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Rule 38
Depositions

Examination of person

(1) By consent of the parties or by order of the court, a person may be examined on oath before trial, before an official reporter, or any other person the court may direct, in order that the deposition be available to be tendered as evidence at the trial.

Grounds for order

(2) In exercising its discretion to order an examination under subrule (1), the court shall take into account

(a) the convenience of the person sought to be examined,

(b) the possibility that the person may be unavailable to testify at the trial by reason of death, infirmity, sickness or absence,

(c) the possibility that the person will be beyond the jurisdiction of the court at the time of the trial, and

(d) the expense of bringing the person to the trial.

Subpoena

(3) Where a party is entitled to examine a person under this rule, by serving on that person or a party a subpoena in Form 21, the party may require the person or the party to bring to the examination

(a) any document in the person's possession or power relating to the matters in question in the action, without the necessity of identifying the document, and

(b) any physical object in the person's possession or power which the examining party contemplates tendering at the trial as an exhibit, but the subpoena shall identify the object.

Place of examination

(4) Unless the court otherwise orders, or the parties to the examination consent, an examination under this rule shall take place at the registry nearest to the place where the person to be examined resides.

Application of rule outside British Columbia

(5) So far as is practical this rule applies to the examination of a person residing outside British Columbia, and the court may order the examination of a person in the place and the manner it thinks just and convenient.

Where person willing to testify

(6) If the person to be examined is willing to testify, the order shall be in Form 31 and the instructions to the examiner appointed in the order shall be in Form 32.

Where person not willing to testify

(7) If the person to be examined is unwilling to testify, or if for any other reason the assistance of a foreign court is necessary, the order shall be in Form 33 and the letter of request referred to in the order shall be in Form 34.

Letter of request

(8) Where an order is made under subrule (7), the letter of request shall be sent by the party obtaining the order to the Under Secretary of State for External Affairs of Canada (or, if the evidence is to be taken in Canada, to the Deputy Attorney General for the Province of British Columbia), and shall have attached to it

(a) any interrogatories to be put to the witness,

(b) a list of the names, addresses and telephone numbers of the solicitors or agents of the parties, both in British Columbia and in the other jurisdiction, and

(c) a copy of the letter of request and any interrogatories translated into the appropriate official language of the jurisdiction where the examination is to take place and bearing the certificate of the translator that it is a true translation and giving his or her full name and address.

Filing of undertaking

(9) The solicitor for the party obtaining the order shall file with the Under Secretary of State for External Affairs of Canada (or the Deputy Attorney General for the Province of British Columbia, as the case may be) his or her undertaking to be personally responsible for all the charges and expenses incurred by the Under Secretary (or the Deputy Attorney General, as the case may be) in respect of the letter of request and to pay them on receiving notification of the amount.

Notice of examination

(10) Notice of examination of a person under this rule shall be given by the examining party delivering copies of the subpoena to the person to be examined and to all parties of record not less than 7 days before the day appointed for the examination.

Mode of examination

(11) The examining party shall examine the witness, who shall be subject to cross-examination and re-examination.

Objection to question

(12) If an objection is made to a question put to a witness in an examination under this rule, the question and the objection shall be taken down by the official reporter and the validity of the objection may be decided by the court, which may order the witness to submit to further examination.

Recording of deposition evidence

(13) Unless otherwise ordered, the deposition shall be recorded either by

(a) the official court reporter in the form of questions and answers, or

(b) on videotape or film.

Perpetuating testimony

(14) A person who, under the circumstances alleged by the person to exist, would become entitled, on the happening of any future event, to an estate or interest in property, the right or claim to which cannot by the person be brought to trial or hearing before the happening of the event, may apply by originating application for an order to perpetuate any testimony which may be material for establishing the right or claim by examination under this rule.

Rule 39
Trial

Application

(1) This rule applies to

(a) an action,

(b) an originating application that is transferred to the trial list under Rule 52 (11), and

(c) subject to Rule 60B, the hearing of a divorce proceeding.

When notice of trial may be given

(2) Notice of trial in Form 35 may be delivered by a plaintiff after the time has expired for the delivery of a statement of defence or by any party after the close of pleadings.

Issue of notice of trial

(3) A party may obtain a trial date from the registry where the trial is to be held.

Idem

(4) The court may direct that an action be set down for trial at a particular time and place and that the notice of trial be issued by the registry.

Idem

(5) The notice of trial must be issued from the registry where the writ was issued or to which the proceeding has been transferred for all purposes.

Delivery of notice of trial

(6) Within 7 days after issue of the notice of trial, and not less than 28 days before trial, the notice of trial shall be delivered by the party obtaining it to all other parties of record.

Place of trial

(7) The place of trial shall be the place named in the statement of claim, but the court may order that the place of trial be changed or that the trial be heard partly in one place and partly in another.

Time of trial

(8) The trial shall be heard on the day appointed by the notice of trial or so soon thereafter as may be convenient.

Court may adjourn trial date, etc.

(9) The court may order the adjournment of a trial or fix the date of trial of an action or issue, or order that a trial shall take precedence over another trial.

Duty to inform registry

(10) Each party to an action entered for trial shall give the registry without delay all available information as to the settlement of the action or affecting the estimated length of the trial.

Record for the court

(11)  (a) The party requesting a trial date shall file a record for the court which must contain

(i) the pleadings as amended,

(ii) particulars delivered pursuant to a demand together with the demand made,

(iii) a property and financial statement delivered in a proceeding under Rule 60A,

(iv) a certificate of readiness in Form 36, and

(v) any order made governing the conduct of the trial.

