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

Rule 51 - Conduct of Trial

Scope of Rule 51
51.01   A judge who presides at the trial of an action directs the conduct of the trial and, unless the judge directs otherwise, the trial may be conducted in accordance with this Rule.
       
Notice of some kinds of evidence
51.02 (1) Nothing in this Rule 51.02 diminishes the requirements for making disclosure under Part 5 - Disclosure and Discovery, or Rule 55 - Expert Opinion.
  (2) A party must notify each other party of a decision to offer any of the following evidence at trial as soon as the decision is made, but no later than the finish date:
   
(a)
an affidavit to be tendered in accordance with Rule 51.07;
   
(b)
an excerpt from a record of evidence given already in the proceeding, or on a trial or hearing in another proceeding;
   
(c)
a plan, photograph, audio recording, visual recording, audio-visual recording, model, or other real or demonstrative evidence;
   
(d)
proof of foreign law;
   
(e)
evidence that was the subject of a claim of privilege made by the party, but which the party decides to use as evidence in the proceeding;
   
(f)
the subject of a question on discovery or interrogatory, or of a demand for production, if the party objects to the question, interrogatory, or demand and later decides the subject is admissible, such as when the party decides to call evidence on the subject.
  (3) A judge may order a party who unreasonably delays making a decision about evidence mentioned in Rule 51.02(2) to indemnify another party for expenses caused by the delay.
       
Exclusion of evidence for non-compliance
51.03 (1) A judge who presides at a trial must exclude evidence of the following kinds, unless the party offering the evidence satisfies the judge it would be unjust to exclude it:
   
(a)
evidence for which notice is required, but for which notice is not given;
   
(b)
evidence required to be disclosed under, but not disclosed in accordance with, Part 5 - Disclosure and Discovery;
   
(c)
evidence offered by a party who fails to give the evidence, or to give information leading to the evidence, in response to a direct question asked at discovery or by interrogatory, such as by answering that the party does not know the answer and failing to make disclosure when the answer becomes known or by objecting to the question on the ground of relevancy;
   
(d)
expert opinion not disclosed under Rule 55 - Expert Opinion.
  (2) A judge who admits evidence despite non-compliance with the Rules for notice, disclosure, or discovery must consider ordering the party proposing the evidence to indemnify each other party for expenses caused by the introduction of the evidence, including expenses resulting from an adjournment.
       
Trial brief
51.04   A party must file a brief no less than ten days before the day a trial is scheduled to start.
       
Order for presentations, role of counsel, and new evidence
51.05 (1) The parties in a trial without a jury may make presentations as follows:
   
(a)
the plaintiff opens the plaintiff’s case without making a speech and does so by tendering agreed exhibits, causing a record to be made of agreed facts, and calling the first witness;
   
(b)
the plaintiff adduces the rest of the plaintiff’s evidence and, when the evidence is finished, closes the case and tenders the exhibits of the plaintiff;
   
(c)
the defendant announces that the defendant calls no evidence and tenders exhibits the defendant proved during the plaintiff’s case, or opens the case in defence by calling the first witness;
   
(d)
the defendant who opens a case in defence adduces the defendant’s evidence and, when it is finished, closes the case in defence and tenders exhibits of the defendant;
   
(e)
the plaintiff announces there is no rebuttal, or adduces rebuttal evidence after informing the trial judge and the other parties of the subject to be dealt with on rebuttal;
   
(f)
the parties make a closing speech, the one who last opened a case going first with the opportunity to make a reply on new points raised by the other party.
  (2) Rules 51.05(3) to (6) apply to a trial with a jury or without a jury.
  (3) If there is more than one defendant and at least one of them acts on their own or by different counsel, the following order of opening cases or announcements about not calling evidence applies, unless the judge directs otherwise:
   
(a)
first, the defendant whose name is first in the heading and, if that defendant is represented, all others represented by the same counsel;
   
(b)
second, the next named defendant who has not opened or announced, and all others represented by the same counsel;
   
(c)
third and so on, in the order provided in the heading.
  (4) The presiding judge must provide directions for the order of presentations in a trial that includes a third party claim.
  (5) A party represented by counsel must speak, and adduce evidence, through that counsel.
  (6) The presiding judge may direct any order of presentations, and may permit a party to present further evidence at any time before the final order is issued in an action tried without a jury or after the jury begins deliberations in a trial with a jury.
       
Non suit
51.06 (1) At the close of the plaintiff’s case and before the defendant elects whether to open the defendant’s case and present evidence, the defendant may make a motion for dismissal of the proceeding, or a claim in the proceeding, on the ground that there is no evidence on which a properly instructed jury could find for the plaintiff.
  (2) A defendant who unsuccessfully makes a motion for a non suit must elect whether to open the defendant’s case and call evidence when the motion is dismissed.
       
Proof of facts
51.07 (1) A party may prove a fact in a way permitted by legislation, established at common law, or permitted by these Rules.
  (2) A party may prove a fact in any of the following ways:
   
(a)
tendering an agreed statement of fact signed by each party for whom the fact is material to a claim or defence;
   
(b)
obtaining, in open court, a stipulation of the truth of a fact by each party for whom the fact is material to a claim or defence;
   
(c)
tendering a document, electronic information, or other evidence with the consent of all parties for whom the document, information, or other evidence is relevant to a claim or defence, and stating any conditions on the consent;
   
(d)
tendering a request for admissions under Rule 20 - Admission, and either proving the request was not answered or tendering an admissible answer;
   
(e)
tendering excerpts from a certified discovery transcript, as provided in Rule 18 - Discovery;
   
(f)
tendering a certified transcript of commission evidence, as provided in Rule 56 - Commission Evidence and Testimony by Video Conference;
   
(g)
tendering an affidavit, if the judge permits and the witness is, or will be, available for cross-examination;
   
(h)
tendering an affidavit, if the judge is satisfied that the evidence in the affidavit cannot reasonably be contested.
  (3) A presiding judge may order any method of proving a fact or document, or of adducing evidence, if the judge is satisfied that the method is consistent with the rules of evidence.
       
