [1952] Q.P.R. 368
In
Atty.-Gen. of Can. v. Davis [1957] Q.P.R. 143 (S.C.)
it was held that “le dffendeur
a droit A l’examen au pr~alable de la Couronne en l’absence d’allZgation d’intrzt
public A l’encontre de cette demande”.
20Wright v. Barry Casuals Inc. [1949] Q.P.R. 299 (S.C.); see also La Caisse Popu-
laire de la Sarre v. Bilanger [1953] Q.P.R. 446 (S.C.) at p. 448 distinguishing scope
of examinations under Arts. 286a and 286.
(S.C.).
21Henchey v. Gauthier [1945] Q.P.R- 106, 110 (KIB.).
22E.g. in Climent v. Dionne [1958] Q.P.R. 107 (S.C.)
it was held in part: “S’il
convient de donner A l’art. 286a C.P.C. une interpritation libfrale, il ne faut pas per-
mettre les abus qui s~meraient la confusion dans le champ oa doivent se d~rouler les
procedures conduisant A jugement et les questions pernises en tel examen doivent se
rattacher par un lien suffisamment visible aux yeux du Tribunal aL la d~elaration dans
laquelle la demande est formulie”; and see other cases cited on page 113 of Report.
23Presto Oil Co. v. Merette [1953] Q.P.R. 29 (S.C.); Canadair Ltd. v. Douglas
Aircraft Co. [1951] K.B. 470; see also Jacques v. Couture [1957] Q.P.R. 7 (S.C.).
24Charest v. Forget (1941) 70 K.B. 401, 403; see also Buisson v. Thibaudeau (1934)
38 Q.P.R. 112, 113 (S.C.).
25Lepage v. Roy [19521 Q.P.R. 261 (S.C.). However, the general rule, of course,
is that a party is not obliged to disclose the names of his witnesses, e.g. in Mainville v.
No. 1]
EXAMINATION ON DISCOVERY
Proof.-Documents, etc. (see also page 64 infra). It is important to bear
in mind that the examinee under Article 286(a) is the defendant’s witness and
that the deposition on discovery will form part of the court record.26 Care must
therefore be exercised to avoid helping the plaintiff to make his proof. In Collette
v. Ponton27 a husband sued for damages resulting from an accident to his wife,
but failed to produce a certificate of marriage. The Court of Appeal held that
the defendant had no ground for complaint on that score because the marriage
had been proved by the plaintiff’s answers to questions put to him on discovery
by the defendant’s attorney.
Questions on discovery may also open the door to testimony28 in cases in
which such proof would otherwise be inadmissible. In this connection Mr. Justice
Surveyer referred in an article 9 to a letter written to him by Mr. Justice
Mignault, reading in part:
Dans la province de Quebec, l’interrogatoire prgalable fait partie de la preuve
et cela g ne la libert6 de l’avocat de la partie adverse, car il s’expose a introduire
dans la procedure une preuve testimoniale que son adversaire ne pourrait faire
qu’avec un commencement de preuve par icrit.
For example, in Corporation du Collge Ste.-Marie v. RacettO the plain-
tiff on discovery before plea was questioned as to money she had deposited
from time to time with the College. Since the action was concerned with a non-
commercial matter involving more than $50, objection could have been made to
verbal evidence to prove the deposit,3 but no objection was made at the time.
At a subsequent stage of the proceedings, however, the appellant objected to
any verbal evidence on the part of the plaintiff, and later contended unsuccess-
fully that a deposition on discovery under Article 286(a) should not in any
event be held to form part of the record. Barclay J. stated in part (at page 150) :
Monfette infra fn. 64, the Court of Appeal held that objections to certain questions on
discovery should have been maintained because they were asked with the object oi
exposing the names of witnesses.
2 6Under Art. 288 C.C.P.