(b) The registrar may direct inclusion in the record of any document he or she thinks necessary or may reject a record which in the registrar's opinion does not contain all the pleadings, contains a document other than those set out in paragraph (a), or is illegible.

(c) Each document referred to in paragraph (a) of this subrule that is required for the record shall contain in the upper right hand corner of the first page of the document

(i) the registry office and number of the proceeding, and

(ii) below the registry office and number, the date that the document was filed, or, where it was not filed, the date that the document was prepared, completed or made.

Idem

(12) The party who obtained the notice of trial shall deliver a copy of the record when delivering the notice of trial under subrule (6).

Amended record

(13) Where a pleading is amended after delivery of the record, the party who obtained the notice of trial, at least one day before the trial, shall file an amended record and deliver a copy to all parties of record.

Direction as to record

(14) Where the court directs that an action be set down for trial under subrule (4), it may also direct one of the parties to prepare, file and deliver a record.

Case management program

(15) Where the certificate of readiness (Form 36) contains an estimate that the trial of the action will be 10 days or longer, no trial date shall be assigned until all parties of record have filed an agreed case management program.

What case management program must contain

(16) The case management program must contain a statement of the following:

(a) what amendments to the pleadings, if any, are contemplated;

(b) whether the joinder of further parties is contemplated, and if so, the particulars;

(c) what discovery procedures have been completed and what further discovery procedures are contemplated;

(d) whether interrogatories or further interrogatories are contemplated;

(e) when all procedures respecting notices to admit facts and the preparation of a statement of agreed facts will be completed;

(f) when all expert witness reports will be exchanged and whether a conference of expert witnesses is contemplated;

(g) a statement of all pre-trial applications that are contemplated;

(h) the basis upon which the estimate of the length of the trial was made;

(i) whether a trial of separate issues before or after the main trial is contemplated;

(j) the advisability of the appointment of an assessor or an expert or of a reference to a special referee or a registrar;

(k) a statement respecting the probability of settlement and the advisability of a settlement conference;

(l) whether a mini-trial on some or all of the issues is likely or advisable;

(m) any other matters that the parties consider will promote expeditious and timely conduct of the proceedings.

Where parties cannot agree

(17) Where the parties cannot agree on the content of a case management program, any party may request that a pre-trial conference be held at a time and place fixed by the registrar.

Judge or master may settle

(18) At a pre-trial conference, a judge or master may

(a) settle the terms of the case management program, and

(b) make any order that may be made under Rule 35 (4).

Trial certificate

(19) Each party of record shall, not less than 14 days before the scheduled trial date, file a trial certificate in Form 37.

What certificate must contain

(20) The trial certificate must contain the following:

(a) a statement that the party filing it will be ready to proceed on the scheduled trial date;

(b) the current estimate of the length of the trial;

(c) a statement certifying that the party has

(i) delivered a notice to admit facts under Rule 31 (7), and

(ii) completed all examinations for discovery.

Service

(21) After filing the trial certificate, the party shall serve it on all other parties of record.

Failure to file

(22) Where no party of record files a trial certificate, the trial shall be removed from the trial list.

Idem

(23) A party who fails to file a completed trial certificate under subrule (19) is not, without leave of the court, entitled to conduct further discovery procedures or to make further interlocutory applications.

Trial without jury generally

(24) Subject to subrule (26), a trial shall be heard by the court without a jury.

Trial without jury in certain proceedings

(25) A trial shall be heard by the court without a jury where it relates to

(a) the administration of the estate of a deceased person,

(b) the dissolution of a partnership or the taking of partnership or other accounts,

(c) the redemption or foreclosure of a mortgage,

(d) the sale and distribution of the proceeds of property subject to any lien or charge,

(e) the execution of trusts,

(f) the rectification, setting aside or cancellation of a deed or other written instrument,

(g) the specific performance of a contract,

(h) the partition or sale of real estate,

(i) the custody or guardianship of an infant or the care of an infant's estate, or

(j) a matter referred to in Rule 10 (1),

Notice requiring jury trial

(26) Subject to subrule (25), a party may require that the trial of an action be heard by the court with a jury by filing and delivering to all parties of record, within 21 days after delivery of the notice of trial and not later than 30 days before trial, a notice in Form 38.

Court may refuse jury trial

(27) Except in cases of defamation, false imprisonment and malicious prosecution, a party to whom a notice under subrule (26) has been delivered may apply

(a) within 7 days for an order that the trial or part of it be heard by the court without a jury on the ground that

(i) the issues require prolonged examination of documents or accounts or a scientific or local investigation which cannot be made conveniently with a jury, or

(ii) the issues are of an intricate or complex character, or

(b) at any time for an order that the trial be heard by the court without a jury on the ground that it relates to one of the matters referred to in subrule (25).

Trial with assessor

(28) The court may at any time order a trial to be heard wholly or partially by the court sitting with an assessor, and the court may fix the remuneration for the assessor and the remuneration shall form part of the costs of the action.

Trial of one question before others

(29) The court may order that one or more questions of fact or law arising in an action be tried and determined before the others, and upon the determination a party may move for judgment, and the court, if satisfied that the determination is conclusive of all or some of the issues between the parties, may grant judgment.

Trial by different modes of trial

(30) The court may order that different questions of fact arising in an action be tried by different modes of trial.

Calculation of amount by officer of the court

(31) In an action in which it appears that the amount to be recovered is substantially a matter of calculation, the court may direct an inquiry, assessment or accounting under Rule 32.

