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

Rule 56 - Commission Evidence

Scope of Rule 56
56.01 (1) This Rule provides for obtaining evidence from a witness who does not personally attend court.
  (2) The evidence is obtained by a commission to do either of the following:
   
(a)
take the evidence and deliver a transcript to the court;
   
(b)
transmit the evidence to the court by video conference while the court is in session.
  (3) A judge may issue a commission to take evidence, and the prothonotary or a judge may compel attendance before the commissioner, in accordance with this Rule.
       
Rules of evidence and procedure on commission
56.02 (1) The rules of evidence apply to evidence taken or transmitted by commission.
  (2) A witness who gives evidence by commission must answer a question to which an objection is made, unless one of the following applies:
   
(a)
the appointment of a commissioner who takes evidence, or a provision in an order, provides otherwise;
   
(b)
the questioner withdraws the question;
   
(c)
the evidence is being transmitted and the presiding judge rules that the question is not to be answered;
   
(d)
the commissioner is taking evidence to be transcribed, and the witness or a party claims that the information called for by the question is privileged.
  (3) The presiding judge must rule on the admissibility of an answer given to a question objected to, but answered, at a commission.
  (4) The rules for order of examinations, and all other rules of trial procedure or procedure on a hearing, apply when evidence is taken or transmitted by commission, unless a judge orders or the parties agree otherwise.
       
Commission
56.03 (1) A judge may, before the start of a trial or hearing, grant an order appointing a commissioner and authorizing the commissioner to take evidence.
  (2) A judge assigned to preside at a trial or hearing may, before or during the trial or hearing, grant an order appointing a commissioner and authorizing the commissioner to transmit evidence by video conference of such quality that the witness is as good as present in the courtroom, or by other teleconference.
  (3) A judge who decides whether to grant an order for commission evidence must consider each of the following:
   
(a)
the convenience of the person to be examined;
   
(b)
the chances that the person will not be available to testify in the courtroom;
   
(c)
the chances that the person will be beyond the ability of the court to compel attendance and will not attend voluntarily;
   
(d)
the expense of bringing the person to the trial or hearing, or the expense, if the person is in Nova Scotia, of bringing the trial or hearing to the person;
   
(e)
the apparent importance of having the person’s testimony;
   
(f)
the difficulty of assessing credibility of transcribed or recorded testimony;
   
(g)
the quality of proposed sound or visual transmission and the opportunity the transmission will afford for assessing the testimony;
   
(h)
the possibility of convening court where the witness is located, if that place is in Nova Scotia;
   
(i)
the possibility of appointing the judge to take evidence under commission, if the witness is outside Nova Scotia and there is no jury.
  (4) A party who makes a motion for a commission to take evidence in, or transmit evidence from, a place outside Nova Scotia must include brief references to the applicable laws of that place in the brief filed in support of the motion.
       
Content of order for commission
56.04 (1) An order for evidence to be taken under commission must appoint a commissioner, authorize the commissioner to administer an oath or affirmation to the witness to be examined, state how the testimony is to be recorded, provide instructions for carrying out the commission and for reporting the evidence, and provide that the appointment is conditional on the acceptance of the instructions.
  (2) The instructions may be provided in a separate document authorized by the order.
  (3) The order must name the witness to be examined and provide the time, date, and place for the examination under commission or provide a method by which the party conducting the direct examination, or the commissioner, gives adequate notice of the time, date, and place of the examination.
  (4) The order for commission may be in Form 56.04.
       
Instructions for taking evidence
56.05 (1) Instructions to a commissioner for taking evidence in Nova Scotia may explain that the appointment of the commissioner is conditional on the instructions being accepted and may include instructions on each of the following subjects:
   
(a)
impartial taking, and accurate recording, of the evidence;
   
(b)
administering an oath or affirmation;
   
(c)
the order of examinations;
   
(d)
objections and the need for the witness to answer all questions including those objected to;
   
(e)
the need to mark an exhibit;
   
(f)
appointing, and swearing or affirming, a translator or signer;
   
(g)
the requirement to cause a transcript to be prepared of everything said during the proceeding;
   
(h)
the requirement that the commissioner certify that the transcript accurately transcribes the evidence and all else that was said during the proceeding;
   
