Civil Procedure Rules of Nova Scotia  
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Part 2 - Civil Proceedings

Rule 6 - Choosing Between Action and Application

Choice of proceeding
6.01   A person may choose to start an action or an application as the person is satisfied would be appropriate, unless legislation under which the proceeding is started requires only one kind of proceeding.
       
Converting action or application
6.02 (1) A judge may order that a proceeding started as an action be converted to an application or that a proceeding started as an application be converted to an action.
  (2) A party who proposes that a claim be determined by an action, rather than an application, has the burden of satisfying the judge that an application should be converted to an action, or an action should not be converted to an application.
  (3) An application is presumed to be preferable to an action if either of the following is established:
   
(a)
substantive rights asserted by a party will be eroded in the time it will take to bring an action to trial, the party expeditiously brought a proceeding asserting these rights, and the erosion will be significantly lessened if the dispute is resolved by application;
   
(b)
the court is requested to hold several hearings in one proceeding, such as with some proceedings for corporate reorganization.
  (4) An action is presumed to be preferable to an application, if the presumption in favour of an application does not apply and either of the following is established:
   
(a)
a party has, and wishes to exercise, a right to trial by jury and it is unreasonable to deprive the party of that right;
   
(b)
it is unreasonable to require a party to disclose information about witnesses early in the proceeding, such as information about a witness that may be withheld if the witness is to be called only to impeach credibility.
  (5) On a motion to convert a proceeding, factors in favour of an application include each of the following:
   
(a)
the parties can quickly ascertain who their important witnesses will be;
   
(b)
the parties can be ready to be heard in months, rather than years;
   
(c)
the hearing is of predictable length and content;
   
(d)
the evidence is such that credibility can satisfactorily be assessed by considering the whole of the evidence to be presented at the hearing, including affidavit evidence, permitted direct testimony, and cross-examination.
  (6) The relative cost and delay of an action or an application are circumstances to be considered by a judge who determines a motion to convert a proceeding.
       
Evidence for converting an application
6.03 (1) A party who makes a motion to convert an application to an action must, by affidavit, provide all of the following:
   
(a)
a description of the evidence the party would seek to introduce;
   
(b)
the party’s position on all issues raised by the application;
   
(c)
disclosure of all further issues the party would raise by way of either a notice of contest, if the proceeding remains an application, or a statement of defence, if the proceeding is converted to an action.
  (2) Despite Rule 6.03(1), a party who wishes to withhold disclosure of evidence the party will produce only to impeach a witness need not describe the evidence, or the investigations to be undertaken to obtain the evidence.
       

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APPLICATION

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