Failure of all parties to appear at trial

(32) Where no party appears when the trial of an action is called, the action shall be struck off the trial list.

Failure of one party to appear at trial

(33) Where a party does not appear when the trial of an action is called, the court may proceed with the trial, including hearing a counterclaim, in the absence of that party.

Court may set aside judgment

(34) The court may set aside a verdict or judgment obtained where a party does not appear at the trial.

Commencement — subrules (15) to (18)

(35) In respect of proceedings commenced before September 1, 1990, subrules (15) to (18) apply only to proceedings where a certificate of readiness had been filed before that date.

Commencement — subrules (19) to (23)

(36) In respect of proceedings commenced before September 1, 1990, subrules (19) to (23) apply only to proceedings where a notice of trial had been issued before that date.

Rule 40
Evidence and Procedure at Trial

Application

(1) This rule applies to all trials other than summary trials under Rule 18A.

Witness to testify orally

(2) Subject to any enactment and these rules,

(a) a witness at a trial of an action shall testify in open court, and

(b) unless the parties otherwise agree, the witness shall testify orally.

Court may vary order

(3) An order made under this rule concerning the mode of proving a fact or document or of adducing evidence may be revoked or varied by a subsequent order made at or before the trial.

Use of transcript of other proceedings

(4) Where a witness is dead, or is unable to attend and testify because of age, infirmity, sickness or imprisonment or is out of the jurisdiction or his or her attendance cannot be secured by subpoena, the court may permit a transcript of any evidence of that witness taken in any proceeding, hearing or inquiry at which the evidence was taken under oath, whether or not involving the same parties to be put in as evidence, but reasonable notice shall be given of the intention to give that evidence.

Transcript for the court

(5) In an action in which evidence or argument is taken down by an official reporter, it shall be the duty of the plaintiff, if required by the court, to furnish it with a certified transcript of the evidence or argument or any portion of it, the costs of which shall form part of the costs of the action, but where payment of the costs of providing a transcript would be a hardship on a party, the court may order that the transcript be prepared at the expense of the Crown.

Use of recording device by counsel

(6) Counsel for a party may use a recording device to record evidence, provided it does not interfere with the trial.

Failure to prove a material fact

(7) Where a party omits or fails to prove some fact material to the party's case, the court may proceed with the trial, subject to that fact being afterwards proved as the court shall direct, and,

(a) if the case is being tried by a jury, the court may direct the jury to find a verdict as if that fact had been proved, and,

(b) unless the court otherwise orders, judgment shall be entered according to whether or not that fact is or is not afterwards proved as directed.

No evidence motion

(8) At the close of the plaintiffs case, the defendant may apply to have the action dismissed on the ground that there is no evidence to support the plaintiffs case.

Idem

(9) A defendant is entitled to make an application under subrule (8) without being called upon to elect whether or not to call evidence.

Insufficient evidence motion

(10) At the close of the plaintiff's case, the defendant may apply to have the action dismissed on the ground that the evidence is insufficient to make out the plaintiff's case.

Idem

(11) Unless the court otherwise orders, an application under subrule (10) may be made only after the defendant has elected not to call evidence.

Notice to produce

(12) By delivering a notice in Form 39 at least 2 days before a trial, a party may require any other party to bring to the trial

(a) any document in the other party's possession or power relating to the matters in question in the action, without the necessity of identifying the document, and

(b) any physical object in the other party's possession or power which the party contemplates tendering at the trial as an exhibit, but the notice shall identify the object.

Opportunity to inspect exhibit

(13) Unless the court otherwise orders or the parties agree, no plan, photograph or object shall be received in evidence at the trial of an action unless, at least 7 days before the commencement of the trial, the parties have been given an opportunity to inspect it.

Registry to take charge of exhibits

(14) A clerk of the registry shall take charge of each document or object put in as an exhibit, mark or label each exhibit with a number, and make a list of the exhibits, giving a short description of each and stating by whom it was tendered.

Return of exhibits

(15) After the time for appeal from judgment has expired or after the disposition of an appeal, new trial or further appeal, whichever is latest, the registry may return an exhibit to the party who tendered it. The parties may agree or the court may order that an exhibit be returned at an earlier time or to a person other than the party who tendered it.

Disposal of exhibits

(16) Where the return of exhibits has not been applied for within one year from the judgment at trial or on any appeal, new trial or further appeal, whichever is the latest, the registry, with the approval of the Deputy Attorney General, may destroy or otherwise dispose of them. If any money is received as a result of the disposal, it shall be paid to the Minister of Finance and Corporate Relations. The exhibit list shall be endorsed to indicate the date and method of destruction or disposal and the amount of any money recovered.

Notice of intention to call adverse party as witness

(17) A party who desires to call as a witness at the trial an adverse party, or any director, officer, partner, employee or agent of an adverse party, may either subpoena the person or give the person or his or her solicitor at least 7 days' notice in Form 40 of the intention to call him or her as a witness, tendering at the same time the proper fees. A party may call as a witness a person referred to in this subrule without payment of fees or previous notice if the person is in attendance at the trial.

"Adverse party" defined

(18) For the purpose of subrule (17), "adverse party" means a party who is adverse in interest.

Refusal of adverse party to testify

(19) If a person required to testify under subrule (17) refuses or neglects to attend at the trial or to remain in attendance at the trial or refuses to be sworn or to answer a proper question put to him or her or to produce a document which he or she is required to produce, the court may pronounce judgment in favour of the party calling that witness or may adjourn the trial.

