Civil Procedure Rules of Nova Scotia  
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Part 18 - Proceedings in the Court of Appeal

Rule 90 - Civil Appeal

Definitions
90.01 (1) In this Rule, unless the context requires otherwise,
    “appeal” means an appeal to the Court of Appeal;
    “appeal as to costs only” means an appeal in which costs is the only issue;
    “appellant” means a person who brings an appeal and includes a person who makes an application for leave to appeal or for a reference;
    “Chief Justice” means the Chief Justice of Nova Scotia;
    “child protection appeal” means an appeal under Section 49 of the Children and Family Services Act;
    “Court of Appeal” means the Nova Scotia Court of Appeal;
    “court appealed from” means a court, judge, or tribunal from which an appeal is available to the Court of Appeal;
    “file” means to file with the registrar;
    “general appeal” means an appeal other than a tribunal appeal, child protection appeal, interlocutory appeal, and costs only appeal;
    “interlocutory appeal” means an appeal of an interlocutory order;
    “interlocutory order” in reference to an order under appeal, includes an interim order;
    "judgment" means the formal disposition of an appeal by the Court of Appeal and includes an order for judgment, and, when referring to a judgment appealed from, means the judgment, verdict, order, finding, direction, determination or award of the court appealed from;
    “registrar” means the registrar of the Court of Appeal, and includes a deputy registrar;
    “respondent” means a person against whom the appellant brings an appeal, and any other person other than an intervenor who is authorized by the Court of Appeal or a judge to be a party to the appeal;
    "tribunal" means any person or body, from whom an appeal lies to the Court of Appeal, including any board, commission, committee, municipal authority, Minister, public official, or other public or governmental agency or authority such as the Governor in Council, but only includes a court, judge or magistrate that reserves, refers or states a matter to the Court of Appeal;
    “tribunal appeal” means an appeal from a decision or order of a tribunal.
       
Scope of Rule 90
90.02 (1) The Civil Procedure Rules that are not inconsistent with this Rule apply to proceedings in the Court of Appeal with necessary modifications as directed by the Court of Appeal or a judge of the Court of Appeal.
  (2) A person may do any of the following, in accordance with this Rule:
   
(a)
bring or respond to an appeal before the Court of Appeal;
   
(b)
bring or respond to an application for an order for leave to appeal;
   
(c)
make an application to have a reference, stated case or similar proceeding presented to the Court of Appeal.
       
Sittings of the court
90.03 (1) The Court of Appeal must sit at Halifax, and it may sit elsewhere, as the Chief Justice directs.
  (2) The terms of sittings of the Court of Appeal are from and to the following days, inclusive of those days, unless the Chief Justice directs otherwise:
   
(a)
the second Tuesday of January to the third Friday of February;
   
(b)
the second Tuesday of March to the third Friday of April;
   
(c)
the second Tuesday of May to the third Friday of June;
   
(d)
the second Tuesday of September to the third Friday of October;
   
(e)
the second Tuesday of November to the second Friday of December.
  (3) Each appeal must be heard and determined by a panel of three or more judges of the Court of Appeal.
  (4) The Chief Justice, and in the absence of the Chief Justice the next senior judge on the panel other than a supernumerary judge, must preside at a sitting of the Court of Appeal.
       
Starting an appeal
90.04   A person may bring an appeal by filing a notice of appeal with the registrar, in accordance with this Rule 90.
       
Notices of appeal
90.05 (1) An appeal must be started by filing a notice of appeal (general) in the form prescribed in Rule 90.06, except each of the following kinds of proceedings must be started by filing one of the following special notices:
   
(a)
a tribunal appeal, by notice of appeal (tribunal) under Rule 90.07;
   
(b)
an appeal under Section 49 of the Children and Family Services Act, by notice of appeal (child protection) under Rule 90.08;
   
(c)
an application for leave to appeal and appeal of an interlocutory order, by notice of appeal (interlocutory order) under Rule 90.09;
   
(d)
an application for leave to appeal and appeal as to costs only, by notice of appeal (costs only) under Rule 90.10.
  (2) Despite the requirements to start an appeal by a prescribed notice, an appeal may be started by filing a notice as prescribed in the legislation, if the legislation prescribes another kind of notice or other method.
  (3) A notice of appeal and an application for leave to appeal must be filed by the deadlines in Rule 90.13.
       
Notice of appeal (general)
90.06 (1) A notice of appeal (general) must have the standard heading as shown in Form 90.06, be entitled “Notice of Appeal (General)”, be dated and signed by each appellant or their counsel, and include all of the following:
   
(a)
a notice that the appellant appeals a judgment, including the name of the court appealed from, the date of the order or decision, the effect of the order or decision, and in the case of an appeal from a court order, the court number and name of judge;
   
(b)
a statement of whether the whole or a part of the order or judgment under appeal is being appealed from, and if it is a part, a statement describing the part;
   
(c)
a concise statement of all grounds of appeal, a citation of the statutory authority for the appeal, and a concise description of the order to be sought at the conclusion of the appeal;
   
(d)
a statement that the appellant will, no later than eighty days after the day the notice of appeal is filed, make a motion to a judge of the Court of Appeal to set the time and date for the appeal to be heard and to provide directions;
   
(e)
if there is only one appellant, an address for delivery of documents to the appellant and, if there is more than one appellant, a designation of a single address for delivery to all or separate addresses for each;
   
(f)
the names and addresses of the persons to whom a copy of the notice of appeal is to be delivered.
  (2) The notice of appeal (general) may be in Form 90.06.
       
Notice of appeal (tribunal)
90.07 (1) A provision in legislation prescribing the procedures to be followed for a tribunal appeal, including a provision prescribing how and when the appeal must be brought, and to whom the notice of appeal must be delivered, prevails over any inconsistent provision of this Rule 90, other than Rules made pursuant to s. 50 of the Judicature Act.
  (2) An application for leave to appeal pursuant to the Workers’ Compensation Act must be made in Form 90.07A and if leave to appeal is granted a notice of appeal (tribunal) in accordance with this Rule must be filed.
  (3) A notice of appeal (tribunal) must be entitled “Notice of Appeal (Tribunal)”, be dated and signed by each appellant or their counsel, include everything required for a notice of appeal (general), add as respondents the Attorney General of Nova Scotia and the tribunal as required by Rule 90.16(6), and it must include a notice to the respondent that the respondent may only participate in the appeal as a respondent if the respondent files a notice of intention to participate in the tribunal appeal no more than ten days after the notice of appeal is delivered to the respondent;
  (4) The notice of appeal (tribunal) may be in Form 90.07B.
       
