Civil Procedure Rules of Nova Scotia  
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Part 8 - Counsel, Parties, and Claims

Rule 35 - Parties

Scope of Rule 35
35.01   The following persons may do the following things, in accordance with this Rule:
   
(a)
persons may join together as plaintiffs, applicants, applicants for judicial review, or appellants to start a proceeding;
   
(b)
a person who starts a proceeding may make two or more persons defendants or respondents;
   
(c)
a party may make a motion to be removed, or to remove another party;
   
(d)
a party may make a motion to add another person as a party;
   
(e)
a person may make a motion to be added as a party, including as an intervenor.
       
Joining parties who claim together
35.02 (1) Two or more persons may start an action or application together as plaintiffs or applicants if the parties make claims that give rise to a common question of law or fact or that arise out of a single occurrence, transaction, or series of occurrences or transactions.
  (2) Two or more persons may start a proceeding for judicial review or an appeal together as applicants for judicial review or appellants in one of the following circumstances:
   
(a)
legislation allows them to do so;
   
(b)
each was a party to a process that led to the decision under judicial review or appeal;
   
(c)
the decision under judicial review or appeal affects the interests of each;
   
(d)
a judge permits, in accordance with Rule 35.08.
  (3) Two or more defendants may make a counterclaim, crossclaim, or third party claim together if they make claims that give rise to a common question of law or fact or that arise out of a single occurrence, transaction, or series of occurrences or transactions.
       
Joining parties claimed against in an action or application
35.03 (1) A party who starts an action or application or makes a third party claim may, in one of the following circumstances, name two or more defendants, respondents, or third parties:
   
(a)
there is a common question of fact or law relating a claim against one party to a claim against another;
   
(b)
a claim against one party arises out of the same occurrence, transaction, or series of occurrences or transactions as the claim against another;
   
(c)
there is doubt about which party is liable to the party, whether a remedy should be awarded against one party or several parties, or whether an apportionment should be made.
  (2) Persons may not join together as plaintiffs, applicants, or third party claimants under Rule 35.02, unless they agree on which defendants, respondents, or third parties are to be joined.
  (3) If a defendant or respondent is jointly liable to more than one person and one of those persons refuses to be joined as a plaintiff or applicant, the plaintiff or applicant must join that person as a defendant or respondent although no claim is made against the person.
  (4) A plaintiff, applicant, or defendant making a third party claim must join each of the following persons as an opposite party:
   
(a)
a person who is jointly, but not severally, entitled to relief with the plaintiff, applicant, or defendant making a third party claim;
   
(b)
an assignor of a debt or other chose in action under an assignment that is not absolute, unless notice in writing of the assignment is given to the defendant, respondent, or third party against whom judgment is claimed on the debt or other chose in action;
   
(c)
a person who must be bound by a judgment in the action, application, or third party claim in order for the proceeding to be effectively determined.
       
Parties in a judicial review or an appeal
35.04 (1) A party who starts a proceeding for judicial review or an appeal must, unless a judge orders otherwise, name as respondents the decision-making authority, each person who is a party to the process under review or appeal or the process that led to the decision under review or appeal, and any other person required by legislation to be a respondent.
  (2) An arm of a decision-making authority that is not legally separate from the authority and that prosecuted a complaint, opposed an application, or otherwise sought or opposed a decision by the authority must be included as an applicant for judicial review, an appellant, or a respondent to a judicial review or appeal of the decision.
  (3) The arm must be named in such a way as to distinguish it from the decision-making authority, such as in one of the following ways:
   
(a)
placing the words “Staff of” before the name of the authority;
   
(b)
naming a department, division, or office of the authority;
   
(c)
naming the authority followed by the words “in its capacity as” then describing the function of the arm, such as “prosecutor” or “complainant”.
       
How a party joins further parties
35.05   A party who starts a proceeding may join a further party by amending the originating document, or notice of claim against third party, as provided in Rule 83 - Amendment.
       
Error in joining party
35.06 (1) No proceeding is defeated by reason of a wrong person having been joined as a party or a right person having not been joined, unless an order removing or adding a party would cause serious prejudice that cannot be compensated in costs or an abrogation of an enforceable limitation period.
  (2) A judge may make an order removing or adding a party to prevent the defeat of a proceeding, unless doing so would cause serious prejudice that cannot be compensated in costs or an abrogation of an enforceable limitation period.
  (3) No proceeding is defeated by reason of a party having been wrongly named, unless both of the following apply:
   
(a)
because of the misnaming, the misnamed party was unaware of the proceeding;
   
(b)
the correction will cause serious prejudice that cannot be compensated in costs, and would not have been suffered if the party had been properly named originally.
  (4) A judge may correct the name of a party to prevent the defeat of a proceeding.
  (5) A corrected proceeding continues as if the correction had been made originally.
  (6) A proceeding may be stayed if a judge is satisfied that one of the following deficiencies applies, and the stay ends when the deficiency is rectified:
   
(a)
a party was joined by mistake;
   
(b)
a person who is a necessary party is not a party;
   
(c)
a person was misnamed when the person was joined as a party.
       
