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Ontario’s Civil Rules Committee Proposes Significant Amendments To Rules For Oral Examinations Outside Of Court – Employment Litigation/ Tribunals



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Overview of Proposed Amendments to Rule 34

The Ontario Courts’ Civil Rules Committee is considering
significant amendments to Rule 34 of the Rules of Civil
Procedure
, which sets out the procedure for conducting oral
examinations out of court. Many of the amendments aim to better
facilitate the use of remote and virtual examinations, which have
become more common since the onset of the COVID-19 pandemic.

The proposed amendments to Rule 34 involve:

  • Adding a new rule, Rule 34.01.1, to give greater prominence to
    the consent mechanism that already exists under Rule 34.06, whereby
    parties may consent to the time, place, and method of the
    examination, along with what type of notice of examination (if any)
    will be required.
                

  • Amending Rule 34.02 to focus on expectations for how the
    particulars of an examination are to be determined, but also
    extending its application to oral examinations held outside of
    Ontario. 

  • Amending Rule 34.03 [i.e., the requirement for examinations be
    held in the county in which the person being examined (or
    “examinee”) lives] so that it applies to only in-person
    examinations. This amendment would reflect the new reality of
    virtual examinations. 

  • Limiting the application of Rule 34.04 (i.e., attendance
    requirements) to examinees who reside in Ontario. All references to
    examinees outside Ontario would be removed.   

  • Amending Rule 34.05 to extend the period for giving notice of
    the time and place of the examination.1

  • Moving the objection procedure for examinations of Ontario
    residents from Rule 34.02 to a new Rule 34.06. This new rule would
    incorporate objections to the method of
    attendance, thereby carving this issue out of Rule 1.08(8).
    Objections under this new rule are proposed to be dealt with via
    case conference, rather than by motion.
             

  • Transforming Rule 34.07 into the single point of reference for
    arranging examinations of individuals who reside outside of Ontario
    (currently, the relevant procedures are divided between Rules
    34.04(7) and 34.07). The new Rule 34.07 would also distinguish
    between examinations that are outside of Ontario but within Canada,
    and examinations that are outside of Canada.
       

  • Amending Rule 34.08 (i.e., requirements for swearing examinees)
    so that the procedures for oaths and affirmations are based on the
    location of the examiner. This approach is intended to create
    certainty in the case of remote examinations taking place across
    borders.
               

  • Amending Rule 34.10 to address the production of documents for
    remote examinations. If the examination is going to be conducted by
    telephone or video conference, the parties and the examinee may
    make alternative arrangements for the inspection of documents.
                   

  • Amending Rule 34.15 (i.e., sanctions for default or misconduct
    by examinees) to incorporate reference to the method of attendance
    and to recognize that arrangements for examination may be ordered
    by the court.

Proposed Amendments to Remaining Rules and Tariffs

The proposed amendments to Rule 34 will have a necessary effect
on the remaining Rules and Tariffs in the Rules of Civil
Procedure
. Accordingly, the Committee has proposed the
following housekeeping amendments to Rules 1.08, 50.13, and 53.05
and Tariff A in order to support the changes to Rule 34:

  • Amending Rule 1.08 to carve out the procedure for objecting to
    the method of attendance for Rule 34 examinations. As mentioned
    above, these will be moved to the new Rule 34.06.

  • Amending Rule 50.13 (i.e., rules regarding case conferences for
    actions and applications) to recognize that a case conference may
    arise in ways other than by a judge’s direction. This amendment
    will support the case conference mechanism proposed under Rules
    34.06 and 34.07.

  • Amending Rule 53.05 (i.e., rules for compelling attendance of
    witnesses outside of Ontario) so that it applies both inside and
    outside of Canada and to remote appearances or examinations outside
    of Ontario. The Rule would also be amended to address attendance
    money, in order to support Rule 34.04(7), and to distinguish
    between contexts in which the Interprovincial Summonses
    Act 
    (which does not apply to extra-territorial
    witnesses) does and do not apply. 

  • Amending Tariff A to entitle witnesses and/or examinees to an
    attendance allowance regardless of whether they attend an
    examination in person or by other means.

Check the Box

If enacted, the proposed amendments will significantly
streamline the litigation process for civil claims in Ontario. This
may be a welcome change, as the continued use of virtual and remote
examinations will lead to time and cost savings for litigants.

Footnote

1. The Consultation Paper by the Rule 34 Subcommittee
states that the notice period will be extended from two days to
seven days. However, the sample amendment language drafted by the
Subcommittee refers to “fourteen days”.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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