Citation

(1) These rules may be cited as the Rules of Court.

Idem

(2) A group of rules having the same unbracketed numeral may be cited as "Rule" followed by the numeral, for example, "Rule 1" means Rule 1 (1) to 1 (15), inclusive.

Idem

(3) A rule or part of a rule may be cited as "Rule" followed by the number, subrule, paragraph or clause of the rule cited, for example, "Rule 15 (5) (a) (i)" means clause (i) of paragraph (a) of subrule (5) of Rule 15.

Application

(4) These rules govern every proceeding in the Supreme Court except where an enactment otherwise provides.

Object of rules

(5) The object of these rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.

Interpretation

(6) Except where a contrary intention appears, the Interpretation Act and the interpretation section of the Supreme Court Act apply to these rules.

Titles and headings

(7) The titles and headings of these rules are for convenience only and are not intended as a guide to construction.

Definitions

(8) In these rules, unless the context otherwise requires,

"Act" means the Supreme Court Act;

"action" means a proceeding commenced by writ of summons;

"court" means the Supreme Court of British Columbia and, where a master has jurisdiction, includes a master of the Supreme Court;

"defendant"includes a defendant by way of counterclaim;

"document" has an extended meaning and includes a photograph, film, recording of sound, any record of a permanent or semi-permanent character and any information recorded or stored by means of any device;

"file" means file in the registry;

"matrimonial action" means an action under the Divorce and Matrimonial Causes Act reprinted as chapter 118, R.S.B.C. 1960, or under the Family Relations Act;

"order" includes a judgment and a decree;

"originating application" means a proceeding commenced by petition or praecipe;

"originating process" means a writ of summons, petition, third party notice or any document which commences a proceeding or adds a new party to a proceeding;

"parties of record" means all parties who have commenced proceedings or have appeared thereto or filed a statement of defence to a third party notice or filed an answer or answer and counter-petition in a divorce proceeding;

"petition" includes a counter-petition, but does not include a petition for divorce;

"petitioner" means a person who commences a proceeding by petition or a petition for divorce;

"plaintiff" means a person who commences an action and includes a plaintiff by way of counterclaim;

"pleading" includes a statement of claim, statement of defence, reply, counterclaim, statement of defence to counterclaim, third party notice, statement of defence to third party notice, and in a divorce proceeding, includes a petition for divorce, an answer and an answer and counter-petition;

"proceeding" means an action, suit, cause, matter, appeal or originating application and includes a proceeding under the Divorce Act, 1985 (Canada);

"receiver" includes receiver-manager;

"registrar" includes the District Registrar or Deputy District Registrar in whose registry the proceeding was commenced or is pending;

"registry" means the office of the court in which the proceeding was commenced or is pending;

"respondent" means a person who is required by these rules to be served with a petition;

"special referee" means any person, other than a master or registrar, appointed by the court under these rules or under an enactment to hold an assessment, inquiry or accounting;

"writ of execution" includes a writ of seizure and sale, sequestration, possession or delivery and any subsequent writ that issues to give effect to these writs, and also includes a warrant or other process of execution issued out of any court in the Province having jurisdiction to grant and issue that process.

Transition

(9) Unless the court otherwise orders, all proceedings, whenever commenced, shall be governed by these rules.

Idem

(10) The court may order that a proceeding, or a step in a proceeding, be continued and concluded under the rules in force at the time of its commencement.

Waiver of rule by agreement

(11) Upon application and if all parties to a proceeding agree, the court may order that any provision of these rules does not apply to the proceeding.

Orders on terms and conditions

(12) When making an order under these rules the court may impose terms and conditions and give directions as it thinks just.

Petitions and applications

(13) Where an enactment authorizes an application to the court or to a judge of the court, and, whether or not the enactment provides for the mode of application, the application shall be

(a) by originating application under Rule 10, or

(b) if the application is interlocutory, by interlocutory application under Rule 44.

Enactments of Canada

(14) Subrule (13) does not apply where a particular mode of application is required by an enactment of Canada.

Mutatis mutandis

(15) Where an enactment provides that another enactment applies, it applies with the necessary changes and so far as it is applicable.

Non-compliance with rules

(1) Unless the court otherwise orders, a failure to comply with these rules shall be treated as an irregularity and does not nullify a proceeding, a step taken or any document or order made in the proceeding.

Idem

(2) Subject to subrules (3) and (41, where there has been a failure to comply with these rules, the court may

(a) set aside a proceeding, either wholly or in part,

(b) set aside any step taken in the proceeding, or a document or order made in the proceeding,

(c) allow an amendment to be made under Rule 24,

(d) dismiss the proceeding or strike out the statement of defence and grant judgment, or

(e) make any other order it thinks just.

Idem

(3) The court shall not wholly set aside a proceeding on the ground that it was required to be commenced by an originating process other than the one employed.

Application to set aside for irregularity

(4) An application for an order under subrule (2) (a), (b) or (d) shall not be granted unless it is made within a reasonable time, and the application is made before the party applying has taken a fresh step after knowledge of the irregularity.

