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Federal Courts Rules (SOR/98-106)

Full Document:  

Regulations are current to 2022-09-11 and last amended on 2022-01-13. Previous Versions

PART 4Actions (continued)

Pre-Trial (continued)

Taking of Trial Evidence out of Court (continued)

Marginal note:Commission for examination outside Canada

  •  (1) Where an examination under rule 271 is to be made outside Canada, the Court may order the issuance of a commission under the seal of the Court, letters rogatory, a letter of request or any other document necessary for the examination in Form 272A, 272B or 272C, as the case may be.

  • Marginal note:Examination outside Canada

    (2) A person authorized under subsection (1) to take the examination of a witness in a jurisdiction outside Canada shall, unless the parties agree otherwise or the Court orders otherwise, take the examination in a manner that is binding on the witness under the law of that jurisdiction.

Marginal note:Use of evidence at trial

 Unless the Court orders otherwise, evidence obtained on an examination under subsection 271(1) or (4) may, without further proof, be used in evidence by any party.

Trial Procedure

General

Marginal note:Order of presentation

  •  (1) Subject to subsection (2), at the trial of an action, unless the Court directs otherwise,

    • (a) the plaintiff shall make an opening address and then adduce evidence;

    • (b) when the plaintiff’s evidence is concluded, the defendant shall make an opening address and then adduce evidence; and

    • (c) when the defendant’s evidence is concluded, the plaintiff may adduce reply evidence.

  • Marginal note:Multiple parties

    (2) Where the Court has made an order permitting two or more plaintiffs to put in separate cases, or where more than one defendant is separately represented, the order of presentation shall be as directed by the Court.

Marginal note:Directions re proof or evidence

 The Court may give directions at trial concerning the method of proving a fact or of adducing evidence.

Marginal note:Exhibits

 All exhibits adduced in evidence shall be marked and numbered.

Marginal note:Inspection by Court

 The Court may, in the presence of solicitors for the parties, inspect any place or thing in respect of which a question may arise at trial.

Marginal note:Order of argument

  •  (1) Unless the Court directs otherwise, the parties shall be heard in argument, after all parties have been given full opportunity to put in their respective cases, in the order in which they adduced evidence.

  • Marginal note:Right of reply

    (2) A party shall have a right of reply to the arguments of adverse parties and, if the party raises a new point of law, an adverse party may answer on that point.

Expert Witnesses

Marginal note:Admissibility of expert’s evidence

 Unless the Court orders otherwise, no expert witness’s evidence is admissible at the trial of an action in respect of any issue unless

  • (a) the issue has been defined by the pleadings or in an order made under rule 265;

  • (b) an affidavit or statement of the expert witness prepared in accordance with rule 52.2 has been served in accordance with subsection 258(1), rule 262 or an order made under rule 265; and

  • (c) the expert witness is available at the trial for cross-examination.

  • SOR/2006-219, s. 6
  • SOR/2010-176, s. 7

Marginal note:Tendering of expert’s evidence at trial

  •  (1) Unless the Court orders otherwise, evidence in chief of an expert witness may be tendered at trial by

    • (a) the witness reading into evidence all or part of an affidavit or statement referred to in paragraph 279(b); and

    • (b) the witness explaining any of the content of an affidavit or statement that has been read into evidence.

  • Marginal note:Other evidence with leave

    (1.1) Despite subsection (1), an expert witness may tender other evidence in chief with leave of the Court.

  • Marginal note:Affidavit taken as read

    (2) With leave of the Court, all or part of an affidavit or statement referred to in paragraph 279(b) may be taken as read into evidence by the witness.

  • Marginal note:Prohibition on pre-trial cross-examination

    (3) Except with leave of the Court, there shall be no cross-examination before trial on an affidavit or statement referred to in paragraph 279(b).

  • SOR/2006-219, s. 7
  • SOR/2010-176, s. 8
  • SOR/2013-18, s. 6

 [Repealed, SOR/2006-219, s. 8]

Evidence at Trial

Marginal note:Examination of witnesses

  •  (1) Unless the Court orders otherwise, witnesses at trial shall be examined orally and in open court.

  • Marginal note:Witnesses to testify under oath

    (2) All witnesses shall testify under oath.

Marginal note:Expert witness panel

 The Court may require that some or all of the expert witnesses testify as a panel after the completion of the testimony of the non-expert witnesses of each party or at any other time that the Court may determine.

  • SOR/2010-176, s. 9

Marginal note:Testimony of panel members

  •  (1) Expert witnesses shall give their views and may be directed to comment on the views of other panel members and to make concluding statements. With leave of the Court, they may pose questions to other panel members.

  • Marginal note:Examination of panel members

    (2) On completion of the testimony of the panel, the panel members may be cross-examined and re-examined in the sequence directed by Court.

  • SOR/2010-176, s. 9

Marginal note:Interpreter

 Rule 93 applies, with such modifications as are necessary, to the use of an interpreter at trial.

Marginal note:Failure to appear

  •  (1) Where on the day of a trial, a party who intends to call witnesses does not produce them or justify their absence, the Court may declare the party’s proof closed.

  • Marginal note:Adjournment

    (2) Subject to subsection (3), where a party demonstrates due diligence and the Court is satisfied that an absent witness is necessary and that the absence of the witness is not due to any contrivance on the party’s part, the Court may adjourn the hearing.

  • Marginal note:Avoidance of adjournment

    (3) An adverse party may require a party seeking an adjournment under subsection (2) to declare, or to produce some other person to declare, under oath the facts that, in the opinion of the party seeking the adjournment, the defaulting witness would have stated, and may avoid the adjournment by admitting the truth of those facts or that the witness would have stated those facts.