Adverse party as witness may be treated as hostile

(20) A party calling a witness under subrule (17) is entitled to treat the witness as hostile. Cross-examination of the witness by counsel for the adverse party shall be confined to explanation of matters brought out in the examination-in-chief. Cross-examination of the witness by other parties may be general or limited, as the court may direct. Re-examination shall be confined to new matters brought out in cross-examination.

Leading questions

(21) Where a witness appears unwilling or unable to give responsive answers or is hostile, the court may permit the party calling the witness to examine the witness by means of leading questions.

Any party may contradict testimony

(22) A party may contradict or impeach the testimony of any witness.

Use of deposition evidence

(23) A transcript, videotape or film of a deposition under Rule 38 may be given in evidence at the trial by any party and, notwithstanding that the deposition of a witness has or may be given in evidence, the witness may be called to testify orally at the trial.

Use of videotape, etc.

(24) Where a videotape or film of a deposition is given in evidence under subrule (23), a transcript of the deposition may also be given.

Proof of deposition evidence

(25) A transcript of a deposition may be given in evidence if certified as an accurate transcription by the person taking the deposition, without proof of the signature of that person. A videotape or film of a deposition may be presented as evidence without proof of its accuracy or completeness, but the court may order such investigation as it thinks fit to verify the accuracy or completeness. A videotape or film given in evidence shall become an exhibit at the trial.

Deposition to be given in full

(26) Subject to subrule (31), where a deposition is given in evidence, it shall be presented in full.

Use of discovery evidence

(27)  (a) Except as otherwise provided by this rule, a party may give in evidence at trial any part of the evidence taken upon an examination for discovery of a person examined by the party under Rule 27 that would be admissible if given in evidence by that person at trial.

(b) Where the person examined was, at the time of the examination, a former director, officer, employee, agent or external auditor of a party, any part of his or her evidence may be given at trial if notice has been delivered to all parties at least 14 days before trial specifying that part of the evidence intended to be given at trial.

(c) Any party may require the attendance at trial of a person whose evidence taken on examination is intended to be given under paragraph (b), and if the evidence is given, all parties may cross-examine that person,

(d) Where part of an examination for discovery is given in evidence, the court may review the whole of that examination and if, following the review, it considers that another part of the examination is closely connected with the part given in evidence, it may direct that the other part be put in as evidence.

Discovery evidence of person under disability

(28) Where, at the time of an examination for discovery, the person examined was an infant or a mentally incompetent person, the examination shall not be given in evidence unless the trial judge, at the time the evidence was tendered, determines that the person, at the time of the examination, was competent to give evidence.

Transcripts of discovery evidence

(29) A transcript of an examination for discovery may be given in evidence if certified as an accurate transcription by the official reporter without proof of the reporter's signature.

Use of pre-trial examination of a witness

(30) A party may give in evidence at the trial part or all of the examination of a person taken under Rule 28

(a) to contradict or impeach the testimony of the deponent at trial, or

(b) where the deponent is dead or is unable to attend and testify because of age, infirmity, sickness or imprisonment or is out of the jurisdiction or his or her attendance cannot be secured by subpoena and where it is necessary in the interests of justice,

but where part only of the examination is given in evidence, the court may look at the whole of the examination and if it is of the opinion that any other part is so connected with the part given that the last mentioned part ought not to be used without the other part it may direct the other part to be put in as evidence.

Objection to transcript evidence at trial

(31) At the trial a party may object to the admissibility of any question and answer in a transcript, videotape or film given in evidence, although no objection was taken at the examination.

Custody of transcripts

(32) If a transcription of an examination for discovery, a pre-trial examination of a witness or a deposition examination is made, the party at whose instance the examination was held shall keep the original transcript unmarked and shall have it available at the trial.

Use of interrogatories at trial

(33) At the trial of an action a party may give in evidence an answer, or part of an answer, to interrogatories, but the court may look at the whole of the answers and, where it is of the opinion that any other answer or part of an answer is so connected with an answer or part thereof given in evidence that the one ought not to be used without the other, it may direct that the other answer or part thereof be put in as evidence.

Form of subpoena

(34) A subpoena shall be in Form 21 and may contain any number of names.

Party may prepare and serve subpoena

(35) A party may prepare a subpoena and serve it on any person.

Subpoena not to be filed or sealed

(36) A subpoena need not be filed in or bear the seal of the court.

Service of subpoena

(37) A subpoena must be served and, where an affidavit is filed for the purpose of proving the service, it must state when, where, how and by whom service was effected.

Fees to accompany subpoena

(38) A person served with a subpoena is entitled to tender of the proper fees at the time of service.

Production of documents and physical objects

(39) A party, by subpoena in Form 21, may require any person to bring to the trial

(a) any document in the person's possession or power relating to the matters in question, without the necessity of identifying the document, and

(b) any physical object in the person's possession or power which the party contemplates tendering at the trial as an exhibit, but the subpoena shall identify the object to be brought.

Order for attendance of witness in custody

(40) The court may order the attendance of a witness who is in the lawful custody of another person, including the custodian of a penal institution.

Failure of witness to attend, etc.

(41) Upon proof

(a) of the service of a subpoena on a witness who fails to attend or to remain in attendance in accordance with the requirements of the subpoena,

(b) that proper witness fees have been paid or tendered to that witness, and

(c) that the presence of that witness is material to the ends of justice,

the court, by its warrant in Form 41 directed to a sheriff or other officer of the court or to a peace officer, may cause that witness to be apprehended and forthwith brought before the court and to be detained in custody or released on terms the court may order, and the court may order that witness to pay the costs arising from his or her failure to attend or to remain in attendance.

