Civil Procedure Rules of Nova Scotia  
To conduct a search focused only on the
Civil Procedure Rules, use this search box
   

Part 2 - Civil Proceedings

Rule 5 - Application

Scope of Rule 5
5.01 (1) As provided in these Rules, an application is an original proceeding and a motion is an interlocutory step in a proceeding.
  (2) This Rule provides for an ex parte application, an application in chambers, and an application in court.
  (3) The application in chambers is heard in a short time, and it is scheduled at a time when chambers is regularly held or at an appointed time.
  (4) The application in court is for longer hearings, and it is available, in appropriate circumstances, as a flexible and speedy alternative to an action.
  (5) A person may make an application or respond to an application, in accordance with this Rule, except an application in a family proceeding is made and responded to as provided in Part 13 - Family Proceedings.
       
Ex parte application in chambers
5.02 (1) A person may apply for an ex parte order, if it is appropriate to seek the order without notice to another person.
  (2) The person may apply for an ex parte order in chambers by filing an ex parte application.
  (3) The ex parte application must contain a standard heading written in accordance with Rule 82 - Administration of Civil Proceedings, be entitled “Ex Parte Application”, be dated and signed, and include all of the following:
   
(a)
a description of the order applied for;
   
(b)
a statement explaining why it would be appropriate for the judge to grant the order without notice to other persons;
   
(c)
a concise statement of the grounds for the order, including the material facts the applicant seeks to establish and a reference to legislation relied on by the applicant;
   
(d)
a reference to each affidavit relied on by the applicant, identified by the name of the witness and the date the affidavit is sworn or affirmed;
   
(e)
the time, date, and the place for the application;
   
(f)
if there is only one applicant, a designation of an address for delivery of documents to the applicant, and if there is more than one applicant, a designation of one address for delivery to all applicants or a separate address for each applicant;
   
(g)
an acknowledgement of the effect of delivery to the designated address and a statement that further contact information is available from the prothonotary.
  (4) The ex parte application may be in Form 5.02.
  (5) The applicant must file the ex parte application, and the referenced affidavit, and deliver a brief for the judge hearing the application, at least two days before the day of the hearing of the application.
       
Application in chambers on notice
5.03 (1) A person may apply for an order on notice to another person by filing a notice of application in chambers.
  (2) The notice of application in chambers must contain a standard heading written in accordance with Rule 82 - Administration of Civil Proceedings, be entitled “Notice of Application in Chambers”, be dated and signed, and include all of the following:
   
(a)
notice that the applicant applies to a judge for an order and a description of the order applied for;
   
(b)
a concise statement of the grounds for the order, including the material facts the applicant seeks to establish, and a reference to legislation or points of law relied on by the applicant;
   
(c)
a reference to each affidavit relied on by the applicant and notice that further affidavits may be filed by the applicant before the deadline in this Rule;
   
(d)
notice of the deadlines for the respondent to file a notice of contest and an affidavit, and a statement that filing the notice of contest entitles the respondent to notice of further steps in the application;
   
(e)
notice of the time, date, and place of the hearing;
   
(f)
notice that the judge may proceed in the absence of the respondent if the respondent or counsel does not attend the hearing;
   
(g)
a statement explaining how documents are filed and the requirement for immediate delivery to a party entitled to notice;
   
(h)
if there is only one applicant, a designation of an address for delivery of documents to the applicant and, if there is more than one applicant, a designation of one address for delivery to all applicants or a separate address for each applicant.
  (3) The notice of application may be in Form 5.03.
       
Notice of contest of chambers application
5.04 (1) A respondent may contest an application in chambers by filing a notice of contest.
  (2) The notice of contest must contain the standard heading, be entitled “Notice of Contest (Chambers Application)”, be dated and signed, and include all of the following:
   
(a)
a statement that the application is contested and indicating which of the material facts in the applicant’s grounds are admitted, which are denied, and which are neither admitted nor denied only because the respondent does not have sufficient information to admit them;
   
(b)
a concise statement of further grounds relied on by the respondent, including material facts the respondent seeks to establish, and a reference to legislation relied on by the respondent;
   
(c)
a reference to each affidavit relied on by the respondent, identified by the name of the affiant and the date the affidavit is sworn;
   
(d)
if the notice is for only one respondent, a designation of an address for delivery of documents to the respondent and, if it is for more than one respondent, a designation of one address for delivery to all respondents or a separate address for each respondent;
   
(e)
an acknowledgement of the effect of delivery to the designated address and a statement that further contact information is available from the prothonotary.
  (3) The notice of contest may be in Form 5.04.
       