Notice of appeal (child protection)
90.08 (1) A notice of appeal (child protection) must have the standard heading as shown on Form 90.08, be entitled “Notice of Appeal (Child Protection)”,be dated and signed by each appellant or their counsel, and include everything required in a notice of appeal (general), except instead of including a statement that the appellant will make a motion for directions at a future date, it must include the time and date when the appellant will make a motion to a judge of the Court of Appeal to set the time and date for the appeal to be heard and to provide directions for the appeal, including as to the appeal book and factums to be filed by the parties.
  (2) An appellant in a child protection appeal must make a motion to a judge of the Court of Appeal to set the time and date for the appeal to be heard and for directions for the appeal, including as to the appeal book and factums to be filed by the parties.
  (3) The motion must be made no later than ten days following the filing of the notice of appeal, failing which the appeal shall be deemed dismissed unless a judge orders otherwise.
  (4) The notice of appeal (child protection) may be in Form 90.08.
       
Notice of appeal (interlocutory)
90.09 (1) A notice of appeal (interlocutory) must have the standard heading as shown on Form 90.09, be entitled “Notice of Application for Leave to Appeal and Notice of Appeal (Interlocutory)”, be dated and signed by each appellant or their counsel, and include everything required for a notice of appeal (general), except instead of including a statement that the appellant will make a motion for directions at a future date, it must include:
   
(a)
the time, and date when the appellant will make a motion to a judge of the Court of Appeal to set the time and date for the appeal to be heard and to provide directions for the appeal, including as to the appeal book and factums to be filed by the parties;
   
(b)
a notice that the judge of the Court of Appeal and the Court of Appeal may proceed in the absence of the respondent, and the Court of Appeal may determine the appeal, if the respondent, or their counsel, does not attend the motion for directions.
   
(c)
an application for leave to appeal.
  (2) An appellant in an interlocutory appeal, within the deadlines in Rule 90.25(2), must make a motion to a judge of the Court of Appeal to set the time and date for the leave application and the appeal to be heard, and for directions for the appeal, including as to the appeal book and factums to be filed by the parties.
  (3) The notice of application for leave to appeal and notice of appeal (interlocutory) may be in Form 90.09/90.10.
       
Notice of appeal (costs only)
90.10 (1) A notice of appeal (costs only) must have the standard heading as shown on Form 90.10, be entitled “Notice of Application for Leave to Appeal and Notice of Appeal (Costs Only)”, be dated and signed by each appellant or their counsel, and include everything required for a notice of appeal (general), except instead of including a statement that the appellant will make a motion for directions at a future date, it must include the additional statements required for notice of appeal (interlocutory) as set out in Rule 90.09(1).
  (2) An appellant in a costs appeal, within the time limit stated in Rule 90.25(2), must make a motion to a judge of the Court of Appeal to set the time and date for the leave application and the appeal to be heard, and for directions for the appeal, including as to the appeal book and factums to be filed by the parties.
  (3) The notice of application for leave to appeal and notice of appeal (costs only) may be in Form 90.09/90.10.
       
Ground and decision
90.11 (1) An appellant may not rely on any ground of appeal not specified in the notice, unless the Court of Appeal or a judge of the Court of Appeal permits otherwise.
  (2) A copy of the decision and order must be filed with the notice of appeal, if the decision or order is in writing.
       
Leave to appeal
90.12 (1) An application for leave to appeal must be made to a judge of the Court of Appeal, unless legislation requires the application to be made to the Court of Appeal.
  (2) The judge who hears the application for leave may refer the application to the Court.
  (3) A party who makes an application for an order for leave to appeal may include the notice of application in the notice of appeal.
       
Deadline for starting appeal
90.13 (1) An appeal under legislation that provides a deadline for starting the appeal must be started no later than the time provided in the legislation and the calculation of the days shall be according to Rule 90.13(2).
  (2) For the purposes of section 49 of the Judicature Act, Rules 94.02(1) to (4) apply to the calculation of a period of days provided in a provincial statute for starting an appeal, or applying for permission to appeal, and the period is not calculated as provided in the Interpretation Act or in any other statute.
  (3) An appeal, or application for leave to appeal, from one of the following kinds of orders, or from the decision upon which it is based, must be started no more than the number of days in the following table after the date of the order, unless legislation provides, or a judge of the Court of Appeal permits, otherwise:
   
Kind of Order Number of Days After
under Divorce Act 30 days, within the meaning of Divorce Act
under Workers’ Compensation Act 30 days, within the meaning of Rule 94
interlocutory or costs only order of judge or court 10 days, within the meaning of Rule 94
other order of judge or court 25 days, within the meaning of Rule 94
order of tribunal 25 days, within the meaning of Rule 94
  (4) An appeal from a decision of a court or tribunal that has not issued an order must be started no more than the number of days stated for the applicable proceeding listed in the above table, after the day the decision is made, unless legislation provides, or a judge of the Court of Appeal permits otherwise.
       
Delivery of Notice of Appeal
90.14   The appellant must deliver the notice of appeal or notice of application for leave to appeal to each respondent by the deadline in Rule 90.13(3).
       
Appeal from decision
90.15   A person may appeal from a decision for which no order is issued, and the person must file the order before the appeal is set down for hearing unless the decision is of a tribunal that does not issue an order.
       
Parties
90.16 (1) An appellant must join as a respondent each other party to the proceedings under appeal and who is not an appellant.
  (2) A person who applies to be joined as a respondent in an appeal must include in the affidavit in support of the motion a statement of the person’s interest in the appeal and a summary of the position the person will take on the appeal.
  (3) The appellant must join as a respondent, the Attorney General of Nova Scotia or the Minister of Community Services, on whom a notice of appeal is required to be served under this Rule 90.
  (4) A judge of the Court of Appeal in a tribunal appeal may direct the appellant to notify a person of the appeal by delivering a certified copy of the notice of appeal to the person.
  (5) An appellant must deliver a copy of the notice of appeal to the court appealed from, for the information of the judge who made the decision.
  (6) An appellant on a tribunal appeal must join as respondents the Attorney General of Nova Scotia and the tribunal appealed from.
  (7) An appellant in a tribunal appeal who is uncertain as to whether a further person needs to be joined as a party or is uncertain as to the form of notice may seek clarification from a judge of the Court of Appeal at the hearing of the appellant’s motion for directions.
  (8) A judge of the Court of Appeal may order that a person be joined as a respondent.
       