Testimony by video conference
51.08   A presiding judge may permit testimony by video conference, or by telephone or other telecommunication, in accordance with Rule 56 - Commission Evidence and Testimony by Video Conference.
       
Control of witness
51.09 (1) A presiding judge may order that a witness who is not a party, a designated manager of a party, or an officer of a party be excluded from the courtroom until called, and the judge may extend the exclusion after the witness has testified if there is a likelihood the witness will be recalled.
  (2) The judge who orders exclusion of a witness may direct a party who intends to testify to do so before an excluded witness is called by that party.
  (3) A presiding judge may order a witness not to communicate with any other witness about the case until all witnesses have testified.
  (4) No person may communicate about evidence, submissions, or rulings with a witness who is excluded.
  (5) A presiding judge who is satisfied that the exclusion of a witness is necessary for either of the following purposes may exclude a party, a designated manager of a party, or an officer of a party from all or part of a trial:
   
(a)
conducting the trial in an orderly way, for example when a witness persistently interrupts the trial without good reason;
   
(b)
finding the truth through testimony, for example when a witness’ presence is likely to have a severe adverse affect on the testimony of another witness.
       
Common book or file
51.10 (1) The parties must communicate with each other before trial for the production of a common documents book, or a common file of electronic information that the presiding judge or jurors can read.
  (2) All documents and electronic information a party wishes to offer, and to which no other party will object, must be bound in the common book, or placed in the common file.
  (3) The common book or file may be presented at the beginning of trial as containing jointly offered exhibits or exhibits to be tendered separately when the party offering the exhibits closes the party’s case.
  (4) A document in a common book, or electronic information in a common file, may be removed if no witness has identified the document, or information.
  (5) Unless the judge orders otherwise, a document or electronic information is taken as admitted if it is not removed from a common book or a common file when the last party closes that party’s case.
  (6) The contents, including hearsay, of a document or electronic information taken as admitted are taken to be evidence for all purposes unless the parties agree, or the judge rules, that the document or information is admitted for a limited purpose.
       
How to prove a document, or electronic information
51.11 (1) The presiding judge may give directions for proof of a document, and this Rule 51.11 applies in the absence of directions.
  (2) A party who wishes to have a document or electronic information admitted by consent of each party, or by operation of law permitting admission without a sponsoring witness, may prove the document by doing all of the following:
   
(a)
show the document, or information, to each other party by physical or electronic means;
   
(b)
establish the consent, or the requisites for admission by operation of law;
   
(c)
deliver the document physically to the court reporter, or deliver a storage medium containing only the electronic information to be admitted;
   
(d)
deliver a copy of the document, or information, by physical or electronic means to the court reporter for delivery or transmission to the judge;
   
(e)
request that the judge direct the document, or storage medium, given to the reporter be entered as an exhibit.
  (3) A party who seeks to prove a document or electronic information, the authenticity of which is admitted, must do all of the following:
   
(a)
show the document, or information, by physical or electronic means to each other party, and to the court reporter for delivery or transmission to the judge;
   
(b)
show the document or information to the witness;
   
(c)
through the witness, prove what the document or information is;
   
(d)
await cross-examination on admissibility, or on admissibility for a limited purpose only;
   
(e)
if, after submissions, the judge admits the document or information, deliver the document physically, or deliver a storage medium containing only the admitted electronic information, to the court reporter.
  (4) A party who seeks to prove a document or electronic information, the authenticity of which is not admitted, may do so in the same way another document or electronic information is proved except the party must present evidence proving authenticity and, unless the judge directs otherwise, each of the following applies:
   
(a)
the original of a document must be available for inspection or introduction;
   
(b)
the original source of electronic information must be available for inspection;
   
(c)
the document or electronic information is not shown to the judge, or read aloud, until the judge rules on authenticity.
  (5) Electronic information must be proved on a storage medium in which it cannot be rewritten, unless the judge directs otherwise.
  (6) A copy of a document, or electronic information, for the judge or jurors may be provided on paper or electronically, as the judge directs.
  (7) A presiding judge may order a document or electronic information be removed from the record, if the document or information is marked or tendered in error.
       
Taking a view
51.12 (1) A presiding judge may inspect a place or thing outside court in the presence of the parties.
  (2) A party may inform the judge in court, and on record, of that which the party wishes the judge to observe.
  (3) No one may communicate with the judge about the issues or the evidence when the inspection is being made, except a party may point the way to that which the party wishes the judge to observe.
       
Judge intervening in examination
51.13 (1) A presiding judge must give directions necessary to curtail an examination that is abusive or clearly duplicative.
  (2) The judge may give directions that tend to cause an examination to move more swiftly, distinctly, or effectively.
       
Judge calling, or recalling, witness
51.14 (1) A presiding judge may call a witness, and the judge may examine the witness or provide directions for direct examination and cross-examination of the witness.
  (2) The discretion to call a witness includes recalling a witness called by a party.
       
Record of document, or electronic information, objected to
51.15 (1) A party against whom an objection to a document or electronic information has been made may have the document, or information, marked as an exhibit in the hearing of the objection.
  (2) A document marked as an exhibit in the hearing of an objection that is sustained must be kept separate from the exhibits in the trial.
       

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