Consequences of certain non-compliance

(5) Where a person, contrary to these rules and without lawful excuse,

(a) refuses or neglects to obey a subpoena or to attend at the time and place appointed for his or her examination for discovery,

(b) refuses to be sworn or to affirm or to answer any question put to him or her,

(c) refuses or neglects to produce or permit to be inspected any document or other property,

(d) refuses or neglects to answer interrogatories or to make discovery of documents, or

(e) refuses or neglects to appear for or submit to a medical examination,

then

(f) where the person is the plaintiff, petitioner or a present officer of a corporate plaintiff or petitioner, or a partner in or manager of a partnership plaintiff or petitioner, the court may dismiss the proceeding, and

(g) where the person is the defendant, respondent or a third party, or a present officer of a corporate defendant, respondent or third party, or a partner in or manager of a partnership defendant, respondent or third party, the court may order the proceeding to continue as if no appearance had been entered or no defence had been filed.

Idem

(6) Where a person, without lawful excuse, refuses or neglects to comply with a direction of the court, the court may make an order under subrule (5) (f) or (g).

Dismissal for want of prosecution

(7) If upon application by a party it appears to the court that there is want of prosecution in a proceeding, the court may order that the proceeding be dismissed.

Computation of time

(1) Unless a contrary intention otherwise appears, the computation of time under these rules or in an order of the court is governed by the following provisions:

(a) if a period of less than 7 days is prescribed by these rules or the order, holidays shall not be counted;

(b) service or delivery of documents effected after 4 o'clock in the afternoon shall be deemed to have been effected on the next day that is not a holiday.

Extending or shortening time

(2) The court may extend or shorten any period of time provided for in these rules or in an order of the court, notwithstanding that the application for the extension or the order granting the extension is made after the period of time has expired.

Idem

(3) The period fixed by these rules or an order for serving, delivering, filing or amending a pleading or other document may be extended by consent.

Notice of intention to proceed after delay of one year

(4) In a proceeding where judgment has not been obtained and no step has been taken for one year, no party shall proceed until

(a) the expiration of 28 days after service of notice of that party's intention to proceed on all other parties of record, and

(b) a copy of the notice and proof of its service has been filed.

Want of prosecution

(5) Notwithstanding this rule, a defendant or respondent may apply to have a proceeding dismissed for want of prosecution without serving notice of intention to proceed.

Time for attendance on master, etc.

(6) Attendance on an appointment before a master, registrar, official reporter or special referee within 1/2 hour following the time fixed for the appointment is a sufficient attendance.

Forms

(1) The forms in Appendix A shall be used where applicable with variations as the circumstances of the proceeding require.

Documents

(2) Unless the nature of the document renders it impractical, every document prepared for use in the court shall be in the English language, legibly printed, typewritten, written or reproduced on 8 1/2 inch x 11 inch durable white paper or durable off-white recycled paper.

Idem

(3) Transcripts of oral evidence shall conform to subrule (2).

Style of proceeding

(4) A document prepared for use in a proceeding shall be headed with the style and number of the proceeding, but in a document, other than an order or a document that commences a proceeding, where there is more than one party in a class, the style of proceeding may be abbreviated to show the name of the first party in that class, followed by the words "and others".

Signature and dating

(5) A document prepared for use in a proceeding shall be signed and dated by the party, or by or for the party's solicitor.

Multiple claims

(1) Subject to subrule (6), a person, whether claiming in the same or different capacities, may join several claims in the same proceeding.

Multiple parties

(2) Subject to subrule (6), a proceeding may be commenced by or against 2 or more persons where

(a) if separate proceedings were brought by or against each of them, a common question of law or fact would arise in all the proceedings, or

(b) a right to relief claimed in the proceedings, whether it is joint, several or alternative, is in respect of or arises out of the same transaction or series of transactions, or

(c) the court grants leave to do so.

Idem

(3) Subject to any enactment or these rules or unless the court otherwise orders, a plaintiff or petitioner who claims relief to which any other person is jointly entitled shall join as parties to the proceeding all persons so entitled, and any of them who do not consent to be joined as a plaintiff or petitioner shall be made a defendant or respondent.

Idem

(4) Where relief is claimed against a person who is jointly liable with some other person, the other person need not be made a party to the proceeding; but where persons may be jointly, but not severally, liable and relief is claimed against some but not all of these persons in a proceeding, the court may stay the proceeding until the other persons who may be liable are added as parties.

Idem

(5) It is not necessary that every party be interested in all the relief sought in a proceeding, but the court may order that a party be compensated for being required to attend, or be relieved from attending, a part of a trial or hearing in which that party has no interest.

Separation

(6) Where a joinder of several claims or parties in a proceeding may unduly complicate or delay the trial or hearing of the proceeding or is otherwise inconvenient, the court may order separate trials or hearings or make any other order it thinks just.

Idem

(7) Where a counterclaim or a third party proceeding ought to be disposed of by a separate proceeding, the court may so order.

Consolidation

(8) Proceedings may be consolidated at any time by order of the court or may be ordered to be tried at the same time or on the same day.

Misjoinder or nonjoinder of parties

(9) No proceeding shall be defeated by reason of the misjoinder or nonjoinder of a party and the court may deal with the matter in controversy so far as it affects the rights and interests of the parties before it.