Order setting aside subpoena

(42) A person who has been served with a subpoena may apply to the court for an order setting aside the subpoena on the grounds that compliance with it is unnecessary or that it would work a hardship upon the person, and the court may make any order, as to postponement of the trial or otherwise, as it thinks just.

Clerk to note time of trial

(43) On each day of a trial, a clerk of the registry shall note the time the trial commences and terminates, the name of each witness and the time the witness' evidence begins and ends.

Affidavit evidence

(44) At or before a trial the court may order that some or all of the evidence at trial may be given by affidavit and, unless the court otherwise orders, the deponent is subject to cross-examination.

Evidence at trial by affidavit

(45) The evidence of a witness may be given by affidavit if a copy of the affidavit is furnished to every party of record by the party tendering the affidavit at least 30 days before the affidavit is given in evidence.

Contents

(46) The deponent of an affidavit under subrule (45) may only state what he or she would be permitted to state were the evidence to be given orally.

Idem

(47) Notwithstanding subrule (45), where an affidavit is furnished less than 30 days before it is given in evidence, the court may, on the application of a party or on the court's own motion, order that the affidavit is admissible.

Cross-examination

(48) Where an affidavit of a witness is furnished under subrule (45) or (47), any party to the proceeding may, unless the court otherwise orders, require the witness to be called for cross-examination, provided that 14 days' notice is given to the party tendering the affidavit before it is given in evidence.

Idem

(49) Cross-examination under subrule (48) is not confined to matters contained in the affidavit.

Costs where attendance unnecessary

(50) Where a witness has been required to give evidence under subrule (48), and the court is of the opinion that the evidence obtained does not materially add to the information in the affidavit furnished under subrule (45) or (47), the court may order the party that required the attendance of the witness to pay, as costs, a sum the court considers appropriate.

Court may order deponent to attend

(51) The court may, on the application of a party furnished with an affidavit under subrule (45), order that the evidence contained in the affidavit be given orally where the court considers

(a) that the evidence contained in the affidavit is controversial, or

(b) there is some other good reason why the evidence should be given orally.

Evidence of particular facts

(52) At or before a trial, the court may order that evidence of a fact or document may be presented at the trial in any manner, including,

(a) by statement on oath of information and belief,

(b) by documents or entries in books,

(c) by copies of documents or entries in books, or

(d) by a specified publication which contains a statement of that fact.

Order of speeches

(53) Addresses to the jury or the court shall be as follows:

(a) the party on whom the onus of proof lies may open his case before giving evidence;

(b) at the close of the case of the party who began, the opposite party, if that party announces his intention to give evidence, may open his case;

(c) at the close of all of the evidence, the party who began may address the jury or the court, and the opposite party may then address the jury or the court and the party who began may then reply and the court may allow the opposite party to be heard in response to a point raised in the reply;

(d) where a defendant claims a remedy over against a co-defendant, that defendant may address the jury after that co-defendant;

(e) where a party is represented by counsel, the rights conferred by this rule shall be exercised by the party's counsel.

Rule 41
Orders

No application for judgment necessary

(1) No application for judgment is necessary except where an enactment or these rules otherwise provides.

Judgment impossible on jury findings

(2) Where, after any redirection the court thinks appropriate, a jury answers some but not all of the questions directed to it, or where the answers are conflicting, so that judgment cannot be pronounced on the findings, the action shall be retried.

Only partial judgment possible on jury findings

(3) Where the answers of the jury entitle either party to judgment in respect of some but not all of the claims, the court may pronounce judgment on the claims as to which of the answers are sufficient and the remaining claims shall be retried.

Jury failing to reach verdict

(4) Where the jury fails to reach a verdict in accordance with the Jury Act, the action shall be retried.

Retrial

(5) A retrial under subrules (2) to (4) may take place at the same or subsequent sittings as the court may direct.

Continuing trial without jury

(6) Where, for any reason other than the misconduct of a party or the party's counsel, a trial with a jury would be retried, the court, with the consent of the party who required a jury trial, may continue the trial without a jury.

Idem

(7) Where, by reason of the misconduct of a party or the party's counsel, a trial with a jury would be retried, the court, with the consent of all parties adverse in interest to the party whose conduct, or whose counsel's conduct is complained of, may continue the trial without a jury.

Drawing and approving orders

(8) An order of the court may be drawn up by any party and, unless the court otherwise directs, shall be approved in writing by all parties or their solicitors or counsel, and then left with the registrar to have the seal of the court affixed, but the order need not be approved by a party who has not consented to it and who did not appear or was not represented at the trial or hearing following which the order was made.

Form of order

(9) An order shall be in Form 42, 43, 86 or 87.

Endorsement of order on application sufficient in certain cases

(10) If an order has been made substantially in the same terms as requested, if the court endorses the notice of motion, petition or other document to show that the order has been made or made with any variations or additional terms shown in the endorsement.

Order granted conditionally on document to be filed

(11) If an order may be entered on the filing of a document, the party shall file the document when leaving the draft order with the registrar, and the registrar shall examine the document and, if satisfied that it is sufficient, shall enter the order accordingly.

Waiver of order obtained upon condition

(12) Where a person who has obtained an order upon condition does not comply with the condition, the person shall be deemed to have abandoned the order so far as it is beneficial to the person and, unless the court otherwise directs, any other person interested in the matter may take either the steps the order may warrant or the steps that might have been taken if the order had not been made.

