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

Rule 53 - Conduct of Hearing

Scope of Rule 53
53.01   A judge who presides at the hearing of an application directs the conduct of the hearing, and, unless the judge directs otherwise, the hearing may be conducted in accordance with this Rule.
       
Direct evidence by affidavit
53.02   The direct evidence of a witness on a motion or application must be provided through an affidavit, unless a presiding judge permits direct examination.
       
Cross-examination
53.03 (1) No cross-examination is permitted at the hearing of an application in regular chambers, and a party who wishes to exercise a right of cross-examination must arrange for a hearing at an appointed time or in court.
  (2) Cross-examination and any re-direct examination must be conducted before the presiding judge, unless the judge directs that cross-examination and any reexamination be conducted out-of-court.
  (3) A party who seeks to have cross-examination conducted out of court must undertake to file a transcript of the testimony no less than two days before the day the hearing starts.
  (4) The judge may direct that the cross-examination and re-direct examination out-ofcourt be recorded visually, as well as sound recorded.
       
Order of presentation and limits
53.04 (1) The order of presentation in a hearing scheduled to take a half-hour or more must be as follows, unless a judge directs otherwise:
   
(a)
the applicant refers to the affidavits in support of the application;
   
(b)
the respondent makes objection to anything in an affidavit that is inadmissible, the parties are heard, and the judge rules on the objection;
   
(c)
the applicant calls witnesses of whom a respondent gave notice that crossexamination is required;
   
(d)
the respondent cross-examines each, and the applicant questions the witness on re-direct examination if permitted;
   
(e)
the applicant conducts a direct examination of a witness the applicant has permission to call without an affidavit;
   
(f)
the respondent cross-examines, followed by re-direct examination if permitted;
   
(g)
the respondent refers to the affidavits in support of the respondent, the applicant makes objections on admissibility, and the respondent calls witnesses, as in the applicant’s case;
   
(h)
the applicant cross-examines each, and the respondent questions the witness on re-direct examination if appropriate;
   
(i)
there is no rebuttal;
   
(j)
the applicant makes submissions, followed by the respondent, followed by a brief reply.
  (2) The judge assigned to hear the application may, before or during the hearing, set limits on the time for examinations and submissions.
       
Cross-examination by video conference
53.05   A judge may permit cross-examination on an affidavit by video conference, or by telephone or other telecommunication, by appointing a commissioner under Rule 56 - Commission Evidence, and limiting the commission to cross-examination.
       
Control of witness
53.06 (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 hearing until cross-examined, and give directions to the witness about communicating with other witnesses.
  (2) 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 hearing:
   
(a)
conducting the hearing 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.
       
Trial Rules
53.07   Rules 51.12 to 51.15, of Rule 51 - Conduct of Trial, apply to the conduct of a hearing.
       
No jury
53.08   For the purpose of Section 34 of the Judicature Act, an application is heard by a judge without a jury.
       

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TRIAL BY JURY

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SUPLEMENTARY RULES OF EVIDENCE >>