RULE 11
DEFENCES; FILING AND SERVICE; SETTING ASIDE ORIGINATING NOTICE
The defence
11.01. (1) A defence shall be in Form 11.01A and shall specify,
(a) the defendant's place of residence; and(b) the name and business address of his solicitor, or if he has no solicitor or place of residence within the jurisdiction, an address for service within the jurisdiction.
(2) When a defendant fails to give an address for service or gives an address for service that is not genuine, the court may set aside the defence. [E. 12/3]
Filing a defence
11.02.
(1) Except as provided for in rule 14.24(3), when a defendant is served with
an originating notice (action) in Form 9.04A the defendant shall
(a) within twenty (20) days after service of the statement of claim where the defendant is served in Nova Scotia;
(b) within forty (40) days after service of the statement of claim where the defendant is served elsewhere in Canada or in the United States of America; or
(c) within sixty (60) days after service of the statement of claim, where the defendant is served anywhere else,
file a defence and copy in the office of the prothonotary out of which the notice was issued.
[Amend. 29/11/96; 06/01]
(2) A defendant, that is a body corporate, shall file its defence by a solicitor or a duly authorized officer resident in the province. [E. 12/1(2)]
[Amend. 29/11/96]
(3) Two or more defendants, who defend by the same solicitor, need file only one defence. [E. 12/1(4)]
Duty of prothonotary on filing defence
11.03. Upon receipt of a defence and copy, the prothonotary shall,
(a) insert on the defence and copy, the file number and date of filing,(b) file the defence in his office, and
(c) return to the defendant the copy of the defence which shall bear the following certificate completed by the prothonotary or with his authority, [Amend. 6/90]
CERTIFIED COPY OF DEFENCE
I certify this is a true copy of the within defence filed in my office at , Nova Scotia, on the day of , 19 .
PROTHONOTARY (Seal)
Service of defence
11.04. A defendant shall serve the certified copy of the defence on the plaintiff on the same day he receives it from the prothonotary, by delivering it or by posting it by mail. [E. 12/4]
Application to set aside originating notice, etc.
11.05. A defendant may, at any time before filing a defence or appearing on an application, apply to the court for an order,
(a) setting aside the originating notice or service thereof on him;(b) declaring that the originating notice has not been duly served on him;
(c) setting aside any order giving leave to serve the originating notice on him elsewhere than in Canada or one of the states of the United States of America;
(d) extending the time for filing a defence or appearing on an application;
and the application shall not be deemed to be a submission to the jurisdiction of the court. [E. 12/8]
FORM 11.01a
DEFENCE
(rule 11.01)
[Insert title of originating notice]
TO THE PROTHONOTARY AND PLAINTIFF(S)
TAKE NOTICE that the Defence attached hereto is filed by the defendant whose address for service is __________ Street,
Nova Scotia, and who is defending [by , Solicitor for the defendant] [in person]. [Amend. 6/97]
AND FURTHER TAKE NOTICE that the address of the solicitor for the defendant is Street, , Nova Scotia, telephone/fax number , at which address service of documents in this proceeding may be served as effectively as if served upon the defendant personally.
[Where the defendant has no solicitor or place of residence within the province, give an address within the jurisdiction for service on the defendant].
DEFENCE
1. [Set out each allegation of the statement of claim that the Defendant admits.]
2. [Set out the allegations of fact in support of the defence of the defen- dant].
3. [Set out the allegations of law in support of the defence of the Defendant.]
COUNTERCLAIM
4. [Set out allegations in support of a counterclaim.]
Filed this ________________ day of ____________ , 19 _____ .
(signed) O.P., of
__________________ Street
___________, Nova Scotia,
_______________________
telephone/fax number
Solicitor for the Defendant.
TO: M.N., of
_____________ Street
_____________ , Nova Scotia,
_____________ , telephone/fax number
Solicitor for the Plaintiff.
[Amend. 29/11/96]
RULE 12
DEFAULT OF DEFENCE
Default of defence: Liquidated demands, damages, detention, etc.
12.01.
(1) Where an originating notice contains any one of the claims mentioned in
paragraph (2) and a defendant fails to file a defence thereto within the time
prescribed by rule 11.02 or within such time as the court may order, the plaintiff
may enter judgment against the defendant and continue the proceeding against
any other defendant.
