PART 9Examinations Before the Hearing (continued)
Oral Examinations (continued)
Marginal note:Production of documents
68 At the examination, the party whose witness is being examined must produce for inspection all documents that are relevant to the examination and which have been ordered to be disclosed under Part 8.
69 (1) A party who objects to a question that is asked in an examination must briefly state the grounds for the objection for the record.
(2) The witness may answer a question for which an objection is made subject to the right to having the propriety of the question determined, by application to the Tribunal, before the answer is used at the hearing.
Marginal note:Limiting an examination
70 On the application of a party, the Tribunal may limit an examination that it considers to be oppressive, vexatious, repetitive or otherwise unnecessary.
Marginal note:Application for directions
71 (1) A party may suspend an examination and make an application for directions if they believe that their witness is being subjected to an excessive number of questions or to improper questions, or that the examination is being conducted in bad faith or in an abusive manner.
Marginal note:Application for directions
(2) The examining party may suspend the examination and make an application for directions if
(a) they believe that the answers being provided by the witness are evasive; or
(b) documents have not been produced under Rule 68.
Marginal note:Costs of examination
72 The examining party must pay the following costs:
(a) all fees and disbursements related to the recording of the examination;
(b) if an interpreter was required, the fees and disbursements of the interpreter; and
(c) the reasonable travel expenses incurred by the witness.
Marginal note:Written examinations
73 If an examination is to be conducted in writing, the examining party must serve the party whose witness is being examined with a list of concise, separately numbered questions for the witness to answer.
Marginal note:Timing and format for answers
74 The witness must, within 30 days after the day on which the questions are served, serve each party with an affidavit setting out their answers to the questions.
75 If a party objects to a question that is posed in a written examination, the examining party may make an application to compel the witness to answer the question.
76 On the application of a party, the Tribunal may award costs against any person or party whose conduct necessitated the making of an application under Rule 70 or subrule 71(1) or who unnecessarily suspended an examination under subrule 71(2).
77 If a person fails to attend an examination or refuses to take an oath, answer a proper question, produce documents under Rule 68 or to comply with an order of the Tribunal, the Tribunal may, on the application of a party,
(a) order the person to attend or re-attend the examination at their own expense;
(b) order the person to answer a question for which an improper objection was made and any proper question arising from that answer;
(c) strike all or part of the person’s evidence, including any affidavit made by that person; or
(d) order the party on whose behalf the person is being examined to pay the costs of the examination.
Evidence Taken Before the Hearing
Marginal note:Witness unavailable
78 With leave of the Tribunal, a party may introduce all or part of an examination for discovery of a person as evidence at the hearing if
(a) the person has died;
(b) the person is unable to testify at the hearing because they are ill or infirm; or
(c) the person cannot be compelled to attend the hearing.
Marginal note:Introduction of evidence
79 A party may introduce as its own evidence at the hearing any part of its examination for discovery of a person, whether or not that person has already testified.
Marginal note:Order to introduce
80 If a party only introduces part of the examination for discovery, the Tribunal may order the party to introduce any other part of that examination that the Tribunal considers relevant.
Marginal note:Use for impeachment
81 A party may use any part of its examination for discovery of a person as evidence to impeach the credibility of that person as a witness at the hearing. However, the party must first ask the person the questions posed to them in that part of the examination.
Evidence Taken for Use at Hearing
Marginal note:Entering of evidence
82 Evidence taken in an examination referred to in paragraph 60(1)(c) may be entered into evidence by any party at the hearing.
Oral History Evidence
83 A party that intends to enter oral history evidence at the hearing must provide every other party with written notice of that intention at least 90 days before the day on which the hearing begins.
Marginal note:Disclosure order
84 The Tribunal may order a party who intends to enter oral history evidence to make pre-hearing disclosure of that evidence to every other party if it is necessary to ensure a just and expeditious hearing.
Marginal note:Expert report
85 A party that intends to have an expert witness give evidence at the hearing must, at least 120 days before the day on which the hearing begins, serve every other party with a copy of the expert’s report.
Marginal note:Responding expert report
86 A party that intends to have an expert witness give evidence in response to an expert report served under Rule 85 must, at least 60 days before the day on which the hearing begins, serve every other party with a copy of their expert’s report.
Marginal note:Supplementary expert report
87 In reply to any report served on them under Rule 86, the party who filed the report under Rule 85 may, at least 30 days before the day on which the hearing begins, serve every other party with a copy of a supplementary expert report prepared by their expert.