Notification
90.17 (1) An appellant may deliver a copy of the notice of appeal and any other document in one of the following ways:
   
(a)
as agreed with the respondent;
   
(b)
by faxing or hand delivering a certified copy of the document to the respondent’s counsel;
   
(c)
in accordance with the provisions of Rules 31.02 to 31.10 for notifying a party of an action or application.
  (2) A party who makes a motion in an appeal must notify the other parties of the motion by delivering a copy of a notice of motion to the other parties.
  (3) A party who files a document in an appeal must deliver a copy of the document to each other party immediately before or immediately after it is filed.
  (4) An appellant may notify a person who is not a party to an appeal by delivering a certified copy of the notice of appeal to the person referred in accordance with Rule 31.03(1).
  (5) A party or the registrar may make a motion to a judge of the Court of Appeal for directions as to how the party must notify a person who is not a party to the appeal.
  (6) A copy of a notice of appeal (child protection) must be delivered to the Minister of Community Services by the deadline for starting the appeal in accordance with Rule 90.13(2).
       
Constitutional and other questions of public importance
90.18 (1) If a constitutional question or other question of public importance is raised by an appeal, the following applies:
   
(a)
a party may, or on direction of the Court of Appeal, a judge of the Court of Appeal or the registrar, a party must, give notice of the question to the Attorney General of Canada or to the Attorney General of Nova Scotia, by delivering the notice to the Attorney General;
   
(b)
the Attorney General of Canada, the Attorney General of Nova Scotia, or the Attorney General of any other Province of Canada, may make a motion under Rule 90.16 to be added as a respondent or an intervenor in an appeal by filing a notice of motion (intervention on question).
  (2) A notice to the Attorney General is given, for notice to the Attorney General of Canada, in accordance with Rule 31.03(1)(k), and, for notice to the Attorney General of Nova Scotia, in accordance with Rule 31.03(1)(j) by delivering both of the following:
   
(a)
a copy of the notice of appeal;
   
(b)
a document describing the question.
  (3) A notice of motion (intervention on question) must be filed no more than fifteen days after the day the notice of appeal is delivered to the Attorney General.
       
Intervention
90.19 (1) A person may intervene in an appeal with leave of a judge of the Court of Appeal.
  (2) A judge of the Court of Appeal may make an order granting leave to intervene on terms and conditions the judge sets.
  (3) A person who wishes to intervene in an appeal may make a motion to a judge of the Court of Appeal for leave to intervene by filing a notice of motion for leave.
  (4) The notice of motion for leave to intervene must be filed no more than fifteen days after the day the notice of appeal is filed.
  (5) A motion for leave must concisely describe all of the following:
   
(a)
the intervenor;
   
(b)
the intervenor’s interest in the appeal;
   
(c)
the intervenor’s position to be taken on the appeal;
   
(d)
the submissions to be advanced by the intervenor, their relevancy to the appeal, and the reasons for believing that the submissions will be useful to the Court of Appeal and will be different from those of the parties.
  (6) An intervenor’s factum must not exceed twenty-five pages, unless ordered otherwise by the Court of Appeal or a judge of the Court of Appeal.
  (7) An intervenor is bound by the content of the appeal books and may not add to them, unless a judge of the Court of Appeal directs otherwise.
  (8) An intervenor may present oral argument only if permitted by the Court of Appeal or a judge of the Court of Appeal.
       
Participation in tribunal appeal
90.20 (1) A respondent in a tribunal appeal may only participate in the appeal if the respondent files a notice of intention to participate in a tribunal appeal.
  (2) A notice must include a statement of intention to participate in the appeal and be filed no more than ten days after the day the notice of appeal is delivered to the respondent.
  (3) The notice to participate in a tribunal appeal must begin with the standard heading, be entitled “Notice to Participate in Tribunal Appeal”, be dated and signed by each respondent or their counsel, and include the address for service of documents on the respondent.
       
Cross-appeal
90.21 (1) A respondent who seeks an order setting aside or varying the judgment under appeal must cross-appeal.
  (2) The respondent may cross-appeal by filing a notice of cross-appeal.
  (3) The respondent must file the notice of cross-appeal no more than ten days after the day the notice of appeal is delivered to the respondent.
  (4) A notice of cross-appeal must have the standard heading, be entitled “Notice of Cross-appeal”, be dated and signed by the respondent who cross-appeals or their counsel, and otherwise include everything required for a notice of appeal (general) under Rule 90.06, modified as required.
  (5) A respondent may not rely on any ground of appeal not specified in the notice of cross-appeal, unless the Court of Appeal or a judge of the Court of Appeal permits.
  (6) After filing a cross-appeal, the respondent may make a motion to a judge of the Court of Appeal respecting directions, notification, and setting down dates for hearing the cross-appeal and a judge may make such order as the judge considers just.
       
Respondent’s notice of contention
90.22 (1) A respondent who does not cross-appeal and wishes to contend that the judgment under appeal should be affirmed for reasons different than those expressed in the decision or the judgment under appeal must file a notice of contention.
  (2) The respondent must file the notice of contention no more than ten days after the day the notice of appeal is delivered to the respondent.
  (3) A notice of contention must be entitled “Notice of Contention”, have the standard heading, be dated and signed by each respondent who wishes to contend on the appeal, and include a concise and complete summary of the alternative grounds put forward by the respondent for upholding the decision under appeal.
  (4) A failure of a respondent who contends for affirmation for different reasons to file a notice of contention does not diminish the power of the Court of Appeal, but it may be grounds for an adjournment and an order for costs.
       
Reference
90.23   An application made by an Attorney General or other person to make a reference under the Constitutional Questions Act or other statute must be made by notice of motion under these Rules and in accordance with the provisions of this Rule 90 respecting directions, notification, and setting down dates for hearing the reference, and a judge of the Court of Appeal hearing the motion may make such order as the judge considers just.
       
Stated Case
90.24 (1) A court, tribunal, commission, or other party allowed by legislation wishing to refer a question of law to the Court of Appeal for an opinion, must state a case in writing setting forth the question or questions of law to be answered and file it with the Court of Appeal.
  (2) After filing a stated case, the referring court, tribunal or party, or any party to the proceeding may make a motion to a judge of the Court of Appeal respecting directions, notification, and setting down dates for hearing the stated case and the judge may make such order as the judge considers just.
       
