By Brett Harrison and Richard McCluskey1
McMillan LLP
McMillan LLP
With cross-border litigation on the rise, US counsel are increasingly finding themselves both managing Canadian litigation and requiring the examination of witnesses located north of the border for use as evidence in US trials. As such, US counsel may find themselves participating in Canadian depositions, the specific practices and procedures of which are foreign to them. However, it is important that US counsel understand the differences between oral discovery in the US and Canada for the following three reasons:
- In the context of managing Canadian litigation, a solid understanding of both the benefits and burdens that accompany oral discovery in Canada will assist US counsel in effectively supervising their Canadian counterparts. This is compounded in circumstances in which a US counsel is tasked with managing parallel actions on both sides of the border.
- Further, where a client has a choice of jurisdictions in which to litigate, the significant differences that exist between depositions in Canada and the US may play an important role when deciding in which country to pursue a claim.
- Finally, US counsel may seek evidence from Canadian witnesses via letters rogatory for use in US trials. However, many US lawyers may be surprised to learn that it is possible to conduct these examinations of Canadian deponents pursuant to the rules of either jurisdiction. It is important to understand the differences between these rules when deciding which procedures should be used to examine Canadian witnesses to determine whether there is a strategic advantage to be gained by applying one set of rules over another.
THERE IS SIGNIFICANTLY LESS DISCOVERY2
As a starting point, there is significantly less discovery in Canada as compared with the US. US counsel are often surprised by the restrictions placed on discovery, both in terms of (a) the number of witnesses deposed, and (b) the types of information that is discoverable. Accordingly, the volume of information exchanged between Canadian litigants is often less, and the number of deponents examined is often fewer, than what would be expected in US actions. These limitations may pose challenges for US counsel accustomed to broader discovery rights, but can be advantageous to defendants who are often protected from fishing expeditions.
Rule 1.04 of the Ontario Rules codifies the general principle of proportionality in Ontario actions: “the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.” This rule has been used by parties to further restrict discovery based not only on the importance and complexity of the proceeding, but the cost involved in providing the documents or information sought. It should also be noted that Ontario is a loser-pays jurisdiction and the court will typically award costs against an unsuccessful party.
NARROWER SCOPE OF DOCUMENTARY PRODUCTION
Prior to oral discovery, every party to an Ontario proceeding has a positive obligation to disclose (and make available on request) every document that is “relevant to any matter in issue in an action” that is or has been in its power, possession or control. These documents are listed in an affidavit sworn by the party's representative and must be disclosed whether they support or damage the disclosing party's case. Unlike in US proceedings, the parties do not exchange initial disclosures followed by requests for production. Instead, these steps are combined into a single disclosure in Ontario. In the event one party is of the view that the other has failed to disclose all relevant documents, or if a dispute arises as to the relevancy of a document, a motion before the court may be required to compel the production of additional documents.
In both US and Ontario actions, all “relevant” information is discoverable. However, the test for determining relevancy has been framed differently on either side of the border. In Ontario, information sought to be discovered must be actually relevant to the matters in issue in the action, as determined by reference to the pleadings. In the US, information is considered relevant, and therefore discoverable, as long as it is reasonably calculated to lead to the discovery of admissible evidence. This is broader than the definition of relevancy used in Ontario.
THERE ARE NO WRITTEN INTERROGATORIES
In a significant difference between the jurisdictions, Ontario does not have a process for written interrogatories akin to US Federal Rule 33. While an Ontario litigant may elect to conduct its discovery of the opposing party in writing by serving a list of written questions, this comes entirely at the expense oral examinations. Further, it is only available of one deponent, as opposed to the 25 written interrogatories permitted in the US. While an Ontario court may grant leave allowing for a combination of written and oral discovery of a witness (or multiple witnesses), this is rare and not standard practice.
While Ontario defendants can request that a plaintiff provide further details in support of its claim prior to defending the action and can request copies of all documents referred to in the claim, these are limited discovery tools that do not match the breadth of discovery permitted by written interrogatories under the US Federal Rules.
THE “ONE DEPONENT” PER PARTY RULE
In another significant restriction on discovery in Ontario, a party is only entitled to examine a single representative – either a current officer, director or employee – from an opposing corporate party. This is in significant contrast to the experience of US counsel, who may be accustomed to deposing any number of individuals with knowledge of the matters in issue.