Chambers application
5.05 (1) A person may make an application in chambers at any time when chambers is regularly held, if the person is satisfied the hearing will take less than a half-hour and cross-examination will not be required.
  (2) A person may make an application in chambers at a time appointed by a judge or the prothonotary, if the person is satisfied that the hearing will take less than a half-day.
  (3) The applicant must take reasonable steps to select a time convenient for each respondent’s counsel and each respondent who acts on their own.
  (4) The applicant must limit a rebuttal affidavit to new points raised by the respondent’s affidavit.
  (5) A party who receives an affidavit and wishes to cross-examine the witness must file a notice to that effect.
  (6) A judge may order that a witness be cross-examined outside the hearing and set deadlines for conducting the cross-examination and filing a transcript.
  (7) A party must deliver a brief for the judge hearing the application, unless the judge permits otherwise.
       
Chambers application deadlines
5.06 (1) The applicant must notify each respondent of the application in chambers in accordance with Rule 31- Notice, no less than ten days before the day of a hearing in chambers that is regularly held or twenty-five days before the day of a hearing at an appointed time and date.
  (2) Documents must be filed by the deadlines in the following table:
   
Document Regular time Appointed time
notice of application 10 days before date of hearing 25 days before date of hearing
applicant’s affidavit 10 days before date of hearing 25 days before date of hearing
notice of contest 5 days after date of notification 10 days after date of notification
respondent’s affidavit 5 days after date of notification 10 days after date of notification
rebuttal affidavit 2 days after day affidavit is delivered 2 days after day affidavit is delivered
notice cross-examination is required 3 days before hearing, except 1 day for rebuttal affidavit 5 days before date of hearing
applicant’s brief 3 days before date of hearing 5 days before date of hearing
respondent’s brief 2 days before date of hearing 3 days before date of hearing
reply brief 1 day before date of hearing 1 day before date of hearing.
       
Application in court
5.07 (1) A person may make an application in court by filing a notice of application in court.
  (2) A person who files a notice of application in court must, in the notice, provide for a motion for directions to be given by a judge, including the appointment of a time and date for the application to be heard.
  (3) The date for hearing the motion for directions must be no more than twenty-five days after the day the notice of application is filed.
  (4) The motion for directions must be supported by an affidavit, which may be an affidavit of counsel, addressing all of the following:
   
(a)
whether there are any persons who are not parties but who may have an interest in the matters raised by the application;
   
(b)
whether the list of possible witnesses in the notice of application is complete;
   
(c)
the extent to which the applicant has disclosed documents and electronic information to the respondents and, if disclosure is not complete, the applicant’s plan for completing disclosure;
   
(d)
whether the applicant anticipates discovering any witness;
   
(e)
if the application will involve a series of hearings, an estimate of the number of hearings and when each could occur;
   
(f)
if the application concerns events that are unfolding, a description of the events and the expected course of the events;
   
(g)
if the application concerns alleged rights that could be eroded over time, an explanation of the rights, how they may be eroded, and the consequences for the applicant;
   
(h)
all information known to the applicant that could significantly affect the estimate of time needed to prepare for the hearing and the length of the hearing itself.
  (5) A notice of application in court must be entitled “Notice of Application in Court” and otherwise include everything required in a notice of application in chambers, with each of the following modifications:
   
(a)
instead of a reference to each affidavit relied on, it must identify the witnesses whose affidavit the applicant intends to file and describe the subjects about which each witness could give evidence;
   
(b)
it must include a notice of a motion for directions and to appoint the time, date, and place for the application to be heard, and a reference to the affidavit filed in support of the motion;
   
(c)
it must notify the respondent of the deadline for the respondent to file a notice of contest and that the judge may proceed with the motion if the respondent, or counsel for the respondent, does not attend the hearing;
   
(d)
the statement about proceeding in the absence of the respondent must refer to attendance at the hearing of the motion for directions.
  (6) The notice of application in court may be in Form 5.07.
       
Notice of contest of application in court
5.08 (1) A respondent who wishes to contest an application in court must file a notice of contest no more than fifteen days after the day the respondent is notified of the application in accordance with Rule 31 - Notice.
  (2) A notice of contest for an application in court must be entitled “Notice of Contest (Application in Court)” and otherwise include everything required in a notice of contest (chambers application), except instead of a reference to an affidavit, it must identify the witnesses whose affidavit the respondent intends to file, identify all other possible witnesses known to the respondent not already identified by the applicant, and describe the subjects about which each identified witness could give evidence.
  (3) The notice of contest of an application in court may be in Form 5.08.
       