Marginal note:Content of expert report
88 An expert report referred to in this Part must be signed and dated by the expert and include the following information and documents:
(a) the name, business address and email address of the expert;
(b) the expert’s curriculum vitae and a statement indicating how their training, education and experience qualify them to produce the report;
(c) any matters addressed in the report that fall outside the expert’s area of expertise;
(d) an account of the nature of the request to prepare the report and of any directions the expert has received for its preparation;
(e) a summary of the opinions expressed in the report;
(f) the facts and assumptions on which the expert’s opinions are based;
(g) any caveats or qualifications that are necessary to render the report complete and accurate;
(h) identification of any literature or other materials that the expert relied on in support of the opinions expressed in the report; and
(i) if the report is prepared in response or in reply to another expert’s report, identification of the points of agreement and disagreement with that other report.
89 (1) The Tribunal may appoint an independent expert to inquire into and report on any question of fact or opinion that is relevant to an issue in relation to the specific claim.
Marginal note:Appointment order
(2) The order appointing the expert must contain the following information:
(a) the expert’s name and qualifications;
(b) the directions given to the expert regarding the preparation of the report;
(c) the questions posed to the expert;
(d) the date on which the expert’s report is to be provided to the Tribunal;
(e) the nature and extent of the expert’s participation in the proceedings; and
(f) the remuneration to be paid to the expert.
Marginal note:Service and filing
90 The expert’s report must be filed and the registrar must serve a copy of the report on each party.
91 Within 14 days after the day on which they are served with the expert’s report, a party may make submissions to the Tribunal with respect to the admissibility of the report.
Marginal note:Responding expert report
92 Within 60 days after the day on which they are served with a report under Rule 90, a party that intends to have an expert give evidence in response to that report must file a responding expert report and serve a copy of it on every party.
Admission into Evidence
Marginal note:Expert’s testimony
93 (1) A party who wishes to enter an expert’s report into evidence at the hearing must call the expert as a witness unless the expert was examined before the hearing under Part 9.
(2) The expert’s testimony cannot consist of reading his or her report into evidence; however, the expert may provide a concise summary of the report’s key points.
94 An affidavit must be drawn in the first person and be sworn to be true by the affiant.
95 The person before whom the affidavit is sworn must certify, on the affidavit, that the affidavit was read to, and apparently understood by, the affiant.
96 (1) If an affidavit is written in a language that is not understood by the affiant, the affidavit must be translated orally into the affiant’s language by an independent and competent person who will accurately translate the content of the affidavit.
Marginal note:Translator’s oath
(2) Before providing services, the translator must take an oath that they will accurately translate the content of the affidavit.
97 Except for evidence relating to oral history, the evidence in an affidavit must be confined to facts that are within the affiant’s personal knowledge.
98 Each exhibit referred to in an affidavit must be identified by an endorsement on the exhibit, or on a certificate that is attached to the exhibit, that is signed by the person before whom the affidavit is sworn.
99 A party who cross-examines an affiant concerning their affidavit must order and pay for a transcript of that cross-examination and must provide a copy of the transcript to every other party.
Marginal note:Under oath
100 Each witness called to testify at the hearing must give their testimony under oath.
Marginal note:Transmission to registrar
101 If a party enters a document as evidence at the hearing and that document can be converted into PDF (Portable Document Format) or any other electronic format that allows the document to be converted for printing on letter size paper, the party must transmit the document to the registrar in that format.
PART 11Summoning of Witnesses
Marginal note:Issuance of subpoena
102 A party may make an ex parte application to the Tribunal for the issuance of a subpoena for the attendance of a witness or for the production of documents at the hearing.
Marginal note:Application to set aside
103 A person who is subject to a subpoena may, under Part 4, make an application to have it set aside.
PART 12Hearing Procedure
Marginal note:Order of presentation
104 The order of presentation at the hearing is the following:
(a) the claimant must make an opening address and then enter evidence;
(b) after the claimant’s evidence is concluded, the Crown must make an opening address and then enter its evidence; and
(c) after the Crown’s evidence is concluded, the claimant may enter evidence in reply.
105 All exhibits entered in evidence must be numbered and marked.
Marginal note:Order of argument
106 (1) After the parties have been given an opportunity to put in their respective cases, they must be heard in argument in the same order as that in which they entered evidence.
(2) A party may reply to the arguments of an adverse party and, if the reply raises a new point of law, the adverse party may answer on that point.
PART 13Offers to Settle
107 A party may make an offer to settle to another party at any time.
108 An offer to settle must be made in writing and set out
(a) the amount of compensation offered, if any;
(b) the period of time during which the offer will remain open for acceptance; and
(c) any conditions that apply to acceptance of the offer.
Marginal note:Disclosure to Tribunal
109 The fact that an offer to settle has been made, and any details of the offer, can only be revealed to the Tribunal member presiding at the hearing
(a) with the written consent of the parties to the offer; or
(b) during an application for costs.
Marginal note:Costs — applications
110 (1) After the hearing of an application, the Tribunal may award costs in relation to that application.
Marginal note:Costs — proceedings
(2) After the hearing of the specific claim, the Tribunal may award costs in relation to the proceedings.
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