In practical terms, the examining party will request, or the corporate party will nominate, one individual who will be responsible for answering questions on behalf of the organization as a whole. In Ontario, a party has a relatively unfettered right to select the corporate representative it wishes to examine. In the event there is a dispute over who would make an appropriate discovery witness, the parties may appear before the court to settle the issue. Leave of court (or consent of the parties) is also required before any additional corporate representatives can be examined.
In addition to being a significant departure from US practice, the “one deponent” rule has strategic benefit to US counsel defending a corporate defendant in Canada. The “one deponent” rule provides the corporation with greater control over the flow of information than would be expected in the US where a plaintiff is entitled to examine any number of past and present corporate employees.
A deponent in Ontario must answer, to the best of his or her knowledge, information and belief, any question relevant to any matter in issue in the action. Again, as is the case with documentary discovery, relevance is interpreted strictly and in relation to the pleadings before the court. As a corporate deponent is likely to be the only individual examined on behalf of the company, he or she has a duty to become informed on the matters in issue in advance of the examination. This is often accomplished by conferring with other employees who possess relevant information and reviewing the company's documentary productions.
Where the answer to a question is not within the personal knowledge of the deponent selected, he or she has an obligation to make inquiries of others within the company and subsequently provide an answer, typically in writing. While the opposing party can insist upon a further oral examination of the deponent on matters arising out of the written answers, this is not common practice.
A corporate deponent will typically provide one of the following four answers in responding to questions: (a) the witness will answer the question on the basis of his or her knowledge, information and belief; (b) the witness will undertake to answer the question at a later time, after conferring with others or reviewing relevant documents; (c) the witness will take the question “under advisement,” as described below; or (d) the witness will refuse to answer the question.
OBLIGATION OF DEPONENT TO UNDERTAKE TO MAKE INQUIRES AND RIGHT TO REFUSE TO ANSWER QUESTIONS
As outlined above, where a corporate witness does not know the answer to a question posed during an examination, he or she can undertake to make reasonable inquiries or review certain records and provide the answer on a later date. Opposing counsel will also commonly make requests for specific documents that were not included in a party's productions, which a witness may undertake to locate and produce. These undertakings are usually agreed upon by counsel (as opposed to the witness), to ensure the request is relevant and the scope is proportionate to the litigation.
Pursuant to the Ontario Rules of Civil Procedure, answers to undertakings must be provided within 60 days of the examination, failing which they are deemed as refusals. In practice, counsel often agree to a different timeline with respect to production of responses in order to accommodate the work required to compile the necessary answers and documents. In complex multi-party litigation, a corporate witness may provide a significant number of undertakings, possibly into the hundreds.
As a discovery tool, the significance of the examining party's right to obtain undertakings cannot be overemphasized. All relevant, proportionate and non-privileged questions and requests put to the corporate witness must be answered, whether or not it is within the witness' personal knowledge. The right to obtain undertakings is a fundamental difference between Canadian and US discovery practice, and is a key consideration for US counsel to keep in mind when considering whether to examine a witnesses in Ontario pursuant to local rules.
In Ontario, a witness can also take a question “under advisement” or can refuse to answer the question entirely on certain grounds. When a witness takes a question under advisement, the witness reserves his or her position on the question until a later date. That is, the witness can subsequently choose to answer the question or may continue to refuse it. Under advisements are often provided when counsel needs to consider the request further – possibly to consider relevancy or privilege – before agreeing to provide the requested information or documents. Under advisements ultimately become deemed refusals if they are not answered, and are sometimes viewed as a polite way of refusing a question.
A witness may also refuse to answer a question entirely, as opposed to answering under objection. Questions are commonly refused if a question calls for irrelevant or privileged information or if the scope of the request is disproportionate to quantum at issue in the litigation. Unlike the US, a party can refuse to answer questions even where those questions do not concern privileged matters. After the examination, the parties may negotiate the refused questions and the witness may ultimately agree to provide a narrower response. In the event the refusals cannot be negotiated, the examining party may bring a motion before the court to compel responses to questions that were improperly refused. In general, refusals provided during Ontario depositions are less formal than US counsel may expect.