27(1930) 49 K.B. 566. See also The King v. Savard [1944] K.B. 328 at pp. 336,
339: proof of separation as to property made on discovery. This was admittedly second-
ary evidence, but no objection “was made at the time. In Grimaldi v..Restaldi [19331
S.C.R. 489 plaintiff had testified on discovery that the defendant admitted to him, in
the presence of other witnesses that the accident in question “was the chauffeur’s fault”
and that he (the defendant) was liable for the accident and its consequences. At the trial
the plaintiff merely proved the amount of damages and produced no further evidence
as to the chauffeur’s fault. Held inter alia that the plaintiff’s evidence on discovery
established sufficiently the existence of facts which explained the acknowledgment by
the defendant of his liability, as sworn to by the plaintiff, and that this fully justified
the judgment appealed from in favour of the plaintiff.
: 8i.e. verbal evidence.
29(1924) 2 Revue du Droit 204, at pp. 205, 206.
30[1944] R.L. 129 (K.B.).
31Art. 1233 C.C.
McGILL LAW JOURNAL
[Vol. 5
While a party may prevent the door being opened to verbal evidence, once he
himself has opened the door to such evidence, his objection comes too late and
he cannot object to his own evidence, more particularly in view of the subsequent
plea of payment, which tacitly admits the deposit.
At one time it was not uncommon to serve the plaintiff with a subpoena
duces tecum ordering him to bring to the examination accounts and other docu-
ments in support of his action. The plaintiff was then asked to produce them as
exhibits. In the absence of special circumstances, this practice is unwise since
it may amount to making proof against one’s own client. Nevertheless, there
may be a special reason for obliging the plaintiff to produce documents in his
possession. It has been held, however, that he is not required to produce those
which do not form the basis of the action a2 But if he has alleged certain docu-
ments in support of his declaration, the defendant may enforce their produc-
tion.m3 In many cases a defendant would be wiser to wait until he has filed a plea
and then move for production of such documents as he may require under
Article 289 C.C.P.34 (infra page 64).
Assuming the examination has been properly prerared, all documents
filed as exhibits with plaintiff’s action will have been inspected beforehand, and
notes will have been made on points justifying useful interrogation. Accuracy
of exhibits such as accounts, e.g. for hospital and medical services, repairs, etc.
may usually be checked in advance, and if found in order, there is no object in
refering to them on discovery. In most instances, however, it is necessary to
ask some questions relating to the nature and quantum of damages claimed,
practice to
and in that event the writer, for what it is worth, has made i.
insert a reserve along the following lines:
I wish to make it clear that all the questions I shall ask you in connection with
your alleged damages and losses will be asked without prejudice and under express
reserve of the defendant’s right to contend that all such alleged damages and
losses are unfounded, indirect and illegal.
From time to time, especially if the deposition be lengthy, it is well to refer
back to that reserve, e.g. “Always under the reserve already made by the
.” etc. Although this procedure sometimes is met by an objection,
defendant…
the writer is unaware of any judgment holding it to be illegal. It is obvious,
however, that the reserve (assuming it to be legal) is useful only within reas-
onable limits.
32Banque Can. Nationale v. Pomerleau [1943] Q.P.R. 385 (S.C.) ; La Manufacture
de Portes et Chassis du Lac Noir Ltie. v. Grigoire et al. [1957] Q.P.R. 252 (S.C.);
Rochester v. The E. B. Eddy Co. Ltd. (1923) 26 Q.P.R. 124 (K.B.).
z3It has indeed been held that even when the plaintiff alleges no documents in sup-
port of his declaration, the defendant may ask him, when summoned for examination
before plea, to bring certain specified documents alleged to be in his possession – Martens
v. Langevin (1935) 39 Q.P.R. 138 (S.C.).
34Under the old procedure which required a motion under Art. 286a it was held
that such a motion could not legally be coupled with a motion to produce documents
45 Q.P.R. 358
undert Art. 289 – Couillard-Desprs v. Le Siminaire de Quibec (1941)
(S.C.); and see Zinman v. Bishinsky [1948] Q.P.R. 98 (ICB.).
