Civil Procedure Rules of Nova Scotia  
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Part 9 - Pleading, Affidavit, and Brief

Rule 38 - Pleading

Scope of Rule 38 and definition
38.01 (1) A party may prepare a pleading, claim a declaratory judgment, or obtain particulars of a claim, defence or ground, in accordance with this Rule.
  (2) In this Rule,
   
“statement of claim” includes a statement of counterclaim, crossclaim, and claim against third party;
   
“statement of defence” includes a statement of defence to counterclaim, crossclaim, third party claim, or subsequent claim.
       
General principles of pleading
38.02 (1) A party must, by the pleading the party files, provide notice to the other party of all claims, defences, or grounds to be raised by the party signing the pleading.
  (2) The pleading must be concise, but it must provide information sufficient to accomplish both of the following:
   
(a)
the other party will know the case the party has to meet when preparing for, and participating in, the trial or hearing;
   
(b)
the other party will not be surprised when the party signing the pleading seeks to prove a material fact.
  (3) Material facts must be pleaded, but the evidence to prove a material fact must not be pleaded.
  (4) A party may plead a point of law, if the material facts that make it applicable are also pleaded.
       
Pleading a claim or defence in an action
38.03 (1) A claim or defence in an action, and a claim or defence in a counterclaim, crossclaim, or third party claim, must be made by a statement of claim that conforms with Rules 4.02(4) and 4.03(5), of Rule 4 - Action, or a statement of defence that conforms with Rule 4.05(4) of Rule 4.
  (2) The following additional rules of pleading apply to all pleadings in an action:
   
(a)
a description of a person in pleadings must not contain more personal information than is necessary to identify the person and show the person’s relationship to a claim or defence;
   
(b)
claims or defences may be pleaded in the alternative, but the facts supporting an alternative claim or defence must be pleaded distinctly;
   
(c)
a pleading that refers to a material document, such as a contract, written communication, or deed must identify the document and concisely describe its effect without quoting the text, unless the exact words of the text are themselves material;
   
(d)
a pleading that alleges notice is given must state when the notice was given, identify the person notified, and concisely describe its content without quoting the text, unless the exact words of the text are themselves material.
  (3) A pleading must provide full particulars of a claim alleging unconscionable conduct, such as fraud, fraudulent misrepresentation, misappropriation, or malice.
       
Further rules for pleading a claim in an action
38.04   The performance or occurrence of a condition necessary to a claim is implied from the pleading of the claim and need not be included in a statement of claim, and the party who alleges non-performance or non-occurrence of the condition must specifically plead it in the statement of defence.
       
Further rules for pleading a defence
38.05   The following further rules of pleading apply to a statement of defence:
   
(a)
it must, if it is denied, expressly and specifically deny the right of a party to claim in an alleged representative capacity, the constitution of an alleged partnership, the incorporation of an alleged corporation, the legality of a contract, or the binding effect of an alleged contract;
   
(b)
it must, if it is claimed, specifically plead non-performance or nonoccurrence of a condition to a right or obligation;
   
(c)
it must specifically plead any material fact or points of law on which the party intends to rely at trial and that, if not specifically pleaded, would take the other party by surprise or raise an issue not clearly raised by the statement of claim and the party’s denials and version of the material facts.
       
Pleading grounds in an application
38.06   The following rules of pleading apply to a statement of grounds or notice of contest in an application and they are further to the rules of pleading provided in Rules 5.02 to 5.04, 5.07, and 5.08, of Rule 5 - Application:
   
(a)
the grounds must be stated in such a way that the relevance of each statement in an affidavit filed, or to be filed, by the party is apparent;
   
(b)
a description of a person must not contain more personal information than is necessary to identify the person and show the person’s relationship to a claim or ground of contest.
       
Claiming a remedy in an action or application, including declaratory judgment
38.07 (1) A statement of claim, an ex parte application, and a notice of application must state the remedy the party seeks from the court, except that a claim for costs is presumed.
  (2) A statement of defence, or contest, need not claim a dismissal of the action, counterclaim, crossclaim, third party claim, or application, and a claim for costs is presumed.
  (3) The statement of claim must state each of the following:
   
(a)
the amount claimed for damages, if the claim is only on a debt, another liquidated demand, or an ascertained amount;
   
(b)
the particulars of a claim for damages other than damages referred to in Rule 38.07(3)(a), but not the amount the party seeks;
   
(c)
all remedies other than damages claimed by the party.
  (4) The ex parte application or notice of application must state the remedy sought by describing the order the applicant seeks.
  (5) A party making a claim in an action or an application may plead or apply for a declaration of the legal status or right of a person.
       
Requiring particulars in an action
38.08 (1) A party to an action may deliver to another party a demand for a further and better statement of a claim or defence.
  (2) The party may only demand a statement that the other party could have included in the original pleading, and the party must not demand evidence or a description of evidence.
  (3) The demand must contain the standard heading, be entitled “Demand for Particulars”, be dated and signed, demand particulars, and describe each particular in separately numbered sentences.
  (4) The demand for particulars may be in Form 38.08.
  (5) The demand may not be filed with the court.
  (6) A judge may order a party to provide a further or better statement of a claim or defence.
       
Providing particulars in an action
38.09 (1) The party to whom a demand for particulars is delivered must file an answer no more than ten days after the day the demand is delivered.
  (2) The answer must contain the standard heading, be entitled “Answer to Demand for Particulars”, be dated and signed, identify the party demanding particulars and the party answering, repeat each numbered demand and, after each demand, provide one of the following statements:
   
(a)
a response to the demand that becomes part of the pleading to which it relates;
   
(b)
a refusal to respond and the reason for the refusal.
  (3) The answer to demand for particulars may be in Form 38.09.
       
Obtaining particulars in an application, judicial review, or appeal
38.10 (1) A party to an application, proceeding for judicial review, or an appeal may request particulars of a ground, and the party to whom the request is delivered must, in writing, answer the request or reserve the request for direction of a judge.
  (2) A party to an application who is requested to provide particulars may give an answer by referring to evidence in an affidavit.
       
Close of pleadings
38.11   Pleadings close in an action on the day when each party claimed against has filed a notice of defence, has filed a demand of notice, or has become disentitled to further notice, unless the parties agree or a judge orders otherwise.
       
Amendment of pleading
38.12   Pleadings are amended as provided in Rule 83 - Amendment.
       

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