Respondent's Claim in Chambers Application
5.09   A respondent to a chambers application who wishes to make a claim against the applicant, another respondent, or a third party may start an independent proceeding.
       
Respondent's Claim in Application in Court
5.10 (1) A respondent who wishes to make a claim against the applicant, or against another respondent, in an application in court must file a notice of the claim no more than fifteen days after the day the respondent is notified of the application in accordance with Rule 31 - Notice.
  (2) The notice of claim by a respondent must contain the standard heading, be entitled "Notice of Respondent's Claim", be dated and signed, and include all of the following:
   
(a)
notice that the respondent applies to a judge for an order against a named party and a description of the order applied for;
   
(b)
a concise statement of the grounds for the order, including the material facts the respondent seeks to establish, and a reference to legislation or points of law relied on by the respondent;
   
(c)
a statement naming the witnesses whose affidavit the respondent intends to file in support of the respondent's claim and describing the subjects about which each witness could give evidence;
   
(d)
a statement that the respondent will seek directions concerning the claim when the applicant's motion for directions is heard;
   
(e)
a statement that the respondent is, or is not, also filing a notice of contest of the application;
   
(f)
if the respondent is not filing a notice of contest, the designation of address and the acknowledgment of the effect of delivery required in a notice of contest.
  (3) A notice of claim by a respondent may be in Form 5.10.
       
Contesting Respondent's Claim
5.11 (1) A party against whom a respondent makes a claim, and who wishes to contest the claim, must file a notice of contest no less than two days before the day of the hearing of the motion for directions.
  (2) The notice of contest must contain the standard heading, be entitled "Notice of Contest of Respondent's Claim", be dated and signed, and include all of the following:
   
(a)
a statement that the respondent's claim is contested and indicating which of the material facts in the notice of respondent's claim are admitted, which are denied, and which are neither admitted or denied only because the respondent does not have sufficient information to admit them;
   
(b)
a concise statement of any further grounds relied on in contest of the respondent's claim;
   
(c)
a statement identifying any further witness from whom the contesting party expects to obtain affidavits;
   
(d)
if the party is a respondent and if the party is not filing a notice of contest of the application, the designation of address and the acknowledgment of the effect of delivery required in a notice of contest of an application.
  (3) A notice of contest of respondent's claim may be in Form 5.11.
       
Claim against non-party
5.12   A respondent in an application in court who wishes to make a claim against a person who is not a party may start an independent proceeding or make a motion at or before the hearing of the motion for directions to join the third party under Rule 35 - Parties.
       
Motion for directions and to appoint time, date, and place
5.13 (1) A motion for directions may be heard in chambers, by appointment, or by conference, as the prothonotary or a judge directs.
  (2) The judge who hears a motion for directions may do any of the following:
   
(a)
permit an amendment to the notice of application or notice of contest;
   
(b)
ascertain whether there are interested persons who are not parties and, if necessary, adjourn the motion until an interested person is made a party;
   
(c)
ascertain the extent to which parties have searched for and made disclosure of documents, electronic information, or other evidence and, if necessary, order disclosure;
   
(d)
order discovery, limit the time for discovery, and direct who may discover whom;
   
(e)
ascertain witnesses from whom each party is likely to produce an affidavit, inquire into any requirement for cross-examination of a likely witness;
   
(f)
order a party to produce an intended affiant as a witness to be crossexamined at the hearing, or out of court with a transcript;
   
(g)
limit the duration or subjects for cross-examination;
   
(h)
determine whether an expert opinion may be admitted and order disclosure;
   
(i)
permit a witness to testify instead of swearing or affirming an affidavit and order disclosure of the witness’ anticipated evidence, such as by ordering delivery of a will say statement, or order discovery of the witness;
   
(j)
ascertain whether it is likely that there will be evidentiary issues the court must determine;
   
(k)
set dates for filing the applicant’s affidavits, the respondent’s affidavits, any applicant’s rebuttal affidavits, the applicant’s brief, the respondent’s brief, and a reply brief;
   
(l)
set the time, date, and place for the hearing of the application;
   
(m)
if the application requires a series of hearings, determine whether the same judge should preside in court over each hearing and either set dates for each hearing or set the date for the first hearing and leave further scheduling to the court;
   
(n)
give any other directions or make any order needed to organize the application.
  (3) A judge may amend or supplement directions.
     