N~o. 1]
EXAMINATION ON DISCOVERY
Perempton. 35 Prior to the February 1958 amendment it was held that a
defendant who obtained judgment authorizing him to examine a plaintiff on
discovery could not have the suit perempted if he had not proceeded with the
examination or had not renounced the judgment permitting it, except when the
plaintiff had taken advantage of the defendant’s default to proceed with the
examination within the delay fixed by the court.36 Nor, it was held, could the
suit be perempted if the hearing of a motion under Article 286(a) had been
postponed by consent sine die.3 7 It seemed only reasonable that a defendant who
delayed the suit by neglecting to proceed with the motion, or with an examina-
tion authorized by the motion, should not be allowed to take advantage of his
own neglect. It is submitted that the same principle should be applied to the
amended article; e.g. a defendant should not be allowed to perempt if, after
serving a notice and summons, he did not proceed with the examination as
scheduled, or if, after arranging to postpone it sine die, both parties allowed
the action to lie dormant.
When Examination is Inadvisable. In some cases it may not be advisable
to examine on discovery. If, for example, the plaintiff has omitted one or more
material allegations from his declaration, a discovery might serve merely to bring
the omission to light, and result in amendment. If, on the other hand, the
defendant’s attorney lets the matter rest until trial, prescription may operate to
preclude the plaintiff from amending in cases where the amendment would
change the nature of the demand.38 And in a case in which testimony would
ordinarily be inadmissible,39 the defendant is often -better advised to forego the
3 5Under Art. 279 C.C.P. “suits are perempted when no proceeding has been had
therein during two years.” Art. 282 provides that “Peremption must be declared by the
court upon a motion of which notice is given to the attorney, or, if there is no attorney,
to the party himself.”
3UBoudreault v. Vizina [1956] Q.P.R 95 (S.C.). See, however, Bleau v. Kouri
[1956] Q.P.R. 285 (Q.B.) which applied the principle laid down in Titrault Fr~res
Ltie. v. Canadian Wineries [1953] K.B. 471. That case held that failure by a defendant
to furnish particulars within the delay fixed by the court was not an obstacle to a
motion for peremption. In Ciccanti v. Trottier (1944) 48 Q.P.R. 36 (S.C.)
it was held
that when a motion for examination has been granted, the date of same t6 be fixed by
consent of the parties, peremption starts to run from the date of he unanswered letter
to plaintiff’s attorneys asking when their client can be
from defendant’s attorneys
examined.
37Leblanc v. McClintock [1952] Q.P.R. 267 (S.C.). See also Kraus v. Jamieson
in which both attorneys had tacitly agreed that the examination
[1958] Q.P.R. 93 (S.C.)
would be held on a date to be chosen by defendants attorney. The latter let the matter
rest and later moved to perempt the suit. The motion was dismissed. See also cases
cited on page 94 of report. It should be noted that Art. 280(3) states that peremption
does not take place “when proceedings are compulsorily stayed by an incidental pro-
ceeding or by an interlocutory judgment”.
38E.g. Lair v. Laporte [1944] R.L. 286 (S.C.) at pp. 293, 294.
3 9 Art 1233 C.C.
McGILL LAW JOURNAL
[Vol. 5
right to discovery, thereby avoiding the risk of giving the plaintiff an oppor-
tunity to obtain a commencement of proof in writing.40
Bodily Injury Cases. In most cases involving bodily injury it is customary
for the defendant to make a motion for a medical examination before plea
under Article 286(b) C.C.P. In such cases it is desirable that the discovery
should precede the medical examination because the plaintiff’s evidence is often
useful to the examining doctor.
II-EXAMINATION ON DiscovERY AFrE PLEA
(ARTicLE 286 C.C.P.)