Effect and form of orders

(13)  (a) An order of a single judge or master is an order of the court.

(b) Every order shall show on its face the name of the judge who made it, but an order that is not spoken to may show on its face that it was made before a judge if it is approved by a judge.

(c) An order may be approved by any judge.

Date of order

(14)  (a) An order shall be dated as of the day on which it was pronounced.

(b) An order made by a registrar shall be dated as of the day on which it is signed by the registrar.

(c) Unless the court otherwise orders, an order takes effect on the day of its date.

Requirements of consent order

(15) No consent order shall be entered unless the consent of each party affected is signified,

(a) where the party appears by solicitor or counsel, by the signature of the solicitor or counsel,

(b) where the party does not appear or appears in person,

(i) by the oral consent of the party before the court or the registrar, or

(ii) by the written consent of the party.

Order by consent

(16) Where

(a) no person involved is under a legal disability, or

(b) the Public Trustee has consented under section 31 (6) of the Infants Act, and no person other than the infant is under a legal disability,

an application for any order by consent may be made by filing a praecipe and a draft of the order in Form 56, and on being satisfied that the application is appropriate, the registrar may

(c) enter the order, or

(d) refer the application to a judge or master who may

(i) make the order, or

(ii) direct that the application be spoken to.

Requirements of order requiring person to do an act

(17) Every order requiring a person to do an act shall

(a) be served on that person or delivered to the person's solicitor of record, and

(b) state the time, or the time after service or delivery of the order, within which the act is to be done.

Settlement of orders

(18) An order shall be settled, when necessary, by the registrar, who may refer the draft to the judge or master who made the order.

Appointment to settle

(19) A party may obtain an appointment to settle an order in Form 44 and shall deliver the appointment and a draft order to all parties whose approval is required under subrule (8) at least one day before the time fixed thereby.

Party failing to appear on appointment to settle

(20) If a party fails to appear at the time appointed for settlement of an order, the registrar may settle the order in the party's absence.

Review of settlement

(21) The court may review and vary the order as settled.

Registrar may draw order

(22) The court may direct the registrar to draw up and enter an order.

Special directions for carriage, entry or service

(23) The court may give special directions respecting the carriage, entry or service of an order.

Correction of orders

(24) The court may at any time correct a clerical mistake in an order or an error arising in an order from an accidental slip or omission, or may amend an order to provide for any matter which should have been but was not adjudicated upon.

Order book to be kept by registry

(25) The original copy of all orders required to be drawn up shall be inserted by the registry in a book kept for that purpose, except where a photographic film of the order is taken and maintained.

Rule 42
Enforcement of Orders

Order to pay money to a person

(1) An order for the payment of money to a person may be enforced by writ of seizure and sale in Form 45.

Order to pay money into court

(2) An order for the payment of money into court may be enforced by writ of sequestration in Form 46.

Order for recovery or delivery of land

(3) An order for the recovery or the delivery of the possession of land may be enforced by writ of possession in Form 47.

Order for recovery or delivery of property other than land

(4) An order for the recovery or the delivery of the possession of any property other than land or money may be enforced by writ of delivery in Form 48 or Form 49 or writ of sequestration in Form 46.

Appointment of receiver

(5) An order may be enforced by the appointment of a receiver under Rule 47

Execution by or against person not a party

(6) A person not a party to a proceeding, who obtains an order or in whose favour an order is made, may enforce the order by the same process as if the person were a party to the proceeding, and a person not a party to a proceeding, against whom an order may be enforced, is liable to the same process for enforcing the order as if the person were a party to the proceeding.

Remedy on non-compliance with mandatory order

(7) If a mandatory order or an order for the specific performance of a contract is not obeyed, the court, besides or instead of proceeding against the disobedient person for contempt, may direct that the act required to be done may be done so far as is practical by the person who obtained the order, or some other person appointed by the court, at the cost of the disobedient person; and upon the act being done, the expenses incurred may be ascertained in the manner as the court may direct, and execution may issue for the amount so ascertained and costs.

Issue of execution on conditional order

(8) Where an order is to the effect that a person is entitled to relief subject to or on compliance with a condition or the happening of a contingency, the person so entitled, on compliance with the condition or the happening of the contingency, and on demand made on the person against whom he is entitled to relief, may apply to the court for leave to issue execution. The court, if satisfied that the right to relief has arisen, may order that execution issue or may direct that any issue or question necessary for the determination of the rights of the persons be tried.

Issue of execution on change of parties

(9) Where a change has taken place, by death or otherwise, in the persons entitled or liable to execution, the person alleging to be entitled to execution may apply to the court for leave to issue execution, and the court may order

(a) that execution may issue, or

(b) that any issue or question necessary to determine the rights of the person be tried.

Production of order before execution

(10) No writ of execution shall issue without the production to the registry of a copy of the order upon which the writ is to issue.

Endorsement of writ

(11) A writ of execution shall be endorsed with the name and address of the solicitor or person causing it to be issued.

Issue of writ of sequestration, possession or delivery

(12) A writ of sequestration, a writ of possession or a writ of delivery shall be issued only upon filing proof satisfactory to the registrar that the order sought to be enforced

(a) has been served or delivered under Rule 41 (17), and

(b) has not been complied with.

Issue of writ of execution where order to pay money within a period

(13) Where the order sought to be enforced is for the payment of money within a specified period, no writ of execution shall be issued until the expiration of the period.

Issue of writ of execution

(14) (a) Subject to these rules or an order of the court, a writ of execution may be issued by the registrar at any time during the lifetime of the order sought to be enforced.

