7. Discoveries and Examination of Witnesses Abroad

All discoveries in Quebec are contemplated at Articles 397 and 398 of the CCP. Article 397 provides for the possibility for a defendant to examine a plaintiff, his representative, agent or employee prior to the filing of his defence, whereas Article 398 provides for the examination out of court after defence of any party. Oral discoveries are conducted under oath before a court stenographer and each party may ask relevant questions to every opposing party. Usually a party may only examine one representative of an opposing party, but an examination of another representative may be allowed if the first representative was not aware of all the relevant facts pertaining to the dispute.

In Quebec, objections are made during the examination and are usually adjudicated by a judge in chambers after the examination has been completed. If an objection has been dismissed, then the examination may be resumed or the answer to the question for which there was an objection can be given in writing.

Finally, a party who is examined may give information and/or documents by an undertaking to be provided at a later date, when such information and/or documents are not available at the time of the examination.

Article 426 and following of the CCP provide for the examination of witnesses abroad by Rogatory Commission. More specifically, the court may, on Motion, appoint a commissioner to receive the testimony of any person who resides outside Quebec or in a place too far distanced from the place where the case is pending. The Motion for a Rogatory Commission must be served on all the parties and, except under particular circumstances left to the discretion of the court, must be presented within 15 days after the close of written proceedings.

The Motion must contain the names of the proposed commissioner and of the persons to be examined.

The judgment which appoints the commissioner identifies the witnesses to be examined and the manner in which they will be sworn, gives the instructions necessary to guide the commissioner in the carrying out of his duties and fixes the time within which the commissioner is to be returned.

Any party, if it sees fit to do so, may, after notice to the other parties, have interrogatories and cross-interrogatories admitted by the court and attached to the commission. In any event, whether or not there are interrogatories beforehand, the commissioner may put, and must allow the parties to put, any questions relevant to the case and he shall reserve any objections made by the parties to the evidence. The depositions are recorded in writing and signed by the witness and the commissioner, unless they are taken by a duly sworn stenographer.

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