Right to Examine. Unlike the situation under Article 286(a) the right to
examine under Article 286 is open to both plaintiff and defendant. It is avail-
able to either party as soon as a plea to the action has been filed, and at any
time afterwards until the trial. The witness is summoned after one clear day’s
notice to the opposing attorney. No motion is necessary oxcept in cases con-
templated in the second part of paragraph 2 of the article.
Nor is the defendant’s right to examine under Article 286 affected by the
fact that he has already examined the plaintiff under Article 286(a). Indeed,
a second examination often serves a useful purpose. For example, in an action
for bodily injuries it is usually advisable to examine the plaintiff again shortly
before the trial to ascertain what progress he has made since the first examina-
tion. This may be of special importance if as a result of inforn., ion obtained
at the first discovery an investigation has been made concerning the plaintiff
and his activities.
Scope of Examination. Since the witness may be examined “upon all facts
relating to the action or the defence” the scope of examination is obviously
wider than under Article 286(a). 41 Plaintiff’s attorney examining a defendant
on discovery may try to obtain admissions on the facts of the claim; he is not
limited to the facts alleged in the plea. 42 The examination may also provide the
plaintiff with an opportunity to obtain a commencement of proof in writing.4
For example, when the defendant, in answering interrogatories on articulated
facts (where the same rule applies) stated that he had paid $728 to a party
since deceased as the purchase price of an automobile, Walsh J. observed in the
Court of Appeal :4,
4 0E.g. Corporation du Coll~ge Ste.-Marie v. Racette, op. cit. fi. 30.
4 1 See cases cited in fn. 20 supra and Jacques v. Couture op. cit. fn. 23.
4 2Lachance v. Lapointe [1955] Q.P.I. 299 (S.C.).
43Thereby permitting him to make proof by testimony (Art. 1233(7) C.C.). Art.
316 CC.P. provides that “a party may be examined by the opposite party and his
evidence may be used as a commencement of proof in writing.” This provision applies
on discovery as well as at trial – Blain v. Chhvrefils (1919) 55 S.C. 172.
4 4St.-Georges v. Auger [1943] K.B. 241 at p. 245.
No. 1]
EXAMINATION ON DISCOVERY
Normally parol evidence would not be admissible to prove this sale. In this
instance, however, the respondents provoked this mode of proof by questioning
the appellant as to all the circumstances of the purchase in question.
It is often desirable to examine the defendant on discovery before filing
an answer to plea. An examination at that stage should be helpful both in pre-
paring the answer and, in doubtful cases, 45 in determining wihether or not it is
advisable to implead a third party, or perhaps to desist as against one of several
defendants.
Persons Examined. These are mentioned in the five paragraphs of Article
286. Paragraph 2 concludes with the words, “or, on the authorization of a
Judge, any other officer or employee of such corporation”. These words should
not be interpreted to mean that a litigant may examine numerous officers or
employees of the opposite party and oblige them to expose their employer’s case
before the trial. Thus it has been held that the party examining may never as of
right summon more than one witness, and to be authorized to summon more
than one “he must at least establish that to complete the examination envisaged
by Article 286 he must question more than one of the corporation’s officers or
employees”.4 6 Paragraph 4 of the article has already been discussed (supra
page 57.
It has been held that an employee no longer in the employ of a defendant
corporation may still be examined on discovery if he is the person best qualified
to testify on the issues involved 4 7 Contrary to the rule in interrogatories upon
articulated facts,48 an employee who is examined on discovery is not obliged to
produce a resolution of his company authorizing him to give evidence. 49
All Evidence forms part of Record. As in the case of Article 286(a), all
the evidence taken on discovery under Article 286 forms part of the court
record.50 This rule is different elsewhere. In Ontario, for instance, the examining
party has the option of reading into the record at the trial those parts most
favourable to him. However, if after reading the deposition the Judge considers
45A plaintiff’s attorney not in a position to know all the facts at the time of insti-
tuting action may well be in doubt as to whom to sue and sometimes sues the w’ ong
party. When for safety’s sake he has sued several defendants, he may decide to desist
as against one or more of them, depending upon the evidence adduced at the examina-
tions on discovery.