Judge removing party
35.07 (1) A judge who is satisfied on any of the following may remove a party:
   
(a)
the party was joined in circumstances that do not conform with Rules 35.02 and 35.03;
   
(b)
a respondent in a judicial review or an appeal should cease to be a party;
   
(c)
a third party proceeding was taken in circumstances outside those in Rule 4.11, of Rule 4 - Action;
   
(d)
the person has ceased to be in circumstances that justify being joined as a party;
   
(e)
an injustice would result if the person continues to be a party.
  (2) Instead of removing the party, the judge may make an order, under Rule 37 - Consolidation and Separation, separating the claim by or against the party.
       
Judge joining party
35.08 (1) A judge may join a person as a party in a proceeding at any stage of the proceeding.
  (2) It is presumed that the effective administration of justice requires each person who has an interest in the issues to be before the court in one hearing.
  (3) The presumption is rebutted if a judge is satisfied on each of the following:
   
(a)
joining a person as a party would cause serious prejudice to that person, or a party;
   
(b)
the prejudice cannot be compensated in costs;
   
(c)
the prejudice would not have been suffered had the party been joined originally, or would have been suffered in any case.
  (4) Despite Rule 35.08(1), a judge may not join a person as a plaintiff, applicant, applicant for judicial review, or appellant, unless the person consents.
  (5) Despite Rule 35.08(1), a judge may not join a party if a limitation period, or an extended limitation period, has expired on the claim that would be advanced by or against the party, the expiry precludes the claim, and the person protected by the limitation period is entitled to enforce it.
  (6) A judge who joins a person as a party to a proceeding may give directions for the party’s participation in the proceeding, including any of the following:
   
(a)
an amendment to the heading;
   
(b)
a process by which the party may give notice of a claim, defence, or ground;
   
(c)
a process by which each other party may respond to the notice;
   
(d)
requirements for the new party to make disclosure and be discovered.
       
Provisions for peripheral defendant or respondent
35.09   A judge may do any of the following for a defendant or respondent who has been joined in a proceeding that includes claims in which the party has no interest:
   
(a)
limit the party’s duties to make disclosure;
   
(b)
limit discovery or provide for separate discovery on a subject of interest to the defendant or respondent;
   
(c)
excuse the party from attending parts of a trial or hearing;
   
(d)
consider the circumstance of the party when awarding or fixing costs.
       
Person intervening
35.10 (1) A person who is not a party to a proceeding and wishes to be joined may move for an order joining the person as an intervenor.
  (2) A judge who is satisfied that the intervention will not unduly delay the proceeding, or cause other serious prejudice to a party, may grant the order in one of the following circumstances:
   
(a)
the person has an interest in the subject of the proceeding;
   
(b)
the person may be adversely affected by the outcome of the proceeding;
   
(c)
the person ought to be bound by a finding on the determination of a question of law or fact in the proceedings;
   
(d)
intervention by the person is in the public interest.
  (3) Unless a judge orders otherwise, an intervenor must comply with all Rules applicable to a defendant, including the Rules in Part 5 - Disclosure and Discovery.
  (4) Unless a judge orders otherwise, an intervenor is entitled to all of the procedural rights of a party.
  (5) The judge may make an order restricting an intervenor’s procedural duties and rights, and generally, regulating the intervenor’s participation in an action or application.
       
Stay when death, bankruptcy, assignment, or mistake occurs
35.11 (1) A proceeding is stayed from when a party dies until an executor, administrator, or other personal representative of the estate of the deceased becomes a party, or a judge appoints a representative under Rule 36 - Representative Party.
  (2) A judge may stay a proceeding started by a party who becomes bankrupt until the trustee in bankruptcy becomes a party or assigns or abandons the claim, (a stay of a proceeding against the bankrupt is provided in the Bankruptcy and Insolvency Act).
  (3) A proceeding in which a plaintiff or applicant assigns the claim to another person is stayed from the date when the defendant is notified of the assignment until the assignee becomes a party.
  (4) A proceeding by or against a person who is not capable of managing their affairs and who does not have a litigation guardian, or a child who does not have a litigation guardian, is stayed from when another party becomes aware the party is a person who is not capable of managing their affairs, or a child, until a litigation guardian’s statement is filed or a litigation guardian is appointed.
  (5) A judge may order a stay of any other proceeding in which a party is mistakenly joined, a necessary party is mistakenly not joined, or a party is misnamed.
       