(b) A writ of execution shall be prepared by the person seeking to enforce the order or the person's solicitor, shall be sealed by the registrar, and shall thereupon be deemed to be issued.

(c) The person seeking to enforce the order or the person's solicitor, on presenting a writ of execution for sealing, shall leave a copy of the writ with the registry.

Term and renewal of writ of execution

(15) (a) A writ of execution, if unexecuted, shall remain in force for one year only, unless renewed.

(b) At any time before the expiration of a writ of execution, or a renewed writ of execution, the writ may be renewed for one year from the date of renewal on the application of the party issuing the writ.

(c) An application to renew a writ of execution may be heard by the court, a master or a registrar designated by the Chief Justice.

(d) A renewed writ of execution shall be endorsed by the master or the registrar with the date of the order granting renewal and the date of the renewal.

Enforcement costs

(16) (a) Unless the court otherwise orders, a party who is entitled to enforce an order is entitled to the costs, fees and expenses of enforcement including proceedings under the Court Order Enforcement Act and Rules 42 and 42A.

(b) Subject to paragraph (c), where these rules or some other enactment provide that enforcement costs may be included in the amount endorsed on any process of enforcement, the registrar may fix the amount to be endorsed on the process.

(c) Where a judgment debtor alleges that he has satisfied an order for the payment of money or otherwise, whether or not the costs of enforcement and interest on those costs have been paid,

(i) either the judgment creditor or debtor may apply to have the costs of enforcement assessed before the registrar, and Rule 57 applies, or

(ii) the judgment debtor may apply to the registrar for an accounting.

(d) On an accounting referred to in paragraph (c) (ii), Rule 32 applies and the registrar may certify

(i) the amount, if any, then due to the judgment creditor,

(ii) the amount, if any, then due to the judgment debtor as a result of an overpayment, and

(iii) that the judgment has been paid.

(e) A certificate under paragraph (d) (iii) has the same effect as though it were an order under subrule (20).

Separate writs for costs

(17) Upon an order granting relief and costs there may be, at the election of the person entitled, either one writ or separate writs of execution for the relief granted and for the recovery of the costs.

Judgment for recovery of property other than land

(18) Where it is sought to enforce an order for the recovery of property other than land or money by writ of delivery, upon the application of the judgment holder, the court may order that execution issue for the delivery of the property without giving the other party the option of retaining the property upon paying the assessed value, and that if the property cannot be found, and unless the court otherwise orders, the sheriff shall take possession of all the other party's lands, goods and chattels until the other party delivers the property or, at the option of the judgment holder, until the sheriff realizes from the other party's goods and chattels the assessed value of the property.

Acknowledgment of payment

(19) A debtor may require, as a condition of paying a money judgment, that the judgment creditor forthwith execute, file and deliver an acknowledgment of payment, in Form 50.

Order that judgment has been paid

(20) Where a judgment debtor claims to have paid the judgment but has not obtained an acknowledgment of payment from the judgment creditor, the debtor may apply to the court for an order certifying that the judgment has been paid.

Stay of execution

(21) (a) The court may, at or after the time of making an order,

(i) stay the execution of the order until such time as it thinks fit, or

(ii) provide that an order for the payment of money be payable by instalments.

(b) Unless the court in an order under paragraph (a) (ii) otherwise provides, where an instalment is not paid by the time fixed for payment, the balance of the money remaining unpaid under the order is, at that time, due and payable without notice being given to the judgment debtor.

(c) Without limiting the generality of paragraph (a), a party against whom an order has been made may apply to the court for a stay of execution or other relief on grounds with respect to which the supporting facts arose too late for them to be pleaded, and the court may give relief it considers just.

Application for directions

(22) A sheriff, judgment creditor or judgment debtor may apply to the court for directions under Rule 43 concerning the sale of any property taken in execution.

Subpoena to debtor

(23) A creditor who has obtained an order of the court for the recovery or payment of money, or costs, or both, may issue out of the registry a subpoena in Form 51 on filing an affidavit showing that the order is not satisfied and that no writ of execution issued by the creditor is outstanding against the debtor.

Idem

(24) The subpoena shall be directed to the debtor or to an officer or director of a corporate debtor or to a person liable to execution on an order against a partnership or firm debtor.

Service of subpoena

(25) The subpoena shall be served personally at least 7 days before the date of the hearing, and with the subpoena shall be tendered the expenses the person served would be entitled to were he or she required to attend the court as a witness.

Examination of debtor

(26) The hearing shall take place before an examiner and shall be on oath as to the following matters:

(a) the income and property of the debtor;

(b) the debts owed to and by the debtor;

(c) the disposal the debtor has made of any property;

(d) the means the debtor has, or has had, or in future may have, of satisfying the order.

Examiner

(27) The examiner shall be

(a) the court,

(b) a master, or

(c) a registrar designated as an examiner by the Chief Justice.

Examination

(28) The creditor and the person subpoenaed may, with leave of the examiner, call witnesses who may be cross-examined.

Adjournment

(29) The examiner may adjourn the hearing from time to time.

Debtor refusing to attend, etc.