46C.P.R. v. Lachance [1947] K-B. 403. A judgment ordering the examination of an
officer or employee should state which officer or employee is to be examined. A judg-
ment simply ordering the examination of “an officer of the company” should be
reversed on appeal – London & Scottish Ass’ce. Corp. v. Credit Foncier Franco-Cana-
dien [1952] Q.P.R. 271 (K.B.). Although this case was concerned with an examination
before plea, the same rule should be applied to an examination under Art. 286 (2).
47Lunham & Moore Shipping Ltd. v. I. & R. Weir Ltd. [1954] Q.P.R. 319 (S.C.).
48Art. 363 C.C.P.; and see Dumont v. Le College des Midecins et Chirurgiens de la
Province de Quibec (1901) 4 Q.P.R. 81 (S.C.).
49Hall Corp. of Canada v. Atlantic Steel Co. Ltd. [1955] Q.P.R. 9 (S.C.).
5OArt. 288 C.C.P.
McGILL LAW JOURNAL
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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.” 51 In the case of a corporation, the law
in that Province is that any officer or servant of the corporation may be orally
examined, but the examination “shall not be used as evidence at the trial”.5 2
Jurisdiction. Unlike an examination on discovery before plea, examina-
tions under Article 286 are not restricted to actions in the Superior Court.
Inspection of Documents, etc. The production of documents at an examina-
tion on discovery has already been discussed (supra page 60). It should be noted
however, that Article 289 makes special provision for inspecting documents,
objects, etc. in the opposite party’s possession or under his control. It reads as
follows:
Upon the application of any party, the judge may, at any time after defence
filed and before trial, order the opposite party to exhibic any object, or to give
communication or furnish a copy or allow a copy to b, made of, any book or
document in his control, relating to the action or the defence, at such times and
places, under such conditions and in such manner as are deemed proper.
This provision should not be confused (as it sometimes is) with Article 392
under which the Court or Judge may order an expertise. Article 289 is limited
in scope. For example (unlike the corresponding provisions in certain other
jurisdictions, e.g. Rule 34 of the U.S. Federal Rules of Civil Procedure)O it
;ssion to enter
has been held that an application made under that article for p.
the opposite party’s premises and carry out tests should be dismissed.5 4 Nor,
generally speaking, is a party permitted to make tests on an object, e.g. a piece
of mechanism ordered to be exhibited, especially if such tests might result in
altering its characteristics. 55
5 1Rule of Practice 330 (made pursuant to the Judicature Act, R.S.O. 1950, c. 190,
s.9).
52Rule of Practice 327(2).
53For interesting discussion on discovery and production of documents under the
Federal Rules see (1958) 58 Columbia Law Rev., p. 498 et seq.
54Gareau v. Mtl. Street Ry. Co. (1898) 1 Q.P.R. 566 (Q.B.); Dubois v. Horsfall
et al. (1900) 18 S.C. 138; United Shoe Machinery Co. v. Caron (1903) 6 Q.P.R. 100
(S.C.); Moore v. Merit Motors [1943] R.L. 13 (S.C.); Phoenix Ass’ce. Co. of London
v. City of Montreal [1952] Q.P.R. 313 (S.C.) ; Beaudet v. Bidard et al. [1955] Q.P.R.
87 (S.C.).