Motion for date and directions
90.25 (1) An appellant must make a motion to a judge of the Court of Appeal to set the time and date for the appeal to be heard and to provide directions for the appeal, including as to the appeal book and factums to be filed by the parties, and the judge may make such order as the judge considers just.
  (2) The motion to set the time and date and for directions must be scheduled by the appellant to be heard no more than the number of days in the following table after filing the kind of notice of appeal stated in the table:
   
Kind of Notice
Number of Days as defined in Rule 94
notice of appeal (general) 80
notice of appeal (tribunal) 25
notice of appeal (child protection) 10
notice of appeal (interlocutory) 15
notice of appeal (costs only) 15
  (3) The notice of motion to set a time and date for the hearing and for directions in an interlocutory, costs only, or child protection appeal must be included in the notice of appeal.
       
Certificate of readiness
90.26 (1) Except as provided in Rule 90.26(4), an appellant must file a certificate of readiness in Form 90.26 in support of the motion for directions no less than four days before the day the motion is to be heard.
  (2) By the certificate of readiness, the appellant or the appellant’s counsel must certify all of the following:
   
(a)
the court appealed from has issued a formal order;
   
(b)
the appellant has a paper copy of the written decision under appeal,
   
(c)
the appellant has ordered copies of the audio recordings from the appropriate court;
   
(d)
the appellant has ordered the transcription of the audio recordings from a certified court reporter;
   
(e)
the appellant has been informed by the certified court reporter that the transcription will be completed by a specified date;
   
(f)
the appellant will be able to file the appeal book by a specified date;
   
(g)
the appellant has sent a copy of the notice of appeal to the judge or, in a tribunal appeal, to the tribunal, from whose decision the appeal is taken.
  (3) If no written decision is filed with the registrar, the appellant or the appellant’s counsel must undertake to send a copy of the transcribed oral decision to the judge or tribunal appealed from as soon as it is received from the court reporter.
  (4) An appellant who is unable to comply with Rule 90.26(1) must file an affidavit in support of the motion for directions, explaining the omission.
       
Motion by respondent for directions
90.27 (1) A respondent in an appeal may make a motion to a judge of the Court of Appeal to set the time and date for the appeal to be heard and for directions for the appeal, including as to the appeal book and factums to be filed by the parties.
  (2) A notice of motion for a date and directions must be filed no less than four days before the day of the hearing.
       
Registrar’s request for documents
90.28 (1) The registrar on the filing of a notice of appeal, other than an appeal as to costs only or a tribunal appeal, must as soon as possible request the prothonotary or clerk of the court appealed from to transmit to the registrar the pleadings, documentary exhibits, and other papers in the proceeding being appealed and a list of any exhibits that are not documents.
  (2) A judge of the Court of Appeal may direct a tribunal to deliver to the registrar a transcript, exhibit, or other document for use on the appeal.
  (3) The prothonotary, clerk of the court, or tribunal who receives a request from the registrar or a direction of a judge of the Court of Appeal must comply with the request or the direction as soon as practicable.
       
Obtaining transcript
90.29 (1) An appellant who appeals from a decision or order of a court or judge must request a copy of the audio recording of the proceeding from the prothonotary or clerk of the court appealed from, and pay the prescribed fee to the prothonotary or clerk.
  (2) The prothonotary or clerk, on receipt of the prescribed fee from the appellant, must provide the appellant with an audio recording of the entire hearing of the proceedings, including evidence, the oral submissions and all oral rulings and decisions.
  (3) An appellant who appeals from a decision or order of a tribunal must request a copy of the entire record of the proceedings before the tribunal and pay the prescribed fee for the copy to the tribunal.
  (4) The tribunal or other person or body that holds the record must, on receipt of the request and the prescribed fee from the appellant, provide the appellant with a copy of the entire record of the proceedings, including all rulings and decisions.
  (5) The appellant must cause a transcript of the proceeding to be prepared by a certified court reporter, unless legislation provides otherwise or a judge permits otherwise.
       
Appeal book
90.30 (1) An appellant must do both of the following unless a judge of the Court of Appeal permits otherwise:
   
(a)
file five copies of the appeal book for the use of the Court of Appeal;
   
(b)
deliver a copy of the appeal book to each respondent.
  (2) An appeal book must be in the format required by Rule 90.30(3) and consist of the following two parts, containing all of the following in each part, unless a judge of the Court of Appeal directs otherwise:
   
(a)
Part 1 - Pleadings and Related Documents:
     
(i)
a table of contents describing each document,
     
(ii)
a copy of the notice of appeal and any notice of cross-appeal or respondent’s notice of contention,
     
(iii)
a copy of the order or decision appealed from,
     
(iv)
a copy of the pleadings, including any particulars,
     
(v)
a reference sheet containing the heading and file number of the proceeding under appeal, the name of the judge, and the dates of the hearing and of the decision in the court appealed from;
   
(b)
Part 2 - Evidence and Related Materials:
     
(i)
an index of witnesses describing each witness, including the name of the witness, the party who called the witness, and the page reference in the appeal book where the direct examination, cross-examination, or re-direct examination begins,
     
(ii)
a list of all exhibits,
     
(iii)
a copy of the transcript of everything said in the course of the proceedings under appeal, including all of the following:
       
(A)
a headline on each page stating the name of the witness and whether it is direct examination, cross-examination, or redirect examination;
       
(B)
unless the individual lines of transcript are numbered, the questions must be numbered consecutively, and each question to be preceded by the letter “Q” and each answer by the letter “A”;
       
(C)
a copy of any written submissions and the transcript of submissions made,
     
(iv)
a copy of each document or electronic information admitted into evidence, indexed and numbered as at the trial, including a statement of facts, affidavit, written admission, or discovery transcript, if it is not reproduced in the transcript of evidence,
     
(v)
a statement of facts agreed to by the parties instead of any part or all of the transcript, document, electronic information required by Rules (iii), (iv),
     
(vi)
a copy of any charge to the jury, certified by the trial judge to be accurate.
  (3) An appeal book referred to in Rule 90.30(2) must be in a format that conforms with all of the following:
   
(a)
be printed double-spaced on letter size paper with printing on both sides of the paper and page numbering in the upper right corner of odd-numbered pages and the upper left corner of even-numbered pages;
   
