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

Rule 52 - Trial by Jury

Scope of Rule 52
52.01   A jury trial may be conducted in accordance with the applicable provisions of Rule 51 - Conduct of Trial and in accordance with this Rule.
       
Jury election
52.02 (1) For the purpose of Section 34 of the Judicature Act, the provisions in that Section respecting jury trials and procedure are modified by this Rule 52.02.
  (2) An application, and an action to which Part 12 - Actions Under $100,000 applies, must be heard or tried by a judge without a jury.
  (3) Parties to an action, to which Part 12 does not apply, must elect trial by judge or trial by jury in the request for a date assignment conference or the memorandum for the date assignment conference judge.
  (4) An action must be tried by a judge without a jury, unless a party elects trial by jury in accordance with this Rule 52.02.
  (5) An action in which a party elects trial by jury must be tried by a jury, unless another party makes a motion for an order that the action be tried by a judge and satisfies the judge hearing the motion on either of the following:
   
(a)
under a Rule, under legislation, or by operation of other law, the action cannot be tried by a jury;
   
(b)
the action is not for a cause referred to in subclause 34 (a)(i) of the Judicature Act, and justice requires trial by a judge rather than by a jury.
       
Jury selection
52.03 (1) This Rule does not modify the provisions of the Juries Act for constituting or selecting a civil jury, except Rule 52.03(2) provides for excusing a jury panel member after jury selection begins, Rule 52.05(2) provides for peremptory challenges by a third party, and Rule 52.10(1) allows for continuation of the selection after a juror is excused.
  (2) A judge who is satisfied that a member of the jury panel is unable to perform the duties of a juror may excuse the person from the panel anytime until the person is sworn or affirmed as a juror.
  (3) A juror is discharged in accordance with Rule 52.10.
       
Challenge for cause
52.04 (1) A party who wishes to challenge every potential juror for cause must, no less than ten days before the first day of trial, file a notice of motion for directions.
  (2) A party who determines to challenge a potential juror for cause must notify the judge and the other parties of the grounds for the challenge as soon as the party makes the determination.
  (3) A challenge for cause must be determined by two triers.
  (4) One of the following pairs must be called to be the triers each time a challenge is made:
   
(a)
the last two jurors sworn or affirmed, if there are two or more jurors;
   
(b)
the only juror sworn or affirmed and another person selected at random from the jury panel, if there is only one juror;
   
(c)
two persons selected at random from the jury panel, if no jurors have been sworn or affirmed;
   
(d)
jurors or persons selected at random as the judge may direct, to replace triers who are unable to determine a challenge.
  (5) A trier who is to determine a challenge based on partiality, must swear or affirm that the trier will make a fair and just inquiry whether the potential juror is impartial as between the parties and will give a true verdict according to the evidence.
  (6) A trier who is to determine a challenge not based on partiality must swear or affirm a form of oath or affirmation directed by the trial judge.
  (7) When the triers determine a challenge to be true, the person called to be a juror must be directed to rejoin the other jury panel members, or be permitted to leave.
       
Peremptory challenge
52.05 (1) A peremptory challenge must be made in the following ways, unless the presiding judge directs otherwise:
   
(a)
the first person called into the jury box is asked to stand and the plaintiff or all plaintiffs represented by the same counsel say “content” or “challenge”, and nothing more;
   
(b)
if there is more than one plaintiff and they are separately represented or act on their own, the plaintiff whose name appears first in the heading and those commonly represented with the first plaintiff, are given the first opportunity to challenge the first juror, followed by the plaintiff whose name appears next or those commonly represented with that plaintiff, and so on;
   
(c)
if the potential juror is not challenged by a plaintiff, a defendant or all defendants represented by the same counsel, then say “content” or “challenge”, and nothing more;
   
(d)
if there is more than one defendant and they are separately represented or act on their own, the order is the same as with plaintiffs;
   
(e)
if the potential juror is challenged peremptorily by a party who has not used all peremptory challenges, the person is directed to join the other members of the jury panel or permitted to leave;
   
(f)
the second potential juror is asked to stand, and the order for challenges is reversed, and so on until seven jurors are selected.
  (2) A third party may peremptorily challenge four jurors, and the judge must give directions for the order in which challenges are to be made in a trial that includes a third party claim.
       
