In Excalibre Oil Tools Ltd. v. Advantage Products Inc., API sought an order pursuant to Rule 289 of the Federal Courts Rules ordering that Excalibre include, as part of their read-ins, additional portions of the transcripts from the examination for discovery of API on the basis that these qualifying read-ins provide clarity, context and value to the Court.
Rule 288 of the Federal Courts Rules permits a party to introduce as its own evidence at trial any part of its examination for discovery. Rule 289 allows the Court to order that any other part of the examination for discovery that the Court considers is so related that it ought not to be omitted to be introduced into evidence. Justice Manson reviewed the jurisprudence and stated that the appropriate test for allowing qualifying read-ins is whether the qualifying read-ins provide context and are reasonably connected to portions of an examination already put into evidence. In assessing whether additional read-ins are “reasonably connected” the Court may consider:
- continuity of thought or subject matter;
- the purpose of introducing the evidence in the first instance, and
- fairness in these sense that the evidence should, so far as possible, represent the complete answer of the witness on the subject-matter of the inquiry so far as the witness has expressed it in the answers he has given on his examination for discovery.
In applying these principles Justice Manson allowed qualifying read-ins that were connected thoughts providing clarity and context and rejected qualifying read-ins that were distinct questions that did not clarify or add context.
A copy of Justice Manson’s Order and Reasons can be found here.