Subsequent encumbrancer
35.12 (1) A subsequent encumbrancer need not be named as a defendant or respondent in a proceeding for foreclosure, sale, and possession, a proceeding for receivership to enforce a charge, or another proceeding to foreclose the equity of redemption in property.
  (2) A judge may make an order to foreclose interests of a subsequent encumbrancer who is not a party, and the order must contain the following terms unless the judge directs otherwise:
   
(a)
the party who seeks foreclosure is required to deliver a notice to subsequent encumbrancers in a time and manner provided in the order;
   
(b)
a subsequent encumbrancer is bound by the provisions of an order for foreclosure when delivery is made as provided;
   
(c)
the subsequent encumbrancer may defend or contest the claim in the manner provided in the order.
  (3) The notice to subsequent encumbrancer must contain the standard heading, be entitled “Notice to Subsequent Encumbrancer”, be dated and signed, and include all of the following:
   
(a)
a statement that the action or application was started for foreclosure of the equity in the property described as approved by the judge;
   
(b)
a statement that the person has been identified as having a subsequent interest in the equity, such as a mortgage, judgment, other charge, right of way, or tenancy;
   
(c)
notice that the subsequent encumbrancer’s interest will be foreclosed, unless the person defends or contests the proceeding as provided in these Rules and within the time provided in the order;
   
(d)
a statement that the only claim against the subsequent encumbrancer is for foreclosure;
   
(e)
the address of the prothonotary;
   
(f)
the address for delivery of the plaintiff or applicant.
  (4) The notice to subsequent encumbrancer may be in Form 35.12.
       
Proprietorship
35.13   A claim brought by or against a proprietorship may be brought in the name of the proprietor, such as “Mary MacDonald”, or in the name of the proprietor and the firm, such as “Mary MacDonald, carrying on business as ACME”.
       
Partnership
35.14 (1) Members of a partnership may be named as parties individually by name, unless the partnership is a limited liability partnership.
  (2) Common members of two or more partnerships individually named in a proceeding between the partnerships must be named as a partner of each partnership, such as “John Smith as a partner of ACME”, as a plaintiff, and “John Smith as a partner of WHYCO”, as a defendant.
  (3) Partners of an unlimited liability partnership may be named by the firm name, if the firm is not dissolved and the partners are not named individually.
  (4) A judge may order that a firm name replace individual member names, or members’ names replace the firm name of an unlimited liability partnership.
  (5) A partnership named by firm name must do all of the following, unless the partnership does not defend an action, respond to an application, or participate in a proceeding for judicial review or an appeal:
   
(a)
appoint one counsel, if it chooses to be represented;
   
(b)
appoint one member to speak for and bind the partnership in the proceeding, if it chooses to act on its own;
   
(c)
file a pleading in the partnership name, not on behalf of any member individually;
   
(d)
on demand made to a partnership that is not limited, deliver to each other party a list of the members of the firm including those who were partners on the earliest material date, all who became partners afterward, the date each became a partner, the date of retirement of those who retired after the earliest material date, the present address of each member, and information known to the partnership about the present address of a former member who retired after the earliest material date;
   
(e)
assist in providing notice to each member if a claim is made against an unlimited partnership and the party making the claim delivers a notice of possible enforcement against members under Rule 79 - Enforcement by Execution Order.
  (6) A party may not name, as another party, a member of a limited partnership or partnership named by firm name, unless one of the following exceptions applies:
   
(a)
the member is a party claiming against the partnership;
   
(b)
the member is a party claimed against by the partnership;
   
(c)
a judge permits.
       
Consequential provisions
35.15 (1) A party who successfully moves to be joined in a proceeding must do all of the following, unless a judge orders otherwise:
   
(a)
obtain copies of all pleadings, affidavits, and notices that have been filed in the proceeding;
   
(b)
become informed of an outstanding motion and dates set for a motion, the status of the proceeding, including dates set for discovery, motion, conference, trial, hearing, or other steps;
   
(c)
deliver to each other party a certified copy of the order joining the party.
  (2) A party who successfully moves to join a person as a party must do all of the following, unless a judge orders otherwise:
   
(a)
deliver copies of all pleadings and notices, documents effecting disclosure, and discovery transcripts to the new party;
   
(b)
inform the new party of the status of the proceeding, including dates set for discovery, motion, conference, trial, hearing, or other steps;
   
(c)
deliver a certified copy of the order to each other party.
  (3) A new party joined by amendment or order must be notified in accordance with Rule 31.11, of Rule 31 - Notice.
       

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