[Amend. 06/01]
(2) The judgment may be for costs, and
(a) where a claim is for a liquidated demand only, for a sum not exceeding the claim, and where part of the claim is for interest at an unspecified rate, then for an additional sum for the interest to the date of entering judgment at the rate of six per cent (6%) per annum;[Amend. 12/12/74](b) where a claim is for unliquidated damages only, for damages to be assessed;
(c) where a claim relates to the detention of goods only, for the delivery of the goods or their value to be assessed;
(d) where a claim is for the possession of land only, for possession of the land, provided if there is more than one defendant judgment shall not be enforced against any defendant until judgment for possession of the land has been entered against all the defendants. [E. 13/1/2/3/4]
(3) Where interlocutory judgment is entered and the damages or value of the goods are assessed and costs taxed, a final judgment may be entered for the recovery of the damages, or the delivery of the goods or their value as assessed, and costs as taxed.
Default of defence: Mixed claims
12.02. Where an originating notice issued against any defendant is indorsed with two or more of the claims mentioned in rule 12.01 and no other claim and the defendant fails to file a defence, the plaintiff may, after the time limited for defending, enter against the defendant such judgment in respect of each such claim that he would be entitled to enter under those rules as if it was the only claim indorsed on the originating notice and continue the proceeding against the other defendants, if any. [E. 13/5]
Default of defence: Other claims
12.03.
(1) Where an originating notice issued against any defendant is indorsed with
any claim not mentioned in rule 12.01, or any of the claims mentioned in rule
12.01 together with any other claim and the defendant, or all the defendants
if there is more than one, fails or fail to file a defence or appear on the
hearing under the originating notice, the plaintiff may, after the expiration
of the time limited for defending or appearing apply to the court for judgment
and the court shall give such judgment as is just. [Amend. 12/12/74]
(2) Where the plaintiff makes such a claim as is mentioned in paragraph (1) against more than one defendant, and any defendant makes default as mentioned in that paragraph and any other defendant defends or appears, the plaintiff may,
(a) when his claim against any defendant in default is severable from his claim against the other defendants, apply under that paragraph for judgment against the defendant in default and continue the proceeding against any other defendant;(b) set the proceeding down for judgment against the defendant in default when the proceeding is set down for trial or hearing against any other defendant. [E. 19/7]
Default of defence: In mortgage actions
12.04.
(1) Where an originating notice contains a claim in respect of a mortgage
and a defendant fails to file a defence, the plaintiff on the application
for foreclosure or foreclosure, sale and possession, shall:
(b) establish by affidavit to the satisfaction of the court that:
(i) the originating notice has been served upon the defendant, or substituted service effected;(ii) the defendant has not filed a defence within the time limited for filing it; and
(iii) the allegations contained in the originating notice are true;
(c) produce a statement of account verified by the affidavit of a person having personal knowledge of the facts, showing in detail all payments which have been made on account of principal, interest and any authorized charges since the date of the mortgage, the latest renewal or the latest assumption, whichever is latest, and the dates of the payments, and containing such other proof as the circumstances of the proceeding require, to entitle the plaintiff to the order applied for; provided that
(i) where a statement of account or a settlement, which has been agreed in writing by any person then liable on the mortgage, is produced, it shall not be necessary to go farther back than the date thereof;(ii) where the mortgage has been transmitted to an executor, administrator or assignee of the mortgagee, the statement of ac-count up to the date of the transmission may be proved by information and belief on oath or by other proof to the satisfaction of the court, and an affidavit or oath shall not be required from the mortgagee or any intermediate assignee denying any payment to them of the principal or interest. [Amend. 07/95]
(2) On the application, the court may,
(a) require further and better proof of the statement of account when the mortgagor or assignee, or the party entitled to redeem, denies by affidavit or upon oath the correctness of the statement of account;(b) ascertain and determine the amount due to the plaintiff or refer the matter to a referee to take an account; [Amend. 07/95]
(c) where it appears that there are persons other than the defendant, such as subsequent encumbrancers having an interest in the mortgaged property who ought to be present at the taking of the accounts, order the plaintiff or referee to give notice to such persons to attend the taking of the same;
(d) direct a sale of the mortgaged property on such terms as the court thinks fit without previously determining the priorities of encumbrancers or the amount due on their encumbrances;
(e) give such directions as are necessary with respect to continuing the proceeding against any defendant who has filed a defence in the proceeding;
(f) make such other order as is just.
(3) All subsequent accounts may from time to time be taken, subsequent costs taxed and necessary proceedings had for redemption, by any of the parties entitled to redeem the mortgaged property as if specific directions for this purpose were contained in the order made under paragraph (2).
