Deposition (law) - Other Jurisdictions

Other Jurisdictions

In Canada, the process is nearly identical but is called an examination for discovery. In Australia and England, there is no right of oral examination of opposing parties in civil litigation. The discovery process is usually completed after pleadings and requests for particulars by exchange of affidavits of documents and sometimes written questions and answers (interrogatories). Often affidavits are exchanged before trial, but the first opportunity to question the opposing party in most lawsuits is at trial.

The extraordinary contrast between civil procedure where there are no examinations for discovery, for example in Australia and England, and North American practice can be discerned by reading an extract from the New South Wales Law Reform Commission Report in 1978. The process is described in detail and aimed at an Australian audience. It is clear that the entire process is completely foreign to Australian lawyers as the author witnessed an examination for discovery in Toronto and outlines in intricate detail the rules in Ontario as they were in effect at that time.

The process is considered in Canada to be time consuming and expensive when conducted without limits. As a result, Rule 31.05.1 of the Ontario Rules of Civil Procedure has, since January 1, 2010, limited examinations for discovery to 7 hours per party except with consent of the other parties or the leave of the Court. British Columbia will implement similar reforms on July 1, 2010, although the new Rule 7-2(2) can be read in two ways, it appears to be that each party can examine each other party for a maximum of 7 hours unless the court orders otherwise. The alternative reading is that each party is only to be examined for a maximum of 7 hours.