Civil Procedure Rules of Nova Scotia  
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Part 6 - Motions

Rule 23 - Chambers Motion

Scope of Rule 23
23.01 (1) This Rule provides for the standard way to make a motion to a judge outside the trial of an action or hearing of an application, judicial review, or appeal.
  (2) A motion in chambers is made on written notice, with affidavits, in a courtroom, and on record.
  (3) A party may make a motion in chambers, in accordance with this Rule.
Starting a motion in chambers
23.02   A party may start a motion in chambers by filing a notice of motion and a draft order, or an ex parte motion and a draft order.
Motion on notice
23.03 (1) A notice of motion must contain the standard heading, be entitled “Notice of Motion”, be dated and signed, and include all of the following:
the motion, including the name of the party who makes the motion and a concise statement describing the order the party seeks;
the time and date when, and the place where, the motion is to be heard;
whether the motion will require a half-hour or less in chambers, more than a half-hour but less than a half-day, or more than a half-day;
references to applicable legislation, Rules, or points of law;
a reference to each affidavit relied on by the party, identified by the name of the affiant and either the date it was sworn or a brief description of the contents;
a statement that the other party may file an affidavit or a brief, and attend the hearing of the motion and make submissions;
a warning that an order may be made although the party does not attend.
  (2) The reference in the notice of motion to an affidavit may be a reference to an affidavit already filed, an affidavit filed with the notice, or an affidavit to be filed later but before the deadline in Rule 23.11.
  (3) The notice of motion may be in Form 23.03.
Motion set by party (½ hour or less)
23.04 (1) A party who makes a motion, except a motion in the Family Division, and who is satisfied on all of the following, may select the time, date, and place of the motion:
the motion will take less than a half-hour in chambers;
no party will require cross-examination in court;
no party will require cross-examination out of court, or the parties have reached an agreement under which cross-examination will be completed in sufficient time for a transcript to be filed no less than two days before the date of the hearing.
  (2) The party must select a time, date, and place when and where the court regularly holds chambers and the time when chambers opens.
  (3) The party must take reasonable steps to ascertain and, if possible, meet the convenience of each party who wishes to participate in the hearing of the motion.
Motion set by court (½ day or less) (more than ½ day)
23.05 (1) A party may request the prothonotary provide a time, date, and place for the hearing of any of the following kinds of motion in chambers:
a motion in the Family Division;
a motion at which a party cross-examines a witness;
a motion that requires more than a half-hour in chambers.
  (2) The party must provide the information needed to assess the amount of time required, select an appropriate place, assess whether the place proposed by the moving party is reasonable, and ascertain when counsel for the other parties, or a party who acts on their own, will be available.
  (3) The court must, as soon as possible, provide to the party making the request a written notice of a time and date for the hearing that is more than the following number of days after the day the notice of motion is expected to be delivered to each other party:
ten days, if the motion requires less than a half-day;
fifteen days, if the motion requires more than a half-day.
  (4) A judge may convene a conference to assign a time, date, and place and give other directions, if the prothonotary or the judge is satisfied that the motion is too complicated for a date to be assigned without a conference.
  (5) The judge may give any directions at the date assignment conference, including directions on any of the following subjects:
the deadlines for filing the notice of motion, affidavits, and briefs;
the place for the motion;
necessary disclosure of documents;
cross-examination in or outside chambers;
limits on the duration of, or subjects for, cross-examination.
File notice of motion when date obtained
23.06 (1) A party who obtains a date for a motion in chambers must file the notice of motion no more than one day after the court delivers to the party a written notice of the date.
  (2) The prothonotary may cancel the date if a notice of motion is not filed after one day.
Disagreements about time or place
23.07   A party who disagrees with the estimate of time required, or the place selected, for a motion in chambers may make a motion for a new date or place.
Manner of providing evidence
23.08 (1) A party may provide evidence for a chambers motion by filing any of the following documents:
an affidavit that conforms with Rule 39 - Affidavit;
admissible excerpts from a discovery transcript in the proceeding under Rules 18.20 and 18.21, of Rule 18 - Discovery;
admissible excerpts from a transcript of commission evidence taken in the proceeding, under Rule 56 - Commission Evidence and Testimony by Video Conference;
an agreed statement of facts signed by all parties to the motion.
  (2) An affidavit may prove a written statement admissible under legislation, a Rule, or the common law.
  (3) A party may provide evidence by cross-examination as provided in Rule 23.09 and by re-direct examination.