Carriage by Air Act

(10) In an action under the Carriage by Air Act (Canada) and the convention set out in that Act, a high contracting party to the convention who, for the purposes of that action and by virtue of that Act, is deemed to have submitted to the jurisdiction of the court, may be made a defendant subject to these rules.

Representative proceeding

(11) Where numerous persons have the same interest in a proceeding, other than a proceeding referred to in subrule (17), the proceeding may be commenced and, unless the court otherwise orders, continued by or against one or more of them as representing all or as representing one or more of them.

Idem

(12) At any stage of a proceeding under subrule (11), the court, on the application of a party, may appoint one or more of the defendants or respondents or another person to represent one or more of the persons having the same interest in the proceeding, and where the court appoints a person not named as a defendant or respondent, it shall make an order under Rule 15 adding that person as a defendant or respondent.

Enforcement of order made in representative proceeding

(13) (a) An order made in a proceeding under subrule (11) is binding on all the persons represented in the proceeding as parties, but shall not be enforced against a person not a party to the proceeding except with leave of the court.

(b) An application for leave shall be served on the person against whom the applicant seeks to enforce the order, and that person may dispute liability to have the order enforced against him.

(c) On the application, the court may order that the question of whether the order is enforceable against that person be determined in the manner it thinks just.

Representation of interested person who cannot be ascertained

(14) In a proceeding concerning

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

(b) property subject to a trust, or

(c) the construction of a written instrument, including an enactment,

the court may appoint one or more persons to represent a person, including an unborn or unascertained person, or the members of a class of persons who have a present, future, contingent or unascertained interest in, or who may be affected by the proceeding, and who, or some of whom, cannot readily be ascertained or found.

Idem

(15) If an appointment is made under subrule (14), an order in the proceeding is binding upon a person or class so represented.

Idem

(16) Where, in a proceeding referred to in subrule (14), a compromise is proposed and a person or member of a class interested in the compromise is not a party to the proceeding, but

(a) there is another person with the same interest who is a party and who assents to the compromise, or

(b) the absent person or member of the class is represented by a person appointed under subrule (14) who so assents,

the court, if satisfied that the compromise will be for the benefit of the absent person or member of the class and that it is expedient, may approve the compromise and order that it is binding on the absent person or member of the class and, unless the order has been obtained by fraud or non-disclosure of material facts, the person or member of the class is bound accordingly.

Representation of beneficiaries by trustees

(17) A proceeding may be brought by or against trustees or personal representatives without joining a person having a beneficial interest in the trust or estate and, unless the court otherwise orders on the ground that the trustees or personal representatives could not or did not represent the interest of that person, an order granted or made in the proceeding is binding on that person.

Idem

(18) Subrule (17) does not limit the power of the court to order a person having an interest to be made a party or to make an order under subrule (14).

Representation of deceased person interested in a proceeding

(19) Where the estate of a deceased person has an interest in a matter in question in a proceeding, but there is no personal representative, the court may proceed in the absence of a person representing the estate of the deceased person or may appoint a person to represent the estate for the purposes of the proceeding, and an order made or granted in the proceeding binds the estate to the same extent as it would have been bound had a personal representative of the deceased person been a party to the proceeding.

Idem

(20) Before making an order under subrule (19), the court may require notice of the application to be given to a person having an interest in the estate.

Person as relator

(21) Before the name of a person is used in a proceeding as a relator, that person shall give a written authorization to his or her solicitor to use the person's name and the authorization shall be filed.

Declaratory order

(22) No proceeding shall be open to objection on the ground that only a declaratory order is sought, and the court may make binding declarations of right whether or not consequential relief is or could be claimed.

Conduct of a proceeding

(23) The court may give the conduct of a proceeding to any person it thinks just.

Interpretation

(1) In this rule "committee" means the committee of the estate of a patient appointed under the Patients Property Act.

Commencement of proceedings by person under disability

(2) A person under legal disability shall commence or defend a proceeding by his or her guardian ad litem.

(3) Unless a rule otherwise provides, anything that is required or authorized by the rules to be done by or invoked against a party under disability shall

(a) be done on his or her behalf by his guardian ad litem, or

(b) be invoked against him or her by invoking the same against his or her guardian ad litem.

Idem

(4) A guardian ad litem shall act by a solicitor unless the guardian ad litem is the Public Trustee.

Guardian ad litem

(5) Unless the court otherwise orders or an enactment otherwise provides, a person ordinarily resident in the Province may be a guardian ad litem of a person under disability without being appointed by the court.

Committee as guardian ad litem

(6) Where a person is appointed committee, that person shall be the guardian ad litem of the patient in any proceeding unless the court otherwise orders.

Consent of guardian ad Iitem

(7) Before the name of a person is used in a proceeding as a guardian ad litem that person's consent, signed by the person or his or her solicitor, shall be filed, unless the person has been appointed by the court.

Certificate of fitness

(8) Unless a committee has been appointed, the solicitor for a person under disability, before acting in a proceeding, shall file a certificate that he or she knows or believes

(a) the person to whom the certificate relates is an infant or mentally incompetent person, giving the grounds of that knowledge or belief, and if a mentally incompetent person, that a committee has not been appointed for the person, and

(b) the proposed guardian ad litem of the person under disability has no interest in the proceeding adverse to that person.