DEPOSITIONS ARE RARELY VIDEOTAPED
US counsel may also be surprised to learn that the videotaping of depositions is not common practice in Ontario. Examinations will be audio recorded in the presence of a court reporter, but videotaping is rare and would need to be negotiated between the parties. If a US counsel is examining a witness in Canada to obtain evidence for use in a US trial, a request to have the examination videotaped should be expressly made in the letters rogatory issued by the US court.
A PARTY IS ONLY ENTITLED TO SEVEN HOURS OF EXAMINATION
While the US Federal Rules and the Ontario Rules of Civil Procedure both impose seven hour time limits on the duration of depositions, the manner in which these limits are imposed is very different.
In the US, the deposition of any given witness may not exceed seven hours, regardless of the number of examining parties. Therefore, if a plaintiff sues multiple defendants, they have a combined total of seven hours of deposition time to divide amongst themselves. Significantly, each individual defendant may get substantially less than seven hours of the plaintiff's time.
In Ontario, each party has a total of seven hours in which to complete its examinations of all other sides, regardless of the number of parties to be examined. Therefore, a plaintiff who sues three defendants may be subject to three individual examinations, each of which may be seven hours long. A defendant may also choose to divide its seven hours between an examination of the plaintiff and examinations of its co-defendants. In practice, the parties will usually come to reasonable agreements on the duration of examinations outside the limits imposed by the rules of practice.
NON-PARTY DISCOVERY IS SIGNIFICANTLY RESTRICTED
Unlike in the US, obtaining documents and examinations of non-parties (such as fact witnesses and additional employees above the selected corporate representative) is highly restricted in Ontario proceedings. Non-parties are not automatically subject to examination before trial, and leave must be sought of the court to obtain their depositions. The party seeking the examination must satisfy the court that: (a) it has been unable to obtain the information sought from other parties; (b) it would be “unfair” to require the party to go to trial without the examination of the non-party; and (c) the examination sought will not unduly delay the trial, cause unreasonable expense for other parties, or result in unfairness to the person to be examined. This test is not easily satisfied and requests for non-party discovery are rarely granted. The lack of non-party discovery is another example of how the scope of discovery in Canada is significantly narrower than in the US.
EXPERT WITNESS ARE NOT DEPOSED PRIOR TO TRIAL
While some provinces permit expert witness depositions with leave of the court, in most Canadian jurisdictions the prohibition on the examination of non-parties extends to the examination of expert witnesses. Accordingly, parties are not provided an opportunity to depose opposing experts in advance of cross-examination at trial. In Ontario, copies of expert reports setting out the substance of the expert testimony to be given at trial must be exchanged 90 days before pre-trial. Further, an opposing expert's findings, opinions and conclusions are discoverable during the discovery phase of litigation. However, neither of these tools provide an adequate substitute for the deposition of expert witnesses commonly conducted in the US.
DEEMED UNDERTAKING OF CONFIDENTIALITY
Confidentiality orders are not common most proceedings as documents and information obtained during the discovery process in Ontario are protected by a “deemed undertaking”, which prevents the others parties from using that information for any purpose beyond the pursuit or defense of the proceeding during which it was obtained. In other words, documents obtained during discovery in one proceeding cannot be disclosed to outside parties or used to bring other claims against third parties in separate lawsuits. That said, once information or documents have been filed in open court, used at trial or otherwise made a matter of public record, the deemed undertaking no longer applies. In the event commercially sensitive information is at risk of being filed in open court and made public, a party may seek a protective order from the court sealing all or part of the court record.
FINAL THOUGHTS
While not intending to provide an exhaustive review of Canadian deposition procedures, the foregoing highlights some of the many differences between US and Canadian practice. In the event a US counsel is faced with deciding whether to proceed with an action in Canada or whether to examine a Canadian witness pursuant to local rules, these comments may assist in making those decisions. It is important to keep in mind that some of the biggest differences – including the limit to one corporate representative and the entitlement to undertakings – may provide strategic opportunities not always available in US litigation.
- The authors would like to thank Rukesh Korde, a partner in the DC office of Covington and Burling LLP, for his input and guidance in the writing of this article.
- As the governing rules of civil procedure vary from province to province in Canada, this article will focus on the differences between the US Federal Rules of Civil Procedure and the Ontario Rules of Civil Procedure. While there are some differences between the governing rules in each of the Canadian provinces, there is much commonality between them, particularly when it comes to the limitations on discovery rights. The only exception to this is the Province of Québec, which is governed by its own Civil Code.