55Belair v. C.P. Express Co. [1947] Q.P.R. 415 (S.C.); Dion v. Lessard [19511
Q.P.R. 49 (S.C.). Dupri v. C.P.R., S.C. No. 213, 394, Jan. 20, 1944 (unrept’d.), was
concerned with an action for damages resulting from the death of plaintiffs husband
following derailment of a train. Defendant pleaded that the accident was due to a latent
defect in the rail which could not be foreseen and against which no reasonable care or
skill could provide. Plaintiff moved under Art. 289 to have the rail photographed and
subjected to certain analyses and tests. The Court ruled that plaintiff’s experts could
“(a) photograph the rail; (b) examine the rail under a microscope, and (c) take en-
larged photographs thereof”; but that “the rail is not be handled save insofar as may
No. 1 ]
EXAMINATION ON DISCOVERY
Application for inspection is open to either party and is made by way of
motion supported by an affidavit. As appears from the article, the motion cannot
be made until a defence has been filed to the action. If, at the hearing of the
motion it is shown that the party has neither possession nor control of the
document or object required, he cannot, of course, be ordered to produce it.56
A judgment granting such a motion and ordering a party to give communication
of certain books, documents, etc., does not fall within the terms of Article 46
C.C.P., and is therefore not susceptible of appeal.57
III-EXAMINATION ON DISCOVERY IN GENERAL
Preparation and Conduct. The examination should be preceded by thorough
preparation with concentration on the points upon which the attorney has reason
to believe he may obtain admissions and other evidence helpful to his client’s
case. A common mistake is to take the examinee over the allegations of his
pleadings without having any particular object in mind. In all probability the
answers will confirm the allegations, and the examiner will merely have helped
to make his opponent’s proof. Such an examination is worse than useless.
In conducting the examination, the attorney should constantly bear in mind
the impression the evidence is likely to make upon the Court. This is of parti-
cular importance in jury cases since it is customary 58 for the depositions on
discovery to be read to the jurors. 59 For example, in examining a widow
be necessary for re-assortment or placement for the above purposes, nor is it to be scraped
polished or otherwise tampered with”.
56Nor, it has been held, may a party be obliged to produce documents which do
not constitute the basis of the action or of the defence – Rochester v. The E. B. Eddy
Co. Ltd., op. cit. fn. 32. See also Cellulose Assets Ltd. v. Richmond Pulp & Paper Co.
of Canada Ltd. [1958] Q.P.R. 130 (S.C.). In Selkirk v. Hyde et at. [1958] Q.P.R. 281
it was held that a plaintiff who claims damages from a hospital and doctor
(S.C.)
alleging that injuries were sustained through the fault and negligence of both defendants,
is entitled to-have the defendant hospital ordered to show and allow a copy to be made
of its record of treatment of plaintiff. See also Mellen v. Nelligan et al [1952] S.C. 446.
5 7Crown Trust Co. v. Mussen (1939) 66 K.B. 517.
5 81t has been held that when two defendants to an action each produce- a plea raising
different issues, admissions or declarations made by one of them on discovery cannot be
used as proof against the other if the latter did not receive any notice of the date and
place of the discovery, and therefore had no opportunity to cross-examine the witness –
Wise v. Boxenbaum [1944] R.L. 97, 107 (K.B.). See also Livernois v. Beaudin [19511
Q.P.R. 39 (K.B.). See, however, Bethune v. Bainbridge [1953] Q.B. 740, in which
plaintiff’s motion to refer the case to a jury and to fix dates was opposed by one of
two defendants on the ground that two separate defences had been filed, and that only
the other defendant had examined the plaintiff on discovery. Under the circumstances
it was contended that the case could not be heard by one and the same jury. In this
case the two defences, although separate, were substantially to the same effect, each
placing the entire blame for an accident upon the plaintiff. The Superior Court judg-
ment dismissing plaintiff’s motion was. unanimously reversed in appeal.
59 In exceptional cases the parties may agree otherwise, but such cases are rare.
McGILL LAW JOURNAL
[Vol. 5
suing for damages resulting from a fatal accident to her husband, a suitable
opening would be: “You appreciate, Madam, that it now becomes my duty to
ask you some questions in connection with this unfortunate accident”. An
aggressive attitude, on the other hand, would be likely to antagonize the jury.