Party becoming incompetent

(9) Where a party becomes a mentally incompetent person and a committee has not been appointed for that party, the court shall appoint a guardian ad litem for him or her.

Removal of guardian ad litem

(10) If it is in the interest of a party who is under disability, the court may remove, appoint or substitute a guardian ad litem.

Step in default

(11) A party shall not take a step in default against a person under disability without leave of the court.

Idem

(12) Unless the court otherwise orders, notice of the application for leave shall be served on the person under disability 10 days before the hearing of the application, in the manner provided by Rule 11.

Idem

(13) If no appearance has been entered to an originating process on behalf of a person under disability, the person who commenced the proceeding, before continuing the proceeding against the person under disability, shall obtain an order from the court appointing a guardian ad litem for him or her.

Compromise by person under disability

(14) Unless an enactment otherwise provides, where a claim is made by or on behalf of a person under disability, no settlement, compromise, payment or acceptance of money paid into court, whenever entered into or made, so far as it relates to that person's claim, is binding without the approval of the court.

Approval of compromise

(15) Where, before a proceeding is commenced, an agreement is reached for the settlement or compromise of a claim of a person under disability, whether alone or with others, and it is desired to obtain the court's approval, application may be made by an originating application, and the court may make any order as it thinks just.

Partners may sue or be sued in firm name

(1) Two or more persons claiming to be entitled, or alleged to be liable, as partners may sue or be sued in the name of the firm in which they were partners at the time when the alleged right or liability arose.

Service on firm

(2) Service is effected upon a firm by leaving a copy of the document to be served either with a person who was a partner at the time the alleged right or liability arose or with a person at a place of business of the firm who appears to manage or control the partnership business there.

Appearance

(3) An appearance by a partnership shall be in the name of the firm, but a partner or a person served as a partner may appear and defend in the person's own name, whether or not named in the originating process.

Affidavit naming partners

(4) Where a partnership is a party to a proceeding, any other party may deliver a notice requiring one of the partners to deliver within 10 days an affidavit setting out the names and addresses of all persons who were partners when the alleged right or liability arose.

Idem

(5) Where the affidavit requested under subrule (4) is not delivered, the court may order delivery.

Execution against partnership or partners

(6) Where an order is made against a firm, execution to enforce the order may issue against any property of the firm.

Idem

(7) Subject to subrule (8), where an order is made against a firm, execution to enforce the order may issue against any person who

(a) entered an appearance in the person's own name in the proceeding as a partner,

(b) having been served with the originating process as a partner, failed to enter an appearance in the proceeding,

(c) admitted in a pleading or affidavit that the person is a partner, or

(d) was adjudged to be a partner.

Idem

(8) Where a party who has obtained an order against a firm claims that a person, who is not a person described in subrule (7), is liable to satisfy the order as being a member of the firm, the party may apply to the court for leave to issue execution against that person.

Idem

(9) Where the person against whom an application under subrule (8) is made disputes liability, the court may order that the liability of the person be determined in any manner in which an issue or question in an action may be determined.

Action against person carrying on business in a name other than the person's own

(10) A person carrying on business in a name or style other than the person's own name may be sued in that name or style as if it were the name of a firm, and this rule applies as though the person were a partner and the name in which the person carries on business were the name of that firm.

Writ of summons

(1) Except where otherwise authorized by an enactment or these rules, every proceeding in the court shall be commenced by issuing a writ of summons.

Endorsement

(2) A writ of summons shall be endorsed either with a statement of claim or with a concise statement of the nature of the claim made and the relief or remedy required in the action.

Form

(3) A writ of summons shall be in Form 1.

Service

(4) Subject to Rule 13, a writ of summons may be served within or outside British Columbia.

Representative action

(5) If the plaintiff sues or a defendant is sued in a representative capacity, the endorsement shall show in what capacity the plaintiff or defendant sues or is sued.

Address for delivery

(6) A writ of summons shall state the address of the plaintiff and the office address of the plaintiff's solicitor, if the plaintiff has a solicitor, and shall state an address for delivery which, unless it is the office address of the solicitor, shall be within 10 miles of the registry.

Idem

(7) For the purpose of subrule (6), a place that is within 10 miles of the registry in the City of Vancouver shall be deemed to be also within 10 miles of the registry in the City of New Westminster, and a place within 10 miles of the registry in the City of New Westminster shall be deemed to be also within 10 miles of the registry in the City of Vancouver.

Issue of writ of summons

(8) A writ of summons shall be signed by the plaintiff or by or for the plaintiff's solicitor and may be issued out of any registry of the court.

Sealing of writ of summons

(9) A writ of summons shall be sealed and dated by the registrar and shall thereupon be deemed to be issued.

Registrar's copy of writ of summons

(10) The plaintiff or the plaintiff's solicitor shall leave the original writ with the registrar.

Filing writ of summons

(11) (a) The registry shall file the writ, number the action commenced by the writ and enter the names of the parties in an index.

(b) The registrar shall return to the plaintiff or the plaintiff's solicitor as many copies of the issued writ as are requested.

Lost writ of summons

(12) If a writ of summons has been lost, the court, on being satisfied of the loss and the correctness of a copy of the writ, may order that the copy be sealed and stand in place of the original writ.

