Duhaime's Law Dictionary


Perpetuating Testimony Definition:

A mechanism for preserving testimony prior to litigation.

Related Terms: Deponent

The recording of evidence when it is feared that the person with that evidence may soon die or disappear and that this person's evidence, if recorded, could then be used in the future to prevent a possible injustice or to support a future claim related to property.

For example, witnesses who are in advanced age or poor health or a potential deponent's plans to leave the country for a long period of time.

Two examples of Rules of Court in regards to perpetuating testimony:

"A person, who desires to perpetuate the testimony of himself, herself or any other person regarding any cause of action within the jurisdiction of the Court, may apply to the Court on an originating application in an intended proceeding to perpetuate any testimony that may be material to establish or defend the cause of action...

"Any deposition taken to perpetuate testimony may be used in any subsequent proceeding involving the same subject matter."1

At §362 of the Rules of the Supreme Court of the Northwest Territories:

"A person who, under the circumstances alleged by the person to exist, would become entitled on the happening of a future event to an estate or interest in property, the right or claim to which cannot be brought to trial or hearing before the happening of the event, may apply by originating notice for an order to perpetuate any testimony that may be required to establish the right or claim, by examination (on oath before trial before a court reporter or any other person the Court may direct, and the transcript of evidence may be tendered as evidence at the trial)."

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