  (4) A person may give evidence in chambers by direct examination, followed by crossexamination, only if a judge is satisfied that it is impossible or undesirable for a party to present the evidence by affidavit.
23.09 (1) A party may cross-examine an affiant on an affidavit filed by another party.
  (2) A judge may restrict cross-examination in any of the following ways:
refuse cross-examination to a party who has the same interest in the motion as the party who files the affidavit;
limit the time for, or subjects of, cross-examination before it takes place;
impose a time limit before, or during, cross-examination.
  (3) A party who intends to cross-examine an affiant must immediately notify each other party in writing and either the judge who is to hear the motion or, if no judge is assigned, the prothonotary.
  (4) The witness who provides an affidavit on which cross-examination is required must be cross-examined and examined in re-direct in chambers, unless the parties agree or a judge orders otherwise.
  (5) On cross-examination out of court, the witness must be sworn, the crossexamination must be recorded by a court reporter, and a transcript certified by the reporter must be obtained.
  (6) A party who files the affidavit of a witness cross-examined out of court must file a transcript of the cross-examination.
  (7) A 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.
  (8) A judge who hears a motion in which a witness is cross-examined and determines the cross-examination was unnecessary may order the party who required crossexamination to indemnify another party for the expense of the cross-examination.
23.10   A party moving, or opposing, a motion must deliver a brief to the judge hearing the motion.
Deadlines applicable to chambers motion
23.11 (1) Documents for a motion on notice in chambers must be filed no later than the deadlines in the following chart:
½ Hour or Less
½ Day or Less
More Than ½ Day
notice of motion and draft order 5 days before hearing 10 days before hearing 15 days before hearing
supporting affidavit 5 days before hearing 10 days before hearing 15 days before hearing
supporting brief 5 days before hearing 10 days before hearing 15 days before hearing
response affidavit 2 days before hearing 5 days before hearing 10 days before hearing
response brief 2 days before hearing 5 days before hearing 10 days before hearing
rebuttal affidavit 1 day before hearing 3 days before hearing 5 days before hearing
notice that cross-examination is required reschedule 3 days before hearing, except 1 day for rebuttal affidavit 5 days before hearing, except 3 days for rebuttal affidavit
cross-examination transcript not applicable 3 days before hearing, except one day for cross-examination on rebuttal affidavit 3 days before the hearing.
  (2) A party who certifies on a notice of motion that no party will oppose the motion may file a notice of motion, draft order, supporting affidavit, and supporting brief two days before the motion is to be heard.
No further affidavit
23.12 (1) A party may only file an affidavit after a deadline in Rule 23.11 with the permission of a judge.
  (2) On a motion to permit a late affidavit, the judge must consider all of the following:
the prejudice that would be caused to the party who offers the affidavit, if the motion proceeds without that affidavit;
the prejudice that would be caused to other parties by allowing the affidavit to be filed, including the prejudice caused by an adjournment, if an adjournment would result;
the prejudice caused to the public if motions set by appointment are frequently adjourned when it is too late to make the best use of the time of counsel, the judge or court staff.
  (3) A judge who allows a late affidavit may order the party filing the affidavit to indemnify any other party for expenses resulting from the filing, including expenses resulting from any adjournment.
23.13   The prothonotary may only issue a subpoena for attendance at the hearing of a motion with permission of a judge.
Ex parte motion
23.14 (1) An ex parte motion must contain all of the following:
everything required by Rule 23.03(1) in a notice of motion, except the title of the document is “Ex Parte Motion” and Rules 23.03(1)(f) and (g) do not apply;
a statement explaining why it is appropriate for the judge to grant the order without notice to another person, if the motion is made in a proceeding other than an ex parte application.
  (2) The ex parte motion may be in Form 23.14.
  (3) An ex parte motion, draft order, affidavit, and brief must be filed no later than five days before the motion is to be heard.
Attendance in chambers
23.15 (1) A party may attend chambers in person, personally by counsel, or, in the case of a corporation, personally by agent.
  (2) A chambers judge may permit a party, counsel, or a corporation’s agent to attend chambers by audiovisual conference, if the judge is satisfied on both of the following:
the party, counsel, or agent lives or has a place of business more than fifty kilometers from the courthouse;
the chambers courtroom has been equipped with an audiovisual system of sufficient quality that the person is as good as physically present in chambers.
  (3) The chambers judge may permit a party, counsel, or a corporation’s agent to attend chambers by teleconference only if the attendance is necessary and there is no other way the party, counsel, or agent can attend chambers.