Proceedings under the Wills Variation Act

(13) A proceeding under section 2 of the Wills Variation Act shall be commenced by a writ of summons.

Idem

(14) The surviving spouse and children of the testator, all beneficiaries under the testator's will whose interest may be affected by the order sought, and the executor of the will shall be parties to the proceeding, but the court may order that any other person be joined as a party.

Idem

(15) In a statement of defence a defendant may raise a claim under section 2 of the Wills Variation Act on his or her own behalf, and any other party may deliver a reply.

Idem

(16) A proceeding under the Wills Variation Act is governed by these rules.

Proceedings under the Family Relations Act

(17) A proceeding under Part 3 of the Family Relations Act may be commenced by writ of summons.

Application to petition

(18) Subrules (4) to (12) apply to a petition.

Renewal of original writ of summons

(1) No original writ of summons shall be in force for more than 12 months, but where a defendant named in the writ has not been served, the court, on the application of the plaintiff made before or after the expiration of the 12 months, may order that the original writ of summons be renewed for a period of not more than 12 months which, unless otherwise ordered, shall commence on the date of the order.

Renewal of renewed writ of summons

(2) If a renewed writ of summons has not been served on a defendant named in the writ, the court, on the application of the plaintiff made during the currency of the renewed writ, may order the renewal of the writ for a further period of not more than 12 months which, unless otherwise ordered, shall commence on the date of the order.

Effect of renewal of writ of summons

(3) A renewed writ of summons shall be endorsed by the registrar with the date of the order granting renewal or the date of renewal referred to in the order, and the renewed writ shall remain in force and be available to prevent the operation of any statutory limitation and for all other purposes.

Renewed writ of summons as evidence

(4) The production of a writ of summons endorsed by the registrar in accordance with subrule (3) shall be sufficient evidence for all purposes of its having been renewed and of the commencement of the action on the date of the original writ.

Application to petition

(5) This rule applies to a petition.

Originating application

(1) An application, other than an interlocutory application or an application in the nature of an appeal, may be made by originating application where

(a) an application is authorized to be made to the court,

(b) the sole or principal question at issue is alleged to be one of construction of an enactment, will, deed, oral or written contract, or other document,

(c) the applicant is the only person who is interested in the relief claimed, or there is no person against whom relief is sought,

(d) the relief, advice or direction sought relates to a question arising in the administration of an estate of a deceased person or the execution of a trust, or the performance of an act by a person in the person's capacity as executor, administrator or trustee, or the determination of the persons entitled as creditors or otherwise to the estate or trust property,

(e) the relief, advice or direction sought relates to the maintenance, guardianship or property of infants or other persons under disability,

(f) the relief sought is for payment of funds into or out of court,

(g) the relief sought relates to land and is for

(i) a declaration of a beneficial interest in or a charge on land and of the character and extent of the interest or charge,

(ii) a declaration settling the priority between interests or charges,

(iii) an order cancelling a certificate of title or making a title subject to an interest or charge, or

(iv) an order of partition or sale, or

(h) the relief, advice or direction sought relates to the determination of a claim of solicitor and client privilege.

Originating application by praecipe

(2) Where the nature of an application or the circumstances of a case are such that notice need not be given, an originating application may be made by filing in any registry

(a) a praecipe in Form 2 specifying any rule or other enactment relied on and attaching a draft of the order requested, and

(b) the material on which the application is founded,

and on being satisfied that the application is appropriate for proceeding under this rule, the court may make the order without the application being spoken to.

Originating application by petition

(3) Subject to subrule (2) an originating application must

(a) be commenced by petition in Form 3 and may be issued out of any registry,

(b) specify any rule or other enactment relied on, and

(c) set out briefly in numbered paragraphs the facts on which the application is based.

Idem

(4) A petition shall be supported by affidavit as to all the facts on which the application is based and shall specify those affidavits.

Service

(5) The petition and copies of all affidavits in support shall be served on all persons whose interests may be affected by the order sought.

Ex parte order

(6) In case of urgency the court may make an order ex parte and give directions for service of the order.

Service of affidavits

(7) Unless the court otherwise orders, the person serving an ex parte order, at the time of service, shall also serve a copy of the petition and each affidavit on which the order was granted.

Setting aside ex parte order

(8) On the application of a person affected by an ex parte order the court may set it aside or vary it as the court thinks just.

Affidavits

(9) A respondent who has entered an appearance to a petition may file an affidavit for use at the hearing of the application.

Idem

(10) A respondent who files an affidavit referred to in subrule (9) shall deliver a copy to all other parties of record at least 2 days before the date set for the hearing.

Hearing where no appearance

(11) Where no respondent has entered an appearance to a petition within the time allowed, the petitioner may set the matter down for hearing in chambers by submitting a praecipe to the registry and filing proof of service.

Notice of hearing

(12) Where a respondent has entered an appearance to a petition, the petitioner or that respondent may set the matter down for hearing in chambers by filing a notice in Form 4 in the registry and delivering a copy of the notice to all parties of record.

Idem

(13) Unless otherwise ordered, there shall be at least 3 days between the delivery of a notice of hearing and the day named in the notice for hearing the application.

Notice of hearing served with petition

(14) A petitioner may serve a notice of hearing with the petition, but no time limit shall be abridged by doing so.