Becoming juror
52.06 (1) A potential juror is selected to be a juror when either of the following occurs:
   
(a)
the potential juror is called into the jury box and is not challenged peremptorily or for cause;
   
(b)
the potential juror is challenged for cause, the triers determine the challenge is not true, and no peremptory challenge is exercised.
  (2) A selected juror becomes a juror when the selected juror swears or solemnly affirms to try the action impartially, give a true decision according to the evidence, and keep jury deliberations secret.
       
Assistance for juror with disability
52.07   The presiding trial judge may order assistance for a juror with a disability.
       
Roll call
52.08   On each of the following occasions, a presiding judge or the court reporter may announce for the record that all jurors are present and, otherwise, the court reporter must call the name of each juror and note the juror’s response:
   
(a)
when the jurors have been selected and first appear in court to begin the trial;
   
(b)
each day the jurors are required to attend, when they first appear in court;
   
(c)
on days of deliberation, before the deliberations begin for the day;
   
(d)
when the jurors assemble to receive further instruction or announce a verdict.
       
Order of presentations
52.09 (1) The parties in a jury trial must make all of the following presentations in the following order, unless the presiding judge directs otherwise:
   
(a)
the plaintiff makes a speech opening the plaintiff’s case;
   
(b)
the defendant, who undertakes to open a case in defence and not to make a motion for non suit, makes a speech about the anticipated case in defence;
   
(c)
the plaintiff adduces the plaintiff’s evidence, and when it is finished, closes the case and tenders exhibits without a speech;
   
(d)
the defendant who did not elect to make a speech before the plaintiff's evidence is adduced makes a speech opening the case in defence or announces to the jury, without a further speech, that the defendant calls no evidence and tenders exhibits proved by the defendant and admitted into evidence during the plaintiff’s case;
   
(e)
the defendant who opens a case, adduces the defendant’s evidence and, when it is finished, closes the case and tenders exhibits without a speech;
   
(f)
the plaintiff announces there is no rebuttal or adduces rebuttal evidence after informing the judge and the other parties, without the jury being present, of the subject to be dealt with on rebuttal;
   
(g)
the parties make a closing speech, the one who last opened a case going first, without a reply.
  (2) The judge may direct that the order of presentations is reversed in a trial in which the defendant bears the burden of proof on all issues to be determined by the jury.
       
Discharge of jurors and mistrial
52.10 (1) A presiding judge who, before any party opens a case, is satisfied that a selected juror is unable to perform the duties of a juror may discharge the juror and resume jury selection.
  (2) A judge may discharge one of the seven jurors after a party’s case is opened and direct that the trial proceed, in accordance with Section 18 of the Juries Act.
  (3) A judge who discharges jurors such that five or less remain on the jury must declare a mistrial, except the judge may discharge all the jurors and continue the trial without a jury in either of the following circumstances:
   
(a)
the discharge did not result from the misconduct of a party and all parties consent;
   
(b)
the discharge resulted from the misconduct of a party and all other parties consent.
  (4) After a judge declares a mistrial, a party may make a motion under Rule 52.02(5)(b) that the action be tried by a judge without a jury.
       
Taking a view
52.11   A presiding judge may permit the jury to inspect any place or thing, and the judge must accompany the jury during the inspection.
       
Instructions on damages
52.12   A judge who instructs a jury on assessment of damages may give guidance, and the parties may make submissions, to the jury on the amount of damages.
       