The examination should be confined to a reasonable length. Many depos-
itions are too long, with the result that favourable points are likely to become
buried in a mass of questions and answers.
Experience has shown that it is a wise precaution when starting the
examination to ask a preliminary question along the following lines: “Mr. X,
if you do not fully understand each and every question I shall put to you, will
you please say so at once so that I may repeat or rephrase my question? Other-
wise it will be assumed that you have understood the question. Is that perfectly
clear?” The witness’s answer is invariably in the affirmative.
It is important in the writer’s opinion that if the lawyer in charge of the
case does not personally conduct the discovery, he should at least be present at
the examination. It happens too often that an attorney, unfamiliar with the
facts and law of a case, is handed a file by a senior partner and instructed to
conduct single-handed a discovery due to start in a matter of hours. When it is
recalled that the outcome of an action may depend upon the evidence adduced at
the examination, the risk involved in such practice is obvious.
Generally speaking, it is not advisable to cross-examine on discovery in
non-jury cases, although there are exceptions to this rule. For example, one or
the examinee’s answers may have been given wit’ iut correctly
more of
understanding the questions put to him; or a point favourable to .-is case may
have been touched on only in part, or. may have become distorted. In jury cases,
however, the situation is somewhat different because, as already mentioned,
the depositions are usually read to the jurors and they, being laymen, may
wonder why the deposition is one-sided and may conceivably conclude that
since the other attorney asked no questions, he was not in a position to challenge
the evidence in chief. It is therefore good practice in jury cases to cross-examine
briefly, covering important points only, and bearing in mind how the cross-
examination will sound to the jury. The common practice of entering in the
record the words: “Cross-examination reserved” is irregular, and when made,
an objection should be taken and entered to such a reserve. If there is to be a
cross-examination, it should be held at the time of the discovery or not at all.
The general rule60 that cross-examination is restricted to facts raised in examina-
tion-in-chief applies also to cross-examination on discovery.6 ‘
Original depositions on discovery should not be retained, but should be
filed in Court as soon as they have been checked for stenographical errors.6 2
0OArt. 340 C.C.P.
OlArt. 287 C.C.P.
2 1n the event of any such errors, a letter should be written to the official steno-
8
grapher requesting that the necessary corrections be made. A copy of that letter should
always be sent to the opposing, attorney in case there should be any difference of opinion
as to how the deposition should read.
No. 1]
EXAMINATION ON DISCOVERY
Nor should notes or marks of any kind be made upon them. Copies of the depo-
sitions (ordered from the official stenographer at the time of the examination)
should be kept for office use. At the outset of a trial it is important to see that
the depositions are in the record, and to draw the Judge’s attention to the fact
that examinations on discovery have been held.
Objections to Evidence – Appeals. Many examinations on discovery are
held by consent in the office of one or other of the attorneys. But when the issues
are such that objections are likely to be raised at the discovery, it is preferable
to hold the examination at the Court House where the objections may. be
submitted for decision in the Practice Division or to a Judge in chambers. This
is particularly desirable in jury cases. If, on the other hand, questions or answers
are admitted under reserve of objections, it is important that the trial Judge
should be asked to rule upon them and to strike any illegal matter from the
record before the deposition is read to the jury. In some instances this precau-
tion has been over-looked, with the result that the jurors have heard evidence
they had no right to hear.
Appeals from interlocutory judgments on objections are subject to the
same general rule as applies at a trial; namely, a judgment maintaining an
objection is susceptible of appeal under Article 46 C.C.P.,.a whereas a judgment
dismissing an objection is not.”
Costs. The second paragraph of Article 288 provides that’costs of deposi-
tions form part of the taxable costs of the action. The following. paragraph
makes an exception to this rule when the party examined before the filing of
the defence is what the article describes as a “disqualified person”. In such a
case the cost of the summons and of the deposition must be paid by the examin-
ing party. Thus it has been held that when a minor is examined before plea,
such costs must be paid by the ddendant.” The general rule is that the taxable
costs for conducting an examination on discovery form part of the costs of the
action, and follow suit.