(b)
be bound with a plastic coil binder, divided into a separate volume for each Part, unless Part 2 is not lengthy;
   
(c)
use a typing font of no less than twelve point, and be left-side justified, so as to be consistent with the format in these Rules;
   
(d)
for the transcript,
     
(i)
have margins for each page of transcript that are two inches on the bottom of the page and one inch on the top and sides of the page, and
     
(ii)
use a typing font of no less than twelve point;
   
(e)
have a cover that is grey and has marked on it the short title of the appeal, and each volume have marked on it its number and the number of each Part, and if a Part contains more than one volume, have each volume repeat the table of contents and show on its cover the page numbers contained in it;
   
(f)
All pages of the appeal book must be numbered consecutively starting at page 1. However, if the transcript is bound in a separate volume, the pages of the transcript may have separate page numbering starting at page 1. If there is more than one transcript, each transcript must be either in a separate volume or separated by tabs within one volume.
  (4) Parties to an appeal may make an agreement to avoid the expense or delay of reproducing material unnecessary for the appeal by abridging all or part of the transcript of evidence or of any other material otherwise required to be included in the appeal book, or substituting an agreed statement of facts instead of a transcript or exhibit.
  (5) A party may make a motion to a judge of the Court of Appeal for an order abridging a requirement for the form or content of the appeal book.
  (6) An appellant must file an electronic copy of the transcript in a format satisfactory to the registrar, in addition to filing paper copies, unless the registrar or a judge of the Court of Appeal orders otherwise.
  (7) An appeal book may not be filed by fax.
       
Appeal book - appeal as to costs only
90.31   An appeal book in an appeal as to costs only must be in the format required by Rule 90.30(3) and consist of all of the following, unless a judge of the Court of Appeal directs otherwise:
   
(a)
a table of contents describing each document;
   
(b)
a copy of the notice of appeal;
   
(c)
a copy of the order and decision appealed from;
   
(d)
a copy of the pleadings, including any particulars;
   
(e)
any offers to settle, exhibits and evidence relevant to the appeal;
   
(f)
a reference sheet containing the heading and file number of the matter appealed, the name of the judge, and the date of the hearing and of the decision in the court below;
   
(g)
a transcript of submissions made.
       
Factum
90.32 (1) An appellant must do both of the following no more than ten days after the day the appeal book is delivered, or when a judge of the Court of Appeal directs:
   
(a)
file five copies of a factum for the use of the Court of Appeal;
   
(b)
deliver a copy of the factum to each respondent.
  (2) A respondent must do both of the following no more than ten days after the day the appellant’s factum is delivered, or when a judge of the Court of Appeal directs:
   
(a)
file five copies of a factum for the use of the Court of Appeal;
   
(b)
deliver a copy of the factum to each other party.
  (3) A factum must be in the format required in Rule 90.32(4) and consist of all of the following parts and appendices:
   
(a)
Part 1 - Concise Overview of the Appeal;
   
(b)
Part 2 - Concise Statement of Facts;
   
(c)
Part 3 - List of Issues;
   
(d)
Part 4 - Standard of Review for each Issue;
   
(e)
Part 5 - Argument (containing a summary of the submissions on each issue);
   
(f)
Part 6 - Order or Relief Sought (including any order as to costs);
   
(g)
Appendix A - List of Citations referred to in Part 5;
   
(h)
Appendix B - Statutes and Regulations (include the text of relevant statutory provisions).
  (4) A factum referred to in Rule 90.32(3) must be in a format that conforms with all of the following:
   
(a)
be printed in no less than a twelve point font, double-spaced on letter size paper with printing on one side of the paper only with the typed pages to the left;
   
(b)
include a table of contents for the Parts and Appendices;
   
(c)
have each page numbered consecutively, after the table of contents;
   
(d)
have each paragraph numbered consecutively;
   
(e)
if an authority cited in the factum is reproduced in the book of authorities, refer to the authority by its tab number or letter used in the book of authorities;
   
(f)
for the appellant’s factum, have a cover that is coloured buff or yellow, and for the respondent’s factum, including a cross-appellant’s factum, have a cover that is coloured green or blue;
   
(g)
not exceed forty pages in length, excluding the appendices, unless a judge of the Court of Appeal permits otherwise.
  (5) A respondent who cross-appeals or files a notice of contention on a matter not conveniently covered by the respondent’s factum must file and deliver with their factum a second factum, and the appellant who wishes to submit a factum in response must file and deliver their factum no later than five days after the day the respondent’s factum is delivered.
  (6) Every party to an appeal must, unless the registrar or a judge of the Court of Appeal orders otherwise, file an electronic copy of the factum in a format satisfactory to the registrar, in addition to filing a paper copy.
  (7) A factum may not be filed by fax.
       
Book of authorities
90.33 (1) A party to an appeal who wishes to rely on authorities in argument, such as a judicial decision or a scholarly article, must file five copies of a book of authorities at the same time that the party files a factum, unless the parties have agreed to file a joint book of authorities.
  (2) Parties must make best efforts to agree on, prepare, and file a joint book of authorities. Five copies of a joint book of authorities must be filed at the same time that the respondent’s factum is filed.
  (3) An intervenor who files a book of authorities must not duplicate anything included in the appellant’s or respondent’s book of authorities.
  (4) A book of authorities must have all of the following:
   
(a)
a cover that contains the title “Book of Authorities”;
   
(b)
a secure binding;
   
(c)
a table of contents identifying each authority;
   
(d)
a copy of each authority cited in the party’s factum in alphabetical order and marked with a tab numbered or lettered consecutively;
   
(e)
numbered pages only if the authority does not clearly provide its own page numbering;
   
(f)
excerpts of authorities to be relied on indicated by page or paragraph references, and highlighted by underlining the relevant passage or marking the passage in the margin of the text.
  (5) The entire table of contents must be included in each volume if the authorities are contained in more than one volume.
       