Proceedings under Trustee Act

(15) A proceeding for the opinion, advice or direction of a judge under the Trustee Act shall be commenced by petition supported by affidavit.

Idem

(16) The opinion, advice or direction of a judge shall be entered and remain as of record in the same manner as an order of the court and shall be termed as a "judicial opinion", "judicial advice" or "judicial direction", as the case may require.

Service of writ of summons

(1) Service of a writ of summons is required unless the defendant enters an appearance.

How service effected

(2) Service of a document is effected on

(a) an individual by leaving a copy of the document with him or her,

(b) a corporation by leaving a copy of the document with the president, chairman, mayor or other chief officer of the corporation, or with the city or municipal clerk, or with the manager, cashier, superintendent, treasurer, secretary, clerk or agent of the corporation or of any branch or agency of the corporation in the Province, or in the manner provided by the Company Act or any enactment relating to the service of process, and, for the purpose of serving a document upon a corporation whose chief place of business is outside British Columbia, every person who, within the Province, transacts or carries on any of the business of, or any business for, that corporation shall be deemed its agent,

(c) an unincorporated association, including a trade union, by leaving a copy of the document with any officer of the association, or in the case of a trade union, with a business agent,

(d) an infant, in accordance with the Infants Act, and

(e) a mentally incompetent person by leaving a copy of the document

(i) with the person's committee or, where there is no committee, with the person with whom he or she resides or in whose care he or she is or with the person appointed by the court to be served in the mentally incompetent person's place, and

(ii) with the Public Trustee,

and in no case is it necessary to show the original document.

Person appearing

(3) Where a writ of summons or petition has not been served on a person, but the person files an appearance or appears at the trial or hearing, the writ or petition shall be deemed to have been served on that person on the date the person files or appears.

Service on agent

(4) Where a contract has been entered into within the Province by or through an agent residing or carrying on business within the Province on behalf of a principal residing out of the Province, by leave of the court given before the determination of the agent's authority or of the agent's business relations with the principal, a writ of summons or other document in a proceeding relating to or arising out of the contract may be served on the agent, and a copy of the order giving leave and of the writ of summons or other document shall be sent forthwith by registered mail to the principal at his address out of the Province.

Service on Attorney General

(5) A document to be served on the Attorney General shall be served at the Ministry of the Attorney General in the City of Victoria, and is sufficiently served if left during office hours with any solicitor on the staff of the Attorney General at Victoria or mailed by registered mail to the Deputy Attorney General at Victoria.

Service on a party who has given an address for delivery

(6) Service of a document on a party who has given an address for delivery may be effected by delivery of a copy of the document.

Proof of service or delivery

(7) An affidavit of service or delivery shall state when, where, how and by whom service or delivery was effected.

Service or delivery acknowledged by solicitor

(8) Service or delivery of a document upon a solicitor of record, if acknowledged in writing, need not be verified by affidavit.

Row delivery effected

(9) A document may be delivered to a party by

(a) leaving a copy of the document at the party's address for delivery or at the office of the party's solicitor of record, or

(b) transmitting by telephone to the party's fax number for delivery a Fax Cover Memo in Form 9 together with a copy of the document.

Delivery where no address for delivery given

(10) Where the party has no address for delivery as required by these rules, a document may be delivered by mailing a copy by ordinary prepaid mail to the party's solicitor or, if the party has no solicitor, to the last known address of the party.

Service on member of Canadian Armed Forces

(11) Where a member of the Canadian Armed Forces has been served by an officer of the Canadian Armed Forces with a document, proof of the service in the form of a certificate annexed to a copy of the document served, signed by the officer and stating his or her rank and when, where and how service was effected, may be filed as proof of service.

Proof of service by sheriff

(12) Service or delivery by a sheriff may be proved by a certificate in Form 5 endorsed on a copy of the document served or delivered.

Court may order substituted service

(1) Where for any reason it is impractical to serve a document as set out in Rule 11, the court may order substituted service, whether or not there is evidence that the document will probably reach the person to be served or will probably come to the person's attention or that the person is evading service.

How substituted service effected

(2) Substituted service of a document is effected by taking the steps that the court has ordered to bring the document to the attention of the person to be served.

Service of order required

(3) Unless otherwise ordered, a copy of the order for substituted service of a document shall be served with the document, except in the case of an order for substituted service by advertisement, in which case the advertisement shall contain a reference to the order.

Service outside British Columbia without order

(1) Service of an originating process or other document on a person outside British Columbia may be effected without order if

(a) the whole subject matter of the proceeding is land in British Columbia (with or without rents or profits), or the perpetuation of testimony relating to land in British Columbia,

(b) any act, deed, will, contract, obligation or liability affecting land or hereditaments in British Columbia is sought to be construed, rectified, set aside or enforced,

(c) it is sought to construe a will affecting personal property, if the testator was, at the time of his or her death, domiciled in British Columbia,

(d) relief is sought against a person domiciled or ordinarily resident in British Columbia,

(e) the proceeding is for the administration of the personal estate of a deceased person who, at the time of his or her death, was domiciled in British Columbia,

(f) the proceeding is for the execution (as to property in British Columbia) of a trust which ought to be executed according to the law in force in British Columbia and the person to be served is a trustee,

