Civil Procedure Rules of Nova Scotia  
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Part 11 - Trial and Hearing

Rule 50 - Subpoena

Scope of Rule 50
50.01   A witness may be compelled to give evidence, in accordance with this Rule.
       
Power of prothonotary to compel attendance
50.02 (1) A prothonotary at any courthouse may issue a subpoena for the attendance of a witness at a trial, or at the hearing of an application, an inquiry by a referee, an appeal at which evidence is to be taken, or a commission under Rule 56 - Commission Evidence and Testimony by Video Conference.
  (2) A prothonotary may only issue a subpoena for the attendance of a witness at the hearing of a motion, if a judge permits.
  (3) Only the prothonotary at the office where the documents in a proceeding are filed may issue a discovery subpoena in accordance with Rule 18 - Discovery.
  (4) A prothonotary may issue a subpoena addressed to a witness who appears to reside outside Nova Scotia, whether or not the party makes a motion for certification of the subpoena under the Interprovincial Subpoena Act.
  (5) The subpoena may require the witness to bring documents or other evidence.
  (6) A prothonotary who believes that issuing a subpoena may lead to an abuse of the court’s processes may require the party who seeks the subpoena to make the motion for the subpoena on notice to each other party and the witness, or refer the motion to a judge.
       
Power of judge to compel attendance
50.03 (1) A judge may order a witness to attend before the court, a judge, a referee, or a commissioner and to bring documents or other evidence.
  (2) A judge may order a witness in Nova Scotia, or direct the prothonotary to issue a subpoena compelling the witness, to attend before a commissioner in Nova Scotia appointed by a court outside Nova Scotia and authorized under Section 70 of the Evidence Act.
       
Issuing subpoena
50.04 (1) A prothonotary may issue a subpoena at the place where the documents in the proceeding are filed by filing the original and delivering two or more certified copies to the moving party.
  (2) A prothonotary may issue a subpoena at another place by delivering two or more certified copies to the moving party and the original to the prothonotary at whose office the documents in the proceeding are filed.
       
Form of subpoena
50.05 (1) A subpoena must contain the standard heading, be entitled “Subpoena”, be issued by the prothonotary, be addressed to the witness, and include all of the following:
   
(a)
the name of the witness and, if it is known, the community in which the witness resides;
   
(b)
requirements that the witness attend a trial, hearing, inquiry, appeal, or commission and bring, or provide access to, documents, electronic information, or other evidence;
   
(c)
the time, date, and place of the trial, hearing, inquiry, appeal, or commission;
   
(d)
the name of the party who obtains the subpoena;
   
(e)
a requirement the witness attend the entire trial, hearing, inquiry, appeal, or commission unless excused by a judge;
   
(f)
a warning of the possible consequences of failing to obey the subpoena.
  (2) The subpoena may be in Form 50.05.
       
Prisoner witness
50.06 (1) A judge may order an authority who has custody of a witness to deliver the witness to the sheriff.
  (2) The judge may order the sheriff to bring the witness before the court, judge, referee, or commissioner to give evidence and to return the witness after the evidence is given.
  (3) The judge may remand the witness during an adjournment.
       
Subpoena in aid of another judicial body
50.07 (1) A prothonotary or judge may compel the attendance of a witness at the request of a person or body who makes a judicial decision, such as an arbitrator or tribunal.
  (2) The prothonotary or judge may compel attendance before a person or body in a similar way as attendance is compelled under Rule 50.02 or 50.03.
  (3) A subpoena in aid of a person or body must contain a standard heading in which the person who applies for the subpoena is named as applicant, it must conform with Rule 50.05 as if the reference to a trial, hearing, inquiry, appeal, or commission were a reference to the proceeding before the person or body, and it must include both of the following:
   
(a)
a statement identifying the person or body who requests the subpoena;
   
(b)
a description of the proceeding before the person or body.
       
Assisting attendance
50.08 (1) A judge may order a person to do what is necessary to secure the attendance of a witness who is the subject of a subpoena issued by the prothonotary, an order for attendance, or a subpoena under the Interprovincial Subpoena Act.
  (2) The following are examples of orders that may be necessary to secure attendance:
   
(a)
an order for a witness with a disability to be assisted in ways related to the disability;
   
(b)
an order that a person who has custody of a witness provide transportation;
   
(c)
an order that a person explain the subpoena to a witness who may not otherwise understand it.
  (3) The judge who orders assistance may include in the order a provision for payment of expenses related to the assistance.
       