(30) If the person subpoenaed

(a) does not attend as required at the hearing or an adjournment of it,

(b) refuses to be sworn, or to affirm or to answer any question put to the person,

(c) after an order to that effect, refuses or neglects to produce or permit to be inspected any document or property, or

(d) does not give answers which are to the satisfaction of the examiner,

then

(e) if the examiner is a master or registrar,

(i) in the case of default under paragraph (a) he or she shall make a report in Form 88 and fix a time and place at which the creditor may appear before the court, and at that time and place the court may, at the request of the creditor and without notice to the person subpoenaed, order committal, or apprehension under Rule 56 (5), and

(ii) in the case of default under paragraph (b), (c) or (d) he or she shall make a report in Form 88 and fix a time and place for the person subpoenaed to appear before the court, and at that time and place the court may, at the request of the creditor and without further notice to the person subpoenaed, order committal, or apprehension under Rule 56 (5), or

(f) if the examiner is the court, the examiner may order committal.

Creditor failing to attend, etc.

(31) If the creditor who issued a subpoena fails to appear at the hearing, or if the examiner is of the opinion that the proceedings are unnecessary or vexatious, the examiner may order the creditor to pay to the person subpoenaed a sum of money by way of compensation and may order that sum to be paid forthwith or to be set off against the debt.

Debtor unreasonably refusing to pay

(32) If it appears to the examiner that the debtor,

(a) with intent to defraud the creditor, has made or caused to be made any gift or delivery or transfer of property, or has removed or concealed property,

(b) has unreasonably neglected or refused to pay the debt in whole or in part or to pay any instalment ordered to be paid, or

(c) is a corporation and that the person subpoenaed has done, authorized, permitted or acquiesced in an act or omission described in paragraph (a) or (b),

then

(d) if the examiner is a master or registrar, he or she may make a report of his or her findings and fix a time and place for the person subpoenaed to appear before the court, and at that time and place the creditor may apply without notice for committal, or

(e) if the examiner is the court, the examiner may order committal.

Order for payment

(33) The examiner may make one or more of the following orders:

(a) for the payment of the debt by instalments;

(b) for the payment of the debt on or before a fixed date;

(c) varying or rescinding any previous order;

(d) for payment to be made to the registrar, or to the creditor or to the creditor's solicitor;

(e) fixing the costs payable by the debtor without assessment,

and if the examiner is the master or registrar, the order shall have the effect of an order made by the court and shall be entered accordingly.

Notice of application for committal

(34) If a debtor fails to pay in accordance with an order made by an examiner, the creditor may issue out of the registry a notice of motion for committal in Form 52, on filing an affidavit showing that the default has occurred, and subrules (24) and (25) apply.

Order for committal

(35) (a) The court may order committal if satisfied that

(i) the order to pay has not been obeyed,

(ii) the person knew of the order, and

(iii) the person has not shown good cause why an order of committal should not be made against him or her.

(b) The court may fix the costs payable by the debtor without assessment.

Form of order

(36) An order of committal shall be in Form 53 and shall commit the person named to prison for a term not exceeding 40 days.

Term of order

(37) No order of committal shall be enforced after the expiration of one year after the date the order was made.

Payment to sheriff

(38) A creditor seeking to enforce an order of committal shall pay to the sheriff for the maintenance of the person committed the sum of $10 per day by weekly payments of $70 in advance. The maintenance money paid by the creditor shall be recoverable by the creditor from the debtor as costs of execution, without order.

Debtor to be brought before court

(39) Subject to subrule (41), a sheriff or peace officer executing an order of committal shall bring the person arrested forthwith before the court, and the person arrested may be examined by the court, and if the court considers that imprisonment is not appropriate, it may stay execution of the order and shall fix a time and place for a hearing to determine whether or not the order of committal should be set aside or varied, and shall give directions for notice of the hearing to be given to the creditor.

Application to set aside or vary order

(40) A person who is the subject of an order of committal may apply to the court to set aside or vary the order, and the court may direct a stay of execution of the order pending the hearing of the application and give directions for service of notice of the hearing.

Payment of debt

(41) (a) A person who is the subject of an order of committal may pay the amount payable endorsed on the order either to the registrar or to the sheriff or peace officer or warden in whose custody he or she is.

(b) Upon payment to the registrar of the amount payable, the registrar shall issue a receipt to that effect.

(c) Upon payment to any of them of the amount payable or upon being shown a registrar's receipt to that effect, a sheriff or peace officer or warden shall release the person committed from custody and shall endorse the order accordingly and return it to the registry.

(d) All money received under this rule shall forthwith be paid to the creditor.

Praecipe for discharge

(42) A creditor who has obtained an order of committal may file in the registry a praecipe requesting discharge of the person committed, and the registrar shall endorse the praecipe and a copy with the words "This is your authority to discharge ____________________________________ (name) from custody" above the registrar's signature, and, on being shown the copy of the praecipe, a sheriff or peace officer or warden shall release the person committed from custody and shall endorse the order accordingly and return it to the registry.

Failure to pay sheriff

(43) A sheriff who has not received maintenance money as provided in subrule (38) shall release the person committed, if in the sheriffs' custody, or shall notify the warden, if in the warden's custody, who shall release the person committed, and each shall endorse the order accordingly and return it to the registry.

Liability imposed by order

(44) So imprisonment under these rules extinguishes the liability imposed by an order.

Enforcement of alimony or maintenance order

(45) Where the court has made an order for the payment of alimony or maintenance by periodic payments and arrears have occurred, a writ of execution for the total of the arrears may be issued against the person liable to make payment upon proof by affidavit of the fact and amount of the arrears.

Enforcement of certificate

(46) Where a certificate under Rule 32 (2) or 57 (32) has been filed, it may be enforced as if it were an order of the court.

| Rules 1-10 | Rules 11-19 | Rules 20-29  | Rules 30-37 | Rules 38-42 | Rules 42A-55 | Rules 56-60B | Rules 61-64 | Appendices |


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