Motions
90.34 (1) A party may make either of the following kinds of motions:
   
(a)
a motion to the Court of Appeal, in accordance with Rule 90.36;
   
(b)
a motion to a judge of the Court of Appeal, in accordance with Rule 90.37.
  (2) A notice of motion to the Court of Appeal and a notice of motion to a judge of the Court of Appeal must include all of the following:
   
(a)
a concise statement of the grounds for the motion;
   
(b)
a reference to the Rule or statute under which the motion is brought;
   
(c)
a statement describing the proposed order;
   
(d)
the time and date when, and the place where, the motion is to be heard;
   
(e)
a reference to each affidavit relied on by the party making the motion, identified by the name of the affiant and either the date it was sworn or affirmed to or a brief description of its contents;
   
(f)
a statement that the other party may file an affidavit or a brief, and attend the hearing of the motion;
   
(g)
a warning that an order may be made if the other party does not attend.
  (3) A reference in this Rule 90 to a motion to the Court of Appeal means a motion under Rule 90.36, unless the Rule making the reference provides otherwise.
  (4) A reference in this Rule 90 to a motion to a judge of the Court of Appeal means a motion under Section 90.37, unless the Rule making the reference provides otherwise.
  (5) A person who wishes to make a motion must make the motion on notice, unless they satisfy the Court of Appeal or a judge of the Court of Appeal that it is properly made ex parte.
  (6) The Civil Procedure Rules governing motions in the Supreme Court of Nova Scotia, that are not inconsistent with Rule 90, apply to motions in the Court of Appeal, as are required for the orderly conduct of the motion.
       
Motion by correspondence
90.35 (1) A party may make a motion to a judge by delivering correspondence in any of the following circumstances:
   
(a)
the party seeks an adjournment or dismissal of an ex parte motion made by the party;
   
(b)
with the consent of the other parties, the party seeks an adjournment or dismissal of a motion made on notice;
   
(c)
the party moves for a consent order;
   
(d)
if the respondent consents to the motion being made by correspondence;
   
(e)
a judge permits a motion to be made by correspondence to that judge.
  (2) A party who wishes to have a motion decided on the basis of correspondence other than in the circumstances provided for in Rule 90.35(1) must make a request in the notice of motion.
  (3) A respondent who receives a notice of motion that requests that the motion be decided on the basis of written correspondence must do either of the following:
   
(a)
if the respondent does not object to disposition of the motion in writing, respond in writing to the notice of motion;
   
(b)
if the respondent objects to disposition of the motion in writing, indicate in their brief the reasons why the motion should not be disposed of in writing.
  (4) A moving party who receives the respondent’s response in writing may file written representations in reply no later than four days after the day the respondent’s response in writing is delivered.
  (5) A judge of the Court of Appeal may give directions for the disposition of a motion in writing, dispose of the motion on the basis of the written submission, or fix a time and date for an oral hearing of the motion.
       
Motion to the Court of Appeal
90.36 (1) A motion may be made to the Court of Appeal, in accordance with this Rule 90.36.
  (2) A motion may be made to the Court of Appeal in any appeal or other matter in which a motion may be made to the Court of Appeal by notice, application, motion, petition, or otherwise under this Rule 90.36, another Rule in these Rules, any other Rules, the Supreme Court Act (Canada), or other legislation.
  (3) A person who intends to make a motion to the Court of Appeal must first make a motion for a date and directions to a judge in accordance with Rule 90.25.
       
Motion to a judge of the Court of Appeal
90.37 (1) A motion to a judge of the Court of Appeal may be made or responded to, in accordance with this Rule 90.37.
  (2) A judge of the Court of Appeal has and may exercise any power necessary to deal with a motion made to the judge under this Rule 90.37 or any other Rule, or other legislation.
  (3) A motion to a judge of the Court of Appeal, whether required to be made by notice, application, motion, petition, or otherwise, must be made by filing a notice of motion.
  (4) A brief of the points of argument, including a list of authorities relied on must be filed with the notice of motion.
  (5) A notice of motion to a judge of the Court of Appeal, with draft order, any affidavit, memorandum, and other supporting material, must be filed and delivered no later than four days before the date of the hearing of the motion, or such other time required by the Rule or legislation authorizing the motion.
  (6) A party opposing a motion may file and deliver any affidavit or brief no less than two days before the date of the hearing of the motion, unless a judge otherwise orders.
  (7) A motion must be heard by a chambers judge of the Court of Appeal designated from time to time by the Chief Justice.
  (8) Uncontested motions and motions for dates and directions may be made by telephone conference by making prior arrangements with the Deputy Registrar of the Court of Appeal.
  (9) Contested motions may be heard by telephone with leave of the Chambers judge.
  (10) A motion must be heard in chambers at the Law Courts at Halifax every Thursday at ten o’clock in the morning, unless a judge of the Court of Appeal otherwise permits.
  (11) A motion may be made ex parte in one of the following circumstances:
   
(a)
legislation or a Rule permits the motion to be made ex parte;
   
(b)
the other party waives notice in writing or consents to the proposed order;
   
(c)
the judge authorizes the motion to be made ex parte;
  (12) A judge of the Court of Appeal hearing a motion, in addition to any other powers, may order any of the following:
   
(a)
a notice of motion be delivered to a person as the judge directs and a hearing be adjourned to permit the delivery;
   
(b)
delivery of notice on a person be dispensed with;
   
(c)
a motion be adjourned, continued, or dismissed if a person who ought to have received delivery did not receive delivery;
   
(d)
the motion be referred to the Court of Appeal for hearing and disposition;
   
(e)
a particular requirement of a form be dispensed with;
   
(f)
counsel be appointed to represent a party to an appeal under the Children and Family Services Act, where the Court of Appeal is authorized to do so;
   
(g)
a person detaining a party to bring the party before the Court of Appeal for the hearing of a motion or of the appeal or for any other business the person has with the Court of Appeal;
   
(h)
that any time prescribed by this Rule 90 be extended or abridged before or after the expiration thereof.
  (13) The hearing of a motion under Rule 90.36 or 90.37 is conducted in accordance with the procedures and rules of evidence set out in Part 6 - Motions.
  (14) A judge of the Court of Appeal may order costs of a motion be paid by a party to another party.
  (15) A judge of the Court of Appeal, on motion, may make an order to do any of the following, until the Court of Appeal provides a further order:
   
(a)
allow the use of pseudonyms in the pleadings;
   
(b)
impose a publication ban;
   
(c)
require a sealing of a court file;
   
(d)
require a hearing to be in camera.
       