(g) the proceeding is in respect of a breach, committed in British Columbia, of a contract wherever made, even though the breach was preceded or accompanied by a breach, outside British Columbia, which rendered impossible the performance of the part of the contract that ought to have been performed in British Columbia,

(h) the proceeding is founded on a tort committed in British Columbia,

(i) an injunction is sought as to anything to be done in British Columbia, or a nuisance in British Columbia is sought to be prevented or removed, whether or not damages are also sought in addition,

(j) a person outside British Columbia is a necessary or proper party to a proceeding properly brought against some other person duly served in British Columbia,

(k) the proceeding is by a mortgagee or mortgagor in relation to a mortgage of property in British Columbia and seeks relief of the nature of sale, foreclosure, delivery of possession by the mortgagor, redemption, reconveyance or delivery of possession by the mortgagee, whether or not the mortgagee seeks personal judgment or an order for payment of money due under the mortgage,

(1) the proceeding is brought by or on behalf of the Crown or a municipality to recover moneys owing for taxes or other debts due to the Crown or a municipality,

(m) the proceeding is founded upon a contract, or is in respect of a claim for alimony, and the defendant has assets in British Columbia,

(n) the action is brought under the Carriage by Air Act (Canada),

(o) the claim arises out of goods or merchandise sold or delivered in British Columbia,

(p) the proceeding is brought upon a foreign judgment and the defendant or respondent has assets in British Columbia, or

(q) the proceeding is a divorce, a matrimonial action or an adoption.

(2) Except in a divorce proceeding or a proceeding brought under subrule (3), a copy of an originating process served outside British Columbia without leave shall state specifically by endorsement in Form 6 upon which of the grounds referred to in subrule (1) it is claimed that service is permitted under this rule.

Application for leave to service outside the jurisdiction

(3) In any case not provided for in subrule (1), the court may grant leave to serve an originating process or other document outside British Columbia.

Idem

(4) An application for leave to serve a person outside British Columbia shall be made before the originating process or other document is served and shall be supported by an affidavit or other evidence showing in what place or country that person is or may probably be found, and the grounds upon which the application is made, and application may be made ex parte.

Service of order, etc,

(5) Copies of the application for leave to serve, of all affidavits in support of the application, and of the order granting leave to serve shall be served with the originating process or other document.

Time for appearance

(6) Where a person is served with an originating process outside British Columbia, the time for the appearance by that person, after service, shall be

(a) 21 days, in the case of a person residing anywhere within Canada,

(b) 28 days, in the case of a person residing in the United States of America, and

(c) 42 days, in the case of a person residing elsewhere.

The court may shorten the time for appearance on ex parte application.

Where service without leave valid

(7) This rule does not invalidate service outside British Columbia without leave of the court where the document could have been validly served apart from this rule.

Contract containing terms for service

(8) Notwithstanding this rule, the parties to a contract may agree

(a) that the court will have jurisdiction to entertain a proceeding in respect of the contract, and

(b) that service of a document in the proceeding may be effected at any place, within or outside British Columbia, on any party, or on any person on behalf of any party, or in a manner specified or indicated in the contract.

Idem

(9) Service of a document in accordance with an agreement referred to in subrule (8) is effective service, but no contractual stipulation as to service of a document shall invalidate service that would otherwise be effective under these rules.

Application to set aside

(10) Application may be made to set aside service of an originating process or other document served outside British Columbia without entering an appearance, and if it appears that service should not have been made outside British Columbia, the court may

(a) set aside service of the originating process or other document, and

(b) order the person initiating the proceeding to pay the costs of the applicant as special costs.

Definition

(11) In subrules (12) to (14) "Convention" means the Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters, signed at the Hague on November 15, 1965.

Manner of service abroad

(12) A document may be served outside British Columbia

(a) in manner provided by these rules for service in British Columbia,

(b) in a manner provided by the law of the place where service is made if, by that manner of service, the document could reasonably be expected to come to the notice of the person to be served, or

(c) in a state that is a contracting state under the Convention, in a manner provided by or permitted under the Convention.

Proof of service abroad

(13) Service of a document outside British Columbia may be proved

(a) in a manner provided by these rules for proof of service in British Columbia,

(b) in the manner provided for proof of service by the law of the place where service was made regardless of the manner under subrule (12) by which service was effected, or

(c) in accordance with the Convention, if service was effected under subrule (12) (c).

Forms

(14) Where service is desired to be made in accordance with Article 5 of the Convention, Forms 104 and 105 shall be used.

Certificate

(15) Where an authority has, in accordance with Article 6 of the Convention, completed a certificate in Form 106, then the certificate is evidence of the facts stated in it.

Filing of appearance

(1) (a) Where a party wishes to enter an appearance to an originating process other than a petition, the party shall file an appearance in Form 7 and shall deliver a copy of the appearance forthwith to the plaintiff.

(b) Where a party wishes to enter an appearance to a petition, the party shall file an appearance in Form 8 and shall deliver a copy of the appearance forthwith to the petitioner.

(c) An appearance shall state

(i) the name and office address of the party's solicitor, if the party appears by solicitor, or the party's address, if the party appears in person, and

(ii) an address for delivery which, unless it is the office address of the solicitor, shall be within 10 miles of the registry.

