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

Rule 56 - Commission Evidence and Testimony by Video Conference

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 one of the following methods:
   
(a)
a commission to take the evidence and deliver a transcript to the court;
   
(b)
a commission to transmit the evidence to the court by video conference while the court is in session;
   
(c)
a transmission under order without a commission.
  (3) This Rule also provides for assistance to a court outside the province that takes evidence from a witness within Nova Scotia.
       
Order for transcription or transmission
56.02 (1)
A judge may make an order that does one of the following:
   
(a)
appoints a commissioner and authorizes the commissioner to take and transcribe evidence;
   
(b)
appoints a commissioner and authorizes the commissioner to transmit evidence by video conference received in open court;
   
(c)
provides for transmission of evidence by video conference received in open court without a commissioner.
  (2)
A judge who decides whether to order transcribed evidence must consider each of the following:
   
(a)
the circumstances of the person to be examined, including the potential for disruption to employment or personal life if the witness were to travel to the place of trial or hearing;
   
(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, and, if the person is in Nova Scotia, the expense of bringing the trial or hearing to the person;
   
(e)
the apparent importance of having the person's testimony;
   
(f)
the possibility of convening court where the witness is located, if that place is in Nova Scotia;
   
(g)
the possibility of appointing the judge to take evidence under commission, if the witness is outside Nova Scotia and there is no jury.
  (3)
A judge who decides whether to order transcribed evidence must also consider the inadequacies of a transcript for assessing testimony and any alternatives that may be available.
  (4)
A judge who decides whether to order transmitted evidence must also consider each of the following:
   
(a)
the quality of the proposed transmission for the purposes of the trial or hearing, especially for assessment of the evidence by a judge or members of a jury;
   
(b)
if there is a significant difference in time zones of the place of transmission and Nova Scotia, the impact on the trial or hearing of accommodating the need for alertness at both places;
   
(c)
if the transmission cannot be readied whenever the witness may be called, the impact on the trial or hearing of having to fix a date and time for the transmission or having to adjourn the trial or hearing.
  (5)
A judge who decides whether to order transmitted evidence without a commissioner must also consider how safeguards that are the subjects of instructions to a commissioner for taking and transmitting evidence can be ensured without a commissioner.
  (6)
A party who makes a motion for transcription or transmission of evidence from a place outside Nova Scotia must include references to the applicable laws of that place in the brief filed in support of the motion.
       
Rules of evidence and procedure on commission
56.03 (1) The rules of evidence apply to evidence taken or transmitted under this Rule 56.
  (2) A witness who gives evidence under this Rule 56 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 evidence is not being transmitted and the objecting party elects to reserve the question, line of questions, or subject for a ruling by a judge and undertaken to seek that ruling as soon as is practical;
   
(e)
the evidence is not being transmitted and the objecting party elects to adjourn the commission evidence and undertakes to seek a ruling by a judge as soon as is practical.
  (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.
       
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.
       
Order for transmission without commissioner
56.08 (1) An order for transmission without a commissioner may be made in writing or orally, before or during the trial or hearing in which the evidence is to be received.
  (2) The order must include a requirement for the administration of an oath or affirmation that accords with the laws of the place from which the evidence is to be transmitted.
  (3) The judge who presides at the trial or hearing must be satisfied on each of the following:
    (a) the required oath or affirmation is administered;
    (b) the witness is in a room with doors closed;
    (c) no one other than the witness is in the room, except as permitted by the judge;
    (d) the witness agrees to comply with all directions of the court, not to communicate with others during examination unless the judge permits, not to look at a note or other thing containing information unless the judge permits, and to report to the judge anything unusual that happens in the room.
       
Compelling attendance before commissioner
56.09 (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 56.09.
  (5) A judge may make an order compelling attendance of a witness at a video conference to be transmitted without a commissioner if the judge is satisfied that the order is necessary, and that either of the following applies:
   
(a)
the video conference is to be held in Nova Scotia, and the order can be enforced;
   
(b)
the witness agrees to the order.
       
Conduct of commission for another jurisdiction
56.10   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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