Marginal note:Proof by affidavit

 The Court may, at any time, order that any fact be proven by affidavit or that the affidavit of a witness be read at trial.

Marginal note:Order re giving evidence

 The Court may, before trial, order that evidence of any fact be given at the trial in such a manner as may be specified in the order, including

  • (a) by statement on oath of information or belief;

  • (b) by the production of documents or other material;

  • (c) by the production of copies of documents; or

  • (d) in the case of a fact that is or was a matter of common knowledge either generally or in a particular district, by the production of a specified publication containing a statement of that fact.

Demonstrative Evidence

Marginal note:Admissibility

 Except with leave of the Court, no plan, photograph, model or other demonstrative evidence prepared or obtained for use at trial is admissible in evidence at trial, other than in the course of cross-examination, unless at least 30 days before the commencement of the trial all other parties have been given an opportunity to inspect it and consent to its admission without further proof.

Use of Examination for Discovery at Trial

Marginal note:Reading in examination at trial

 A party may introduce as its own evidence at trial any part of its examination for discovery of an adverse party or of a person examined on behalf of an adverse party, whether or not the adverse party or person has already testified.

Marginal note:Qualifying answers

 The Court may order a party who uses part of an examination for discovery as its own evidence to introduce into evidence any other part of the examination for discovery that the Court considers is so related that it ought not to be omitted.

Marginal note:Unavailability of deponent

 The Court may permit a party to use all or part of an examination for discovery of a person, other than a person examined under rule 238, as evidence at trial if

  • (a) the person is unable to testify at the trial because of his or her illness, infirmity or death or because the person cannot be compelled to attend; and

  • (b) his or her evidence cannot be obtained on commission.

Marginal note:Use of examination to impeach credibility at trial

 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 trial only if the party first puts to the person the questions asked in that part of the examination.

Simplified Action

Marginal note:Where mandatory

 Unless the Court orders otherwise, rules 294 to 299 apply to any action in which

  • (a) each claim is exclusively for monetary relief in an amount not exceeding $100,000, exclusive of interest and costs;

  • (b) in respect of an action in rem claiming monetary relief, no amount claimed, exclusive of interest and costs, exceeds $50,000;

  • (c) the parties agree that the action is to be conducted as a simplified action; or

  • (d) on motion, the Court orders that the action be conducted as a simplified action.

Marginal note:Cost consequences of improper avoidance of procedure

 The Court may award costs against any party, including a party who is successful in an action, who it finds has exaggerated a claim, including a counterclaim or third party claim, merely to avoid the operation of rules 292 and 294 to 299.

Marginal note:Style of cause

 Every pleading in a simplified action shall be prefaced by the heading “Simplified Action”.

Marginal note:List of documents

 A party to a simplified action may serve, in lieu of an affidavit of documents, a complete list of all the documents in the party’s possession, power or control that are relevant to a matter in issue in the action.

Marginal note:Limited examination for discovery

 An examination for discovery in a simplified action shall be in writing only, and shall not exceed 50 questions.

Marginal note:Motion for summary judgment or summary trial

 No motion for summary judgment or summary trial may be brought in a simplified action.

  • SOR/2009-331, s. 4

Marginal note:Motions prior to pre-trial conference

  •  (1) Subject to subsections (2) and (3), a motion in a simplified action shall be returnable only at a pre-trial conference conducted in accordance with rules 258 to 267.

  • Marginal note:Exception

    (2) A motion may be brought, within the time set out in rule 204 for the service and filing of a statement of defence,

    • (a) to object to the jurisdiction of the Court; or

    • (b) to strike a statement of claim, on the ground that it discloses no reasonable cause of action.

  • Marginal note:Exception

    (3) A motion may be brought at any time

    • (a) to remove an action from the operation of rules 294 to 299;

    • (b) for the release of arrested property in an action in rem; or

    • (c) for a default judgment.

  • SOR/2002-417, s. 16

Marginal note:Evidence adduced by affidavit

  •  (1) In the trial of a simplified action, unless the Court directs otherwise, the evidence of each party shall be adduced by affidavit, which shall, subject to subsections (1.1) and (1.2), be served and filed

    • (a) in the case of evidence of a plaintiff, at least 20 days before the trial; and

    • (b) in the case of evidence of a defendant, at least 10 days before the trial.

  • Marginal note:Admissibility of expert’s evidence

    (1.1) Unless the Court orders otherwise, no evidence in chief of an expert witness is admissible at the trial of an action in respect of any issue unless

    • (a) the issue has been defined by the pleadings or in an order made under rule 265;

    • (b) an affidavit or statement of the expert witness prepared in accordance with rule 52.2 has been served on all other parties at least 60 days before the commencement of the trial; and

    • (c) the expert witness is available at the trial for cross-examination.

  • Marginal note:Admissibility of rebuttal evidence

    (1.2) Except with leave of the Court, no expert witness’s evidence to rebut evidence in an affidavit or statement served under paragraph (1.1)(b) is admissible unless an affidavit or statement of the expert witness prepared in accordance with rule 52.2 has been served on all other parties at least 30 days before the commencement of the trial.

  • Marginal note:Witness to be made available

    (2) Unless all adverse parties agree otherwise, a witness whose affidavit evidence is tendered at trial shall be made available for cross-examination at trial.

  • Marginal note:Reply evidence

    (3) Reply evidence, including that of an expert witness, may be provided orally at trial.

  • SOR/2006-219, s. 9
  • SOR/2010-176, s. 10

 [Repealed, SOR/2007-301, s. 6]

 [Repealed, SOR/2007-301, s. 6]

 
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