Lack of jurisdiction
5.14 (1) A respondent who maintains that the court does not have jurisdiction over the subject of an application, or over the respondent, may make a motion to dismiss the application for want of jurisdiction.
  (2) A respondent does not submit to the jurisdiction of the court only by moving to dismiss the application for want of jurisdiction.
  (3) A judge who dismisses a motion for an order dismissing an application for want of jurisdiction must set a deadline by which the respondent may file a notice of contest.
       
No supplementary affidavits
5.15 (1) A party to an application may only file an affidavit within the deadlines under this Rule or set by a judge giving directions, unless a judge hearing the application permits an affidavit to be filed later.
  (2) On a motion to allow a later affidavit, the judge must consider all of the following:
   
(a)
the prejudice that would be caused to the party who offers the affidavit, if the application proceeds without that affidavit;
   
(b)
the prejudice that would be caused to other parties by allowing the affidavit to be filed, including the prejudice of an adjournment if that would be a result;
   
(c)
if an adjournment would result, the public interest in making the best use of court facilities, judges' time, and the time of court staff.
  (3) A judge who allows a late affidavit may order the party filing the affidavit to indemnify each other party for expenses resulting from the filing, including expenses resulting from any adjournment.
       
Expense of cross-examination
5.16   The party who files an affidavit must pay the expense of presenting the witness for cross-examination, unless the parties agree, or a judge orders, otherwise.
       
Rules of evidence on an application
5.17   The rules of evidence, including the rules about hearsay, apply on the hearing of an application and to affidavits filed for the hearing except a judge may, in an ex parte application, accept hearsay presented by affidavit prepared in accordance with Rule 39 - Affidavit.
       
Adjournment of application in court
5.18 (1) A judge may adjourn the hearing of an application in court sixty days or more before the application is scheduled to be heard.
  (2) A judge assigned to hear an application in court, or any judge if no judge is assigned or the assigned judge is not available, may adjourn the hearing of the application less than sixty days before the hearing.
  (3) A judge who determines a motion for an adjournment less than sixty days before the date for hearing an application in court must consider each of the following:
   
(a)
the prejudice to the party seeking the adjournment, if the party is required to proceed to the hearing;
   
(b)
the prejudice to other parties, if they lose the hearing dates;
   
(c)
the public interest in making the best use of court facilities, judges' time, and the time of court staff.
       
Directions and indemnity
5.19   A judge who adjourns the hearing of an application in court may give directions for the further conduct of the proceedings and order a party whose conduct, in whole or in part, caused the adjournment to indemnify, in whole or in part, another party for expenses caused by the adjournment.
       
Failure to appear
5.20 (1) If no parties appear at the hearing of an application, or on a motion for directions, the judge may dismiss the application without costs unless the parties provide a joint submission for another disposition and the judge accepts the submission.
  (2) A judge who is satisfied on all of the following may grant an order summarily disposing of an application against a respondent:
   
(a)
the respondent is notified of the application under Rule 31 - Notice;
   
(b)
the respondent either files no notice of contest or fails to appear at the hearing of the application or on the motion for directions;
   
(c)
the applicant discloses to the judge all communications between the applicant and the respondent about the application;
   
(d)
the evidence supports the granting of the order.
       
Failure to comply
5.21   A judge may provide each of the following remedies, if a party causes prejudice to another party by failing to do anything required by a judge or this Rule:
   
(a)
dismiss the application, if the applicant causes the prejudice;
   
(b)
grant the application, if the respondent causes the prejudice;
   
(c)
order the party who causes the prejudice to indemnify another party for expenses caused by the failure;
   
(d)
make any other order to restore the other party to the position the party would have been in had the failure not occurred.
       
Consolidation and severance
5.22   A judge may order two or more applications be heard together, a claim in an application be heard separately from another, or the claim against one respondent be heard separately from another respondent.
       
Disagreements about time and place
5.23 (1) A respondent who disagrees with the estimate of time required for an application in chambers or the time, date, or place selected for an application in chambers, or a motion for directions on an application in court, may make a motion for a new time, date, or place.
  (2) A party to an application in chambers may move to continue the application as an application in court.
       
Dormant applications dismissed after five years
5.24   The prothonotary must make a motion to dismiss an application for which no hearing date is set five years after the day the notice of application is filed.
       

<< GO BACK TO PART 2, RULE 4
ACTION

<< GO TO INDEX OF RULES >>

GO TO PART 2, RULE 6
CHOOSING ACTION
OR APPLICATION >>