Review of order of judge
90.38 (1) In this Rule 90.38,
   
(a)
a reference to the “Chief Justice” includes a judge designated by the Chief Justice for the purpose of this Rule;
   
(b)
“party” includes an intervenor under Rule 90.19.
  (2) An order of a judge of the Court of Appeal in chambers is a final order of the Court of Appeal, subject only to review under this Rule 90.38.
  (3) An order of a judge in chambers that disposes of an appeal may be reviewed by a panel of the Court of Appeal, with leave of the Chief Justice.
  (4) A party who requests leave to review an order of a judge must file a notice of motion for leave to review with the Chief Justice and deliver the notice to the other parties to the appeal, no more than seven days after the date of the order to be reviewed.
  (5) A party who opposes a motion for leave to review must file with the Chief Justice, and deliver to the other parties, a reply no more than seven days after the date of the filing of the motion for leave to review.
  (6) The Chief Justice may do any of the following on a motion for leave to review:
   
(a)
dismiss the motion for leave to review;
   
(b)
set the motion down for hearing;
   
(c)
grant leave to review the order of the judge in chambers if the Chief Justice is satisfied that the judge acted without authority under the rules, or the order is inconsistent with an earlier decision of a judge in chambers or the Court of Appeal, or that a hearing by a panel is necessary to prevent an injustice.
  (7) The Chief Justice need not give reasons for the determination of a motion under this Rule.
  (8) If leave is granted, the Chief Justice must set a time and date for the hearing of the review before a panel of the Court of Appeal and give directions for the filing of factums and other material.
  (9) A judge may not sit as a member of the panel of the Court of Appeal hearing an appeal from the judge’s order.
  (10) An order granting leave to appeal under this Rule 90.38 is a final order of the Court of Appeal and is not subject to further review.
       
Amending notice of appeal
90.39 (1) A party may amend a notice of appeal, notice of cross-appeal, or notice of contention no more than fifteen days after the day the notice is filed.
  (2) A judge of the Court of Appeal may permit a party to amend a document filed at any time.
  (3) An amended document must be filed and served immediately after it is amended.
       
Setting aside or dismissing an appeal summarily
90.40 (1) A judge of the Court of Appeal may set aside a notice of appeal if it fails to disclose any ground for an appeal.
  (2) A judge of the Court of Appeal may dismiss an appeal if the appeal is not conducted in compliance with this Rule 90 for any reason, such as, failing to comply with Rules respecting any of the following:
   
(a)
the form of the notice of appeal,
   
(b)
notifying a person of the appeal,
   
(c)
making a motion for directions,
   
(d)
setting the appeal down for a hearing,
   
(e)
filing the certificate of readiness.
  (3) On a motion for which seven days notice has been given to the appellant, a judge of the Court of Appeal may dismiss an appeal if it is demonstrated that no appeal lies to the Court of Appeal.
  (4) A judge of the Court of Appeal hearing a motion to set aside a notice of appeal or dismiss an appeal may give directions on the appeal, order costs, or require the defaulting party to indemnify each other party for the expenses caused by the default.
       
Stay of execution
90.41 (1) The filing of a notice of appeal shall not operate as a stay of execution or enforcement of the judgment appealed from.
  (2) A judge of the Court of Appeal on application of a party to an appeal may, pending disposition of the appeal, order stayed the execution and enforcement of any judgment appealed from or grant such other relief against such a judgment or order, on such terms as may be just.
  (3) Interest for such time as execution may be delayed by an appeal shall be allowed on the judgment in accordance with the Interest on Judgments Act from the filing of the notice of appeal, unless ordered otherwise by the Court of Appeal or a judge of the Court of Appeal, and the interest shall be added to the judgment on execution without an order for that purpose.
  (4) This Rule 90.41 does not prevent the staying of execution or proceedings by the court appealed from, as authorized by a Rule or legislation.
  (5) An appellant who obtains a stay under this Rule 90.41 may obtain a certificate from the registrar stating that a stay of execution and enforcement has been granted and deliver the certificate to the sheriff.
  (6) A sheriff who receives a certificate must cease enforcement of the order under appeal.
  (7) An appellant who delivers a certificate to a sheriff who ceases enforcement must pay the outstanding sheriff’s fees and the payment may be allowed as part of the costs of the appeal.
  (8) A stay of execution and enforcement stays other processes to enforce the order appealed from, other than the taxation of costs in the proceeding and the recording of the judgement in the Registry of Deeds, unless ordered otherwise by the Court of Appeal or a judge of the Court of Appeal.
       
Security for costs
90.42 (1) A judge of the Court of Appeal may, on motion of a party to an appeal, at any time order security for the costs of the appeal to be given as the judge considers just.
  (2) A judge of the Court of Appeal may, on motion of a party to an appeal, dismiss or allow the appeal if an appellant or a respondent fails to give security for costs when ordered.
       
Appellant failing to perfect appeal
90.43 (1) In this Rule 90.43 a "perfected appeal" means one in which the appellant has complied with the Rules as to each of the following:
   
(a)
the form and service of the notice of appeal;
   
(b)
applying for a date and directions in conformity with Rule 90.25;
   
(c)
filing the certificate of readiness in conformity with Rule 90.26;
   
(d)
the ordering of copies of the transcript of evidence, in compliance with Rule 90.29;
   
(e)
filing and delivery of the appeal book and of the appellant's factum.
  (2) A respondent in an appeal not perfected by an appellant may make a motion to a judge to set down the appeal for hearing or, if five days notice is given to the respondent, to dismiss the appeal.
  (3) In an appeal not perfected before 80 days from the date of the filing of the notice of appeal, or before any other time ordered by a judge, the registrar must make a motion to a judge for an order to dismiss the appeal on five days notice to the parties.
  (4) A judge, on motion of a party or the registrar, may direct perfection of an appeal, set the appeal down for hearing, or, on five days notice to the parties, dismiss the appeal.
       
Quashing or dismissing appeal
90.44 (1) A party to an appeal may make a motion to the Court of Appeal at any time before or at the hearing of the appeal for an order setting aside the notice of appeal or dismissing the appeal on either of the two following grounds:
   
(a)
the appeal is frivolous, vexatious, or without merit;
   
(b)
the appellant has unduly delayed perfection of the appeal.
  (2) A party who makes a motion for an order setting aside the notice of appeal or dismissing the appeal must, no later than fifteen days after the day the notice of motion is filed, make a motion to a judge in chambers for directions on the motion for an order to set aside or dismiss, including setting a date to hear the motion and as to the record and written submissions to be filed by the parties.
       
