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Federal Courts Rules (SOR/98-106)

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Regulations are current to 2021-06-28 and last amended on 2021-06-17. Previous Versions

PART 4Actions (continued)

Pre-Trial (continued)

Pre-trial Conferences (continued)

Marginal note:Pre-trial judge not to preside at trial

 A judge or prothonotary who conducts a pre-trial conference in an action shall not preside at the trial of the action unless all parties consent.

Marginal note:No disclosure to the Court

 No communication shall be made to a judge or prothonotary presiding at a trial or hearing, or on a motion or reference in an action, with respect to any statement made at a pre-trial conference, except as may be permitted in an order made at the conclusion of the pre-trial conference or as consented to by the parties.

Trial Record

Marginal note:Trial record

 The plaintiff, or any other party so directed by the Court at a pre-trial conference, shall serve and file a trial record not later than 40 days before the date fixed for trial.

Marginal note:Content of trial record

 A trial record shall contain the pleadings, any particulars, all orders and directions respecting the trial and any other filed document that is necessary for the conduct of the trial.

Trial Management Conference

Marginal note:Scope of trial management conference

 Notwithstanding rule 266, a judge or prothonotary before whom an action has been set down for trial may, without being disqualified from presiding at the trial, hold a conference, either before or during the trial, to consider any matter that may assist in the just and timely disposition of the action.

Taking of Trial Evidence out of Court

Marginal note:Evidence taken out of court

  •  (1) On motion, the Court may order the examination for trial of a person out of court.

  • Marginal note:Considerations

    (2) In making an order under subsection (1), the Court may consider

    • (a) the expected absence of the person at the time of trial;

    • (b) the age or any infirmity of the person;

    • (c) the distance the person resides from the place of trial; and

    • (d) the expense of having the person attend at trial.

  • Marginal note:Directions regarding taking evidence before trial

    (3) In an order under subsection (1), or on the subsequent motion of a party, the Court may give directions regarding the time, place, manner and costs of the examination, notice to be given to the person being examined and to other parties, the attendance of witnesses and the production of requested documents or material.

  • Marginal note:Further examination

    (4) On motion, the Court may order the further examination, before the Court or before a person designated by the Court, of any witness examined under subsection (1), and if such an examination is not conducted, the Court may refuse to admit the evidence of that witness.

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
 
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