Can a subpoena duces tecum be issued in an evidential hearing?

Alberta, Canada


The following excerpt is from In the Matter of the International Commercial Arbitration Act, R.S.A. 2000, C. I-5, 2005 ABQB 509 (CanLII):

The Hong Kong High Court reached a similar conclusion in Vibroflotation AG v. Express Builders Co. Ltd., [1994] 3 HKC 263 (H.C.). In that case, the plaintiff had issued a subpoena duces tecum seeking production of certain documents. Kaplan J. considered Article 27 and made the following comments: However, the granting of a subpoena is expressly covered by Article 27 and in my judgment it is perfectly plain and, indeed, it is not argued to the contrary that Article 27 is the governing article in relation to the issue of a subpoena. Provided the court has jurisdiction to grant a subpoena, that is, provided that the domestic law makes provision for the grant of such an order, then the court can make an order if otherwise within the terms of Article 27. ... Although this idea was not new and has been employed on subsequent occasions, it is respectfully submitted that it mistakes the role of the subpoena duces tecum and witness summons. This is not a means of obtaining discovery whether of the existence of the contents of documents in the hands of third parties; after all, subpoena is not to become a “bill of discovery against a witness”. It is merely a means of putting the court in possession of relevant and admissible evidence, and serves, or should serve, no pre-trial function at all. ... It seems clear to me that a subpoena duces tecum can only be applied for in relation to an evidential hearing.

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