(i)
the requirement to deliver to the court a report, the original transcript, and each exhibit.
  (2) Instructions to a commissioner for taking evidence outside Nova Scotia may inform the commissioner of the effect of Sections 2 and 67 of the Evidence Act, include the instructions required for an examination in Nova Scotia, and provide that the commissioner is authorized to do each of the following:
   
(a)
take steps to ensure that the laws of perjury of the place where the examination is conducted apply to the taking of evidence;
   
(b)
follow instructions given by the judicial authority of the place of the examination as a condition of compelling attendance.
  (3) Instructions to a commissioner for an out-of-court examination may be in Form 56.05.
       
Instructions for transmitting evidence
56.06 (1) Instructions to a commissioner for transmitting evidence by video conference of such quality the witness is as good as present in the courtroom may include instructions on each of the following subjects:
   
(a)
impartial taking, and careful simultaneous transmission, of the evidence;
   
(b)
administering an oath or affirmation, unless the judge determines the witness may only testify on a promise to tell the truth;
   
(c)
following the directions of the presiding judge;
   
(d)
describing on record at the beginning of the conference the room in which the witness is situate and the persons present;
   
(e)
reporting on anything unusual that happens in the room, unless it appears in the transmission;
   
(f)
communicating with the court if the transmission fails;
   
(g)
the subjects referred to in Rule 56.05(2), if the examination is outside Nova Scotia;
   
(h)
the need to mark exhibits as directed by the judge and to deliver them to the court.
  (2) Instructions to a commissioner for transmitting evidence by any other kind of teleconference may include additional instructions on both of the following subjects:
   
(a)
the need to keep the witness from communicating with others during the examination and from looking at a note or other thing containing information, except as directed by the examining party or the judge;
   
(b)
showing the witness an exhibit and stating, for the record, that is being done.
  (3) The instructions to a commissioner to transmit evidence may be in Form 56.06.
       
Judge as commissioner
56.07   The judge presiding, or assigned to preside, at a trial or hearing may be appointed a commissioner to take evidence outside Nova Scotia.
       
Compelling attendance before commissioner
56.08 (1) A witness is compelled to attend a commission in Nova Scotia in accordance with Rule 50 - Subpoena.
  (2) A party may make a motion for a letter of the court requesting an appropriate judicial authority to require attendance for examination under a commission to be held outside Nova Scotia, and the party must do all of the following:
   
(a)
satisfy the judge that, under the law of the other jurisdiction, the judicial authority has the power to compel the attendance;
   
(b)
inform the judge of the method used to compel attendance, the existence or otherwise of a perjury offence, the penalty for perjury, and the oath, affirmation, or other prerequisite in the law of perjury of the other jurisdiction;
   
(c)
satisfy the judge that the request is in the interests of justice.
  (3) The letter may contain the heading of the proceeding, be entitled “Letter of Request”, be addressed to the other judicial authority by its proper name, be issued by the prothonotary, and include all of the following information and requests:
   
(a)
a description of the proceeding;
   
(b)
a record of the judge’s finding that the examination is in the interests of justice;
   
(c)
a description of the commission, including whether it is to take or transmit evidence;
   
(d)
a request that the authority permit the commission to proceed in accordance with the instructions, modified as required by the laws of the other jurisdiction;
   
(e)
the request to compel attendance, including any requirement to bring a document;
   
(f)
a reference to reciprocity (see Rule 50.03(2) of Rule 50 - Subpoena, Sections 70 to 72 of the Evidence Act, and Rule 56.09).
  (4) The letter of request may be in Form 56.08.
       
Conduct of commission for another jurisdiction
56.09   For the purpose of Section 72 of the Evidence Act, a commission authorized by a judge at the request of the court of another jurisdiction may be conducted in accordance with the following procedures:
   
(a)
procedures directed by the authorizing judge;
   
(b)
procedures in the appointment or other instrument of the requesting jurisdiction, unless otherwise directed by the judge;
   
(c)
procedures provided in this Rule for the conduct of a commission in Nova Scotia, unless they are inconsistent with the direction of the judge or procedures in the appointment or other instrument of the requesting jurisdiction.
       

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