Actions in Separation from Bed and Board. In actions of this kind Article
1100 C.C.P. declares that “the parties cannot admit the allegations, proof of
which must always be made before the court”. In view of this Provision the
courts at one time held that examinations on discovery were not available in
actions in separation from bed and board. Motions to examine plaintiffs before
63Buzzel v. MacPherson (1934) Q.P.R. 377 (KB.) ; P. Marrazza Inc. v. Masonry
Construction Co. [1953] Q.P.R. 191 (Q.B.): and see article by Solomon Weber in
[1951] 11 R. du B. 371 citing Beaudry v. Fiset [1949] K.B. 844, in which the author
points out that the headnote in that case goes too far (see Galipeault J. at p. 844 of
report). Being an interlocutory judgment, however, leave to appeal must first be obtained
in accordance with Art. 1211 C.C.P.
64B.V.D. Co. Ltd. v. Canadian Celanese Ltd. (1935)
59 K.B. 418. See, however,
Mainville v. Monfette [1957] Q.B. 795.
e5See Bilanger v. Gagnon [1949] -Q.P.R. 129 (S.C.).
McGILL LAW JOURNAL
(Vol. 5
plea under the old procedure were therefore dismissed, and evidence taken after
plea under Article 286 was not considered. 66 Recent decisions, however, have
held otherwise. 67 The object of Article 1100 C.C.P., of course, was to prevent
collusion between the parties, but this is no reason for not permitting an exam-
ination on discovery. As pointed out in Cartier v. Boyer,68 a discovery provides
a party with the opportunity to become prepared to meet the evidence that will
be made against him; it does not prevent the court from requiring that the
proof must be made before it, nor from disregarding proof made contrary to
the terms of Article 1100.
Summons and “Taking of Evidence”. The rules governing “the summoning,
examination and punishment of witnesses and the taking of evidence apply, inso-
far as may be, to the cases mentioned in Articles 286 and 286(a). ‘ ‘6
When the party to be examined resides outside the jurisdiction, he is
entitled to be paid his expenses in coming to the place where the court is located
as well as his hotel expenses”0 . In virtue of Article 299 C.C.P., a party may be
summoned for examination on discovery in Quebec even though he resides in
Ontario. The necessity of such an examination must, however, be established
to the satisfaction of the court and adequate
travelling expenses must be
provided.7 ‘
Examination in Accounting Matters. It should be added that Article 570(a)
C.C.P. provides for a special type of examination’ on discovery in accounting
matters. It gives a party to whom an account has been rendered fin accordance
with Article 566 C.C.P. et seq.) the right to summon the accant-ng party, his
bookkeeper, authorized representative or manager, to be examined as a witness
“on any fact relating to the account filed and to the vouchers connected there-
with.”
The writer hopes that the foregoing discussion may be useful to attorneys
‘and law students in Quebec, and that from a comparative point of view, it may
be of some interest to practitioners in other jurisdictions.
6 6E,g. Emo v. Hughes (1940) 44 Q.PR.P 347 (S.C.); Patenaude v. Gingras (1926)
29 Q.P.R. 219 (S.C.); Boily v. Pipin (1940) 44 Q.P.R. 95 (S.C.).
6 7E.g. Vey v. Dewey (19441 Q.P.R. 265 (S.C.); Cartier v. Doyer [19581 Q.P.R
139 (S.C.). See also article by Rosario Genest in (1942) 2 R. du B. p. 241.
680p. cit., fn. 67.
60Art. 287 C.C.P.
7 oMcCasland et aL v. Rochette op. cit., fn. 12.
71McFayden v. Hutton et a[. [1955] Q.P.R. 281 (S.C.).