Verdict and answers
52.13 (1) A presiding judge may direct a jury to give a general verdict, to give a special verdict, or to answer jury questions and, in the absence of directions, the jury may return a general verdict or a special verdict.
  (2) A judge may not direct a jury to return a special verdict or answer questions in an action for defamation, unless all parties consent.
  (3) A judge who directs a jury to answer jury questions must settle the wording of the questions and provide them in writing to the jurors.
  (4) The questions must be such that the answers will determine all issues in the action, except issues that must be determined by the judge.
  (5) A party who is not satisfied that the jury questions cover all issues in the action may request the judge to include a supplementary question.
  (6) The judge may provide the jurors with a form on which to record the agreement of the jury on the verdict or an answer, and the form may provide for the signature of the foreperson if the jury chooses one, or of all jurors if the jury chooses to proceed without a foreperson.
       
Sequestration
52.14 (1) Jurors need not remain together before deliberations start, unless the judge directs otherwise.
  (2) Jurors must not separate during deliberations, unless the judge permits otherwise.
  (3) From when deliberations start until the jurors are discharged by the judge, jurors must avoid communicating with others, except as the judge or jury manager permits.
       
Jury manager
52.15 (1) A presiding judge must appoint a sheriff as a jury manager to supervise the sequestration of a jury, provide for the needs of a juror during sequestration, and relay permissible communications.
  (2) The jury manager must swear an oath or make an affirmation to keep the jurors together, and apart from other persons who may influence a juror, except as permitted by the trial judge.
  (3) A juror may communicate with the jury manager to obtain services, to pass a question to the judge, to advise that a verdict has been reached, or for any other practical purpose that does not involve discussing the issues, evidence, or deliberations.
       
Questions and announcement by jury
52.16   A jury may, in writing, ask the trial judge a question or announce deliberations have ended by giving the writing to the jury manager, and the manager must deliver the writing to the judge.
       
Majority verdict or answers
52.17 (1) A verdict or answers must be unanimous if given before the jury deliberates for four hours.
  (2) A verdict may be given, and a question may be answered, by five jurors after four hours of deliberations.
  (3) Jury questions may be answered by differently composed majorities of five jurors.
       
Conditional verdict
52.18 (1) A presiding judge may permit a party to prove a fact, document, electronic information, or other thing at a later time.
  (2) The judge who permits later proof must either adjourn the trial to the later time or instruct the jury to treat the fact, document, electronic information, or other thing as proved.
  (3) The judge must conditionally accept the verdict of a jury instructed to treat something as proved, until it is proved to the satisfaction of the judge or the judge finds it is not proved.
  (4) The judge may grant a final order in accordance with the verdict or, if the judge finds the fact, document, electronic information, or other thing is not proved, in accordance with the verdict as modified in light of the finding.
       
Mistrial after jury deliberates
52.19 (1) A presiding judge must declare a mistrial when one of the following occurs:
   
(a)
the required majority is unable to agree on a verdict or answers to jury questions;
   
(b)
the jury returns a special verdict without making findings on which judgment can be granted;
   
(c)
the jury answers some questions, but not all of them, and judgment cannot be granted on the answers that are given;
   
(d)
the jury gives conflicting answers, such that judgment cannot be granted on the apparent findings.
  (2) The judge may grant judgment on some claims and order a mistrial on others if the jury returns a special verdict, or answers some questions, and the verdict, or answers, entitle a party to judgment on some claims.
  (3) The prothonotary must schedule a date assignment conference as soon as possible after a mistrial, unless the judge directs otherwise.
  (4) For the purpose of Section 34 of the Judicature Act, the judge who declares a mistrial may order that the new trial is to be conducted without a jury, if justice requires.
       
Record of verdict or answers
52.20 (1) A foreperson chosen by the jurors, or each juror if there is no foreperson, must announce the verdict or answers after court is opened for that purpose, and the presence of all jurors is announced or the roll call is taken.
  (2) After a foreperson announces the verdict or answers, a party may require a poll of the jurors.
  (3) A form provided by the judge to record the agreement of the jury on the verdict or questions must be delivered to the court reporter for inspection by the presiding judge and the parties, and it must be marked as an exhibit.
  (4) The judge must grant an order for judgment consistent with the verdict or answers.
       

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CONDUCT OF TRIAL

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CONDUCT OF HEARING >>