(4) The court may, on the application of a purchaser of mortgaged property at a sale, grant a recovery order at any time to the applicant as a party or intervenor.
Proof on default
12.05.
(1) Judgment on default shall not be entered against a defendant under Rule
12 unless,
(a) an affidavit is filed by or on behalf of the plaintiff proving due service of the originating notice on the defendant; or(b) the plaintiff produces the originating notice indorsed by the defendant's solicitor with a statement that he accepts service of the originating notice on the defendant's behalf.
(2) Where an application is made for an order affecting a defendant who has failed to file a defence or appear on a hearing under an originating notice, the court shall be satisfied in such manner as it thinks fit that the defendant has failed to defend or appear. [E. 13/7]
Setting aside default judgment
12.06. The court may, on such terms as it thinks just, set aside or vary any default judgment entered in pursuance of Rule 12. [E. 13/9]
Demand of notice
12.07. (1) In lieu of filing a defence or appearing on a hearing under an originating notice, a defendant may file and deliver a demand of notice.
(2) Upon receipt of a demand of notice, the plaintiff may proceed as if the defendant had failed to file a defence or appear on the hearing except that,
(a) the defendant, unless it is otherwise ordered, shall be entitled to receive notice of all subsequent steps taken in the proceeding against him; and(b) final judgment may only be obtained on notice to him.
Right of defendant to notice
12.08. Unless the court otherwise orders or a rule otherwise provides, a defendant who fails to defend, appear on the hearing under an originating notice, or deliver a demand of notice, shall not be entitled to receive notice of any subsequent steps taken in the proceeding against him, other than the assessment of damages when ten (10) days notice thereof by ordinary mail shall be given to the defendant.
Default of defence: Counterclaims and third party notice
12.09.
Where a party fails to file a defence to a counterclaim or third party notice,
the provisions of Rule 12, with any necessary modification, shall apply.
RULE 13
SUMMARY JUDGMENT
Application for a summary judgment
13.01. After the close of pleadings, any party may apply to the court for judgment on the ground that:
(a) there is no arguable issue to be tried with respect to the claim or any part thereof;
(b) there is no arguable issue to be tried with respect to the defence or any part thereof; or
(c) the only arguable issue to be tried is as to the amount of any damages claimed.
[Amend. 05/02]
Disposal of application
13.02.
On the hearing of an application under rule 13.01, the court may on such terms
as it thinks just,
(a) give such directions as may be required for the examination of any party or witness, or for the production of any books or document or copy thereof, or for the making of any further inquiries; [E. 14/4(4)](b) grant judgment for any party on the claim or any part thereof; [Amend. 05/02]
(c) impose terms upon the plaintiff, including in particular a stay of execution of any judgment until the determination of the defendant's counterclaim or third party proceeding; [E. 14/3(2)]
(d) allow the defendant to defend the claim or part thereof, either unconditionally or on terms relating to giving security, time, the mode of trial, or otherwise; [E. 14/4(3)]
(e) where the defence is to amount only, order an assessment of the amount or reference or accounting to determine the amount;
(f) give directions as to the trial or hearing of the claim or part thereof; [E. 14/6]
(g) with the consent of all the parties, dispose of the proceeding finally in a summary manner, with or without pleadings or affidavits and without appeal;
(h) where the claim is for the delivery up of a specific article, order the delivery up of the article; [E. 14/9]
(i) where the claim is for the possession of land on the ground of forfeiture for non-payment of rent, grant relief against the forfeiture; [E. 14/10]
(j) award costs; [E. 14/7]
(k) grant any other order or judgment as it thinks just.
Right to continue with residue of proceeding
13.03.
Where a party obtains judgment under rule 13.02, the plaintiff may continue
the proceeding in respect of any remaining part of the claim or any other
claim or against any other defendant. [Amend. 05/02]
Judgment on admission of facts or documents
13.04. The court may grant a summary judgment or order under rule 21.03 on an application based on admission of facts or documents in a pleading or otherwise.
Application to a counterclaim or third party proceeding
13.05. The provisions of this rule shall apply, with any necessary modification, to a counterclaim or third party proceeding to the same extent as if the counterclaim or third party proceeding was a separate proceeding. [E. 14/5]
Setting aside judgment
13.06.
Any judgment given against a party who does not appear at the hearing of an
application under Rule 13 may be set aside or varied by the court on such
terms as it thinks just. [E. 14/11]
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