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Below is a summary of some of the rules about questioning a party to prepare for trial. The King’s Bench Rules of Court, Part 5, Subdivision 3 contains detailed information about questioning that you should review.
If a party refuses to be questioned under oath or refuses to answer allowed questions their case can be dismissed or, if they are the defendant, their defence can be struck out.
To prepare for trial both parties need to know what the other party has to say about the dispute. Understanding more about the other party’s case can help you to prepare for trial. It can also help you and the other party reach a settlement. Questioning can help you to understand the other party’s case but it is costly. Parties have to pay the fee to have a court reporter present which can cost $1000 a day or more.
Unlike disclosure of documents you can decide whether you want or need to question the other party. The rules of court allow parties to use written questions instead of questioning or in addition to in-person questioning. You can have the other party answer up to 25 written questions in writing. If both parties agree there is no limit to the number of written questions that can be used.
Unless you and the other party agree or the court orders it, you cannot question the other party until you have served your Affidavit of Documents on the other party. If you are starting an action you must wait until the other party serves the Statement of Defence on you or the time for serving it has passed. If you are defending an action you can question the other party once you have filed a Statement of Defence.
You and the other party can set up the questioning by agreeing to a date and time to appear before a court reporter. If the parties do not agree one party can apply for an appointment for questioning. Form 5-23 of the King’s Bench Forms is used for this. Once it is issued by the court it must be served on the other party at least 10 days before the date of questioning. Alternatively the other party can be served with a subpoena. In either case witness fees must be provided to the other party.
The parties and their lawyers (if they have one) meet at a court reporter’s office. There is no judge present. Each side can ask the other side to answer questions under oath about the dispute. The court reporter records the questions and answers.
To prepare for questioning both parties must inform themselves about any relevant documents and bring those with them. The parties must tell the other party the names and addresses of anyone who might reasonably be expected to have relevant information, if asked. If a party objects to answering a question the objection is recorded and the court can decide if the party has to answer.
If a person being questioned does not know the answer right away they can sign an undertaking to provide the information later. If you sign an undertaking you must follow through and provide the answer later. Questioning is a chance for you to learn about the other party’s case and the facts they have to prove it. If a person agrees to a fact during questioning they do not need to be called as a witness at the trial. Their statement can be read from the transcript of the questioning.
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