Delivery of subpoena
50.09   A subpoena, including a replacement subpoena under Rule 50.11, is ineffective unless a certified copy of it is personally delivered to the witness, except a subpoena directed to a party who designates an address for delivery may be delivered to that address.
       
Travel money
50.10 (1) A subpoena is ineffective unless the payment of fees and travel expenses required by the Costs and Fees Act, or the Interprovincial Subpoena Act, is delivered with the subpoena.
  (2) A party may supply a witness with reasonable transportation, meals, and accommodations in addition to fulfilling the requirements of the Costs and Fees Act, or the Interprovincial Subpoena Act.
       
Replacement subpoena
50.11 (1) A prothonotary may issue a subpoena to replace another subpoena, such as a replacement subpoena to correct the date of trial.
  (2) The party who obtains the replacement subpoena must hold the old subpoena if it was not delivered, and, if the old subpoena was delivered, the party must deliver a written explanation of the change with the replacement subpoena when it is delivered in accordance with Rule 50.09.
  (3) A party who obtains a replacement subpoena may deliver the subpoena without further payment, if both of the following apply:
   
(a)
the old subpoena was delivered to the witness with the required payment;
   
(b)
the witness did not travel in obedience to the old subpoena.
       
Duration of subpoena
50.12   A subpoena continues in effect until the end of the trial, hearing, inquiry, appeal, commission, or proceeding before a person or body who makes a judicial decision and requested the subpoena, or when one of the following occurs:
   
(a)
a judge excuses the witness from the subpoena;
   
(b)
the person or body who makes a judicial decision and requested the subpoena notifies the witness that attendance is no longer required;
   
(c)
counsel who obtained the subpoena notifies the witness that the issues are settled and the trial, hearing, inquiry, appeal, or commission is not to go ahead.
       
Arrest
50.13 (1) A person who fails to attend at the time and place provided in a subpoena or order for attendance that is delivered, with the required travel money, to the person may be dealt with under Rule 89 - Contempt.
  (2) In addition to the contempt power, a judge may issue a warrant to arrest the witness, detain the person for no more than one day, and bring the person before a judge on the day of the arrest.
  (3) An arrest warrant for failure to attend a trial, hearing, inquiry, appeal, or commission must contain the standard heading, be entitled “Warrant for Arrest of Defaulting Witness”, be addressed to the sheriff for the municipality in which the witness is to be found, and include all of the following:
   
(a)
a statement of the judge’s findings by which the warrant is authorized;
   
(b)
a direction to the sheriff to arrest the witness and bring the witness before a judge on the day of the arrest;
   
(c)
a statement of the purpose in bringing the witness before the judge, namely, to secure the witness’ attendance to give evidence and, if required by the judge, to start contempt proceedings;
   
(d)
a direction to the sheriff to inform the witness promptly of the reasons for, and purpose of, the arrest and detention and of the witness’ right to retain and instruct counsel without delay;
   
(e)
a direction to assist the witness who wishes to seek, or communicate with, counsel.
  (4) The warrant for arrest of defaulting witness may be in Form 50.13.
  (5) An arrest warrant for failure to attend before a person or body who requested a subpoena may be in a similar form, with necessary changes.
  (6) The sheriff is not obligated to execute the warrant, unless a judge is available on the day of the arrest and at a time when the witness can be brought before the judge.
       
Arrested witness
50.14 (1) A judge before whom an arrested witness is brought may do any of the following:
   
(a)
resume a trial or hearing and require the witness to testify;
   
(b)
direct that the witness be taken immediately to give evidence in the proceeding for which the subpoena, or order for attendance, was issued;
   
(c)
remand the witness to a lock-up facility until the trial or hearing of the proceeding resumes, if it is to resume in a reasonable time;
   
(d)
order the release of the witness, on the condition that the witness promises to attend the trial or hearing when it resumes and on any other conditions, such as posting security or providing a surety, as the judge considers necessary.
  (2) The judge who remands the witness must provide for return of the witness to give testimony as soon as is reasonable.
  (3) A judge who decides to start a contempt proceeding may grant bail or remand the witness as provided in Rule 89 - Contempt.
  (4) Without starting contempt proceedings, the judge may order the witness to indemnify a party for the expenses resulting from an adjournment caused by the witness’ failure to attend.
       

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