Management of appeal
90.45 (1) The Chief Justice may appoint a judge of the Court of Appeal, or a panel of judges of the Court of Appeal, to assist in the management of an appeal.
  (2) A party may request the appointment of an appeal management judge, or panel of judges, by filing a request with the registrar.
  (3) An appeal management judge, or panel of judges, may give directions that are consistent with this Rule 90 and determine motions.
  (4) Directions may be given and motions may be heard in conference, by correspondence, in chambers, by teleconference, or otherwise, as the appeal management judge, or panel of judges, decides.
  (5) The following are examples of subjects that may be dealt with in judicial management of an appeal:
   
(a)
setting tasks and deadlines to complete all steps to the hearing of the appeal;
   
(b)
settling the order of argument;
   
(c)
limiting the time allocated to each party for argument;
   
(d)
settling the issues to be argued and determined;
   
(e)
scheduling motions before the hearing of the appeal.
  (6) Directions may be varied on motion.
  (7) An appeal management judge may direct that the conference be recorded by the Court of Appeal.
  (8) An appeal management judge or a panel may make an order after a conference that does any of the following:
   
(a)
records the subjects discussed, and agreements made, at the conference;
   
(b)
records directions given at the conference, or gives further directions;
   
(c)
gives effect to a ruling on an issue relating to the appeal book or a factum, or procedure for an upcoming hearing submitted to the judge at the conference with the consent of the parties.
  (9) An appeal management judge who determines relief must do so by order if a party seeks relief from compliance with these Rules, and an order is required.
       
Discontinuing appeal
90.46 (1) A party may discontinue an appeal or cross-appeal by filing a notice of discontinuance.
  (2) On filing the notice of discontinuance, the appeal or cross-appeal is at an end and the other party is entitled to costs of the appeal or cross-appeal, unless a judge orders otherwise.
       
Giving evidence to the Court of Appeal
90.47 (1) The Court of Appeal, on the motion of a party, may on special grounds authorize evidence to be given to the Court of Appeal on the hearing of an appeal on any question as it directs.
  (2) The evidence may be given through oral examination before the Court of Appeal or by affidavit or deposition, or as the Court of Appeal directs.
  (3) The Court of Appeal on an appeal may on special grounds inspect or view any place, property or thing.
       
Powers of the Court of Appeal
90.48 (1) Without restricting the generality of the jurisdiction, powers and authority conferred on the Court of Appeal by the Judicature Act or any other legislation the Court of Appeal may do all of the following:
   
(a)
amend, set aside, or discharge a judgment appealed from;
   
(b)
draw inferences of fact and give any judgment, allow any amendment, or make any order that might have been made by the court appealed from or that the appeal may require;
   
(c)
make such order as to costs of the trial, hearing, or appeal as the Court of Appeal considers is in the interest of justice;
   
(d)
direct a new trial by jury or otherwise, on terms the Court of Appeal considers is in the interest of justice, and for that purpose order that the judgment appealed from be set aside;
   
(e)
make any order or give any judgment that the Court of Appeal considers necessary.
  (2) The Court of Appeal may set aside all or part of a judgment appealed from, although only part is under appeal, and it may grant an order in favour of a person who does not request the relief.
  (3) On or after hearing an application for leave to appeal in which the Court of Appeal decides to grant leave and the merits of the appeal have been fully argued, the Court of Appeal may decide the appeal without further argument.
       
Delivery of judgment by Court of Appeal
90.49 (1) The Court of Appeal may deliver judgment disposing of an appeal in open court when the hearing concludes and give reasons then or later.
  (2) A judgment of the Court of Appeal in open court must be pronounced by the Chief Justice or other judge at the hearing.
  (3) The Court of Appeal, on reserving judgment on an appeal, must later file written reasons for judgment after all the presiding judges have, subject to Section 36 of the Judicature Act, written or concurred in reasons for judgment.
  (4) A judgment of the Court of Appeal with written reasons is taken to have been made on the date of filing the judgment.
  (5) If the Court of Appeal is equally divided in a judgment with written reasons, the appeal must be dismissed.
  (6) The registrar must, without charge, deliver a copy of the reasons given in writing or given orally and later reduced to writing to each party, the court appealed from, libraries and other persons as the Chief Justice authorizes in the particular case or generally, and to other persons on payment of a charge that may be set from time to time.
       
Formal order of Court of Appeal
90.50 (1) When the Court of Appeal delivers judgment, the registrar must immediately do both of the following:
   
(a)
with the approval of the judge presiding on the appeal, settle, sign, and enter a formal order of judgment that shows the date on which the judgment was delivered, and provides for the disposition of the appeal as directed by the Court of Appeal;
   
(b)
deliver a copy of the order to each party and the court appealed from.
  (2) The judge of the Court of Appeal who approves the formal order of judgment, or another judge on motion of a party, may amend the formal order to correct any errors or omissions, or otherwise better express its intent, or may refer the formal order to the Court of Appeal for amendment as the Court of Appeal considers appropriate.
  (3) An amended order must show the date of amendment but is effective from its original date unless a judge of the Court of Appeal orders otherwise.
  (4) The registrar must sign and enter the amended order and deliver a copy of it to each party and to the court appealed from.
  (5) When the judgment appealed from is reversed and the judgment ordered on appeal provides for payment of money, it must bear interest from the day the judgment is reversed.
       
Costs in tribunal appeal
90.51   No costs may be ordered paid by or to a party in a tribunal appeal unless the Court of Appeal orders otherwise.
       
Disposition of files after appeal
90.52   After an appeal, the registrar must do both of the following:
   
(a)
preserve the appeal book, factums, other appeal documents and orders;
   
(b)
unless the Court of Appeal or a judge of the Court of Appeal orders otherwise, return to the court appealed from all files and exhibits after the time has expired for appeal or application for leave to appeal to the Supreme Court of Canada unless the matter is appealed to that court in which case the registrar must comply with the Rules of that court.
       
Entry by prothonotary of certified order
90.53 (1) When an order of the Court of Appeal has been certified by the registrar to the prothonotary or clerk with whom the order appealed from was entered, the prothonotary or clerk must cause it to be filed, and all subsequent proceedings may be taken as if the certified order had been granted by the court appealed from.
  (2) When an order of the Supreme Court of Canada has been certified by the registrar of that Court to the prothonotary or clerk with whom the order initially appealed from was entered, the prothonotary or clerk must cause it to be filed, and all subsequent proceedings may be taken as if the certified order had been granted by the court initially appealed from.
       

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