(d) An appearance may state a fax number for delivery.

Idem

(2) For the purpose of subrule (1), a place that is within 10 miles of the registry in the City of Vancouver shall be deemed to be also within 10 miles of the registry in the City of New Westminster and a place within 10 miles of the registry in the City of New Westminster shall be deemed to be also within 10 miles of the registry in the City of Vancouver.

Time

(3) Unless the court otherwise orders or these rules otherwise provide, the time for appearance is 7 days from the service of the originating process.

Idem

(4) Notwithstanding subrule (3), a party may enter an appearance at any time.

Conditional appearance

(5) Conditional appearances are abolished and an appearance purporting to be conditional shall be deemed to be unconditional.

Idem

(6) Where a person served with an originating process has not entered an appearance and alleges that

(a) the process is invalid or has expired,

(b) the purported service of the process was invalid, or

whether or not the person has entered an appearance, alleges that

(c) the court has no jurisdiction over him in the proceeding or should decline jurisdiction,

the person may apply to the court for a declaration to that effect.

Idem

(7) Where an application is made under Rule 13 (10) or subrule (6) of this rule, the plaintiff or petitioner shall take no further step in the proceeding against the applicant, except with leave of the court, until the application has been concluded.

Idem

(8) An application made under Rule 13 (10) or subrule (6) of this rule does not constitute acceptance of the jurisdiction of the court.

Party's death, bankruptcy, etc.

(1) Where a party dies or becomes bankrupt, or a corporate party is wound up or otherwise ceases to exist, but the claim survives, the proceeding shall not abate by reason of the death or bankruptcy or the corporate party having been wound up or ceasing to exist.

Idem

(2) Whether or not the claim survives, a proceeding shall not abate by reason of either party dying between the verdict or finding on the issues of fact and the entry of judgment, but judgment may be entered notwithstanding the death.

Assignment or conveyance of interest

(3) Where by assignment, conveyance or death, an estate, interest or title devolves or is transferred, a proceeding relating thereto may be continued by or against the person upon whom or to whom that estate, interest or title has devolved or been transferred.

Change or transmission of interest or liability

(4) Where a change or transmission of interest or liability of a party has taken place or a person interested comes into existence after the commencement of a proceeding and it becomes necessary or desirable

(a) that a person not already a party should be made a party, or

(b) that a person already a party should be made a party in another capacity,

the court may order that the proceeding be carried on between the continuing parties and the new party.

Removing, adding or substituting party

(5)

(a) At any stage of a proceeding, the court on application by any person may

(i) order that a party, who is not or has ceased to be a proper or necessary party, cease to be a party,

(ii) order that a person, who ought to have been joined as a party or whose participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated upon, be added or substituted as a party, and

(iii) order that a person be added as a party where there may exist, between the person and any party to the proceeding, a question or issue relating to or connected

(A) with any relief or remedy claimed in the proceeding, or

(B) with the subject matter of the proceeding,

which in the opinion of the court it would be just and convenient to determine as between the person and that party.

(b) No person shall be added or substituted as a plaintiff or petitioner without the person's consent.

Procedure where order made

(6) Unless the court otherwise orders, where an order is made under subrule (4) or (5) adding or changing a party,

(a) the originating process shall be amended, and a reference to the order and the date on which the amendment is made shall be endorsed upon the amended process,

(b) no further steps shall be taken against the person made a party under the order until the amended process and a copy of the order are served upon the person,

(c) the person made a party under the order may apply to the court to vary or discharge the order within 7 days from its service, and

(d) the rules as to service and entering an appearance apply to the amended process.

Effect of order

(7) Unless the court otherwise orders, where a person becomes a party in substitution for a former party, all things done in the proceeding before the person became a party shall have the same effect in relation to that person as they had to the former party, but the substituted party shall enter an appearance.

Prosecution of action where plaintiff or petitioner dies

(8) Where a plaintiff or petitioner has died and the proceeding may be continued, the defendant or respondent may apply to the court for an order that the person entitled ed to proceed do proceed within the time that the court orders and that, in default, the proceeding be dismissed for want of prosecution.

Idem

(9) Where a proceeding is dismissed under subrule (8), an order for payment of costs may be made and enforced against the assets of the deceased's estate.

Change of solicitor

(1) A party to a proceeding

(a) may change solicitors,

(b) having been acting on his own behalf, may engage a solicitor to act,

(c) having been represented by a solicitor, may discharge the solicitor and act on his own behalf, or

(d) may change his address for delivery or fax number for delivery,

but until copies of notice of the change in Form 10, 11 or 12 have been filed and delivered to the other parties of record the other parties are entitled to proceed on the basis that there has been no change of representation or address for delivery.

Order that solicitor has ceased to Act

(2) Where

(a) a solicitor for a party has died, becomes bankrupt, cannot be found or for any reason is unable to practise, and

(b) the party has not given notice of change of solicitor or of intention to act in person in accordance with subrule (1),

the court on the application of any other party may order that the solicitor has ceased to be the solicitor of the first mentioned party.

Idem

(3) Where an order is made under subrule (2), the applicant shall deliver a copy to the other parties of record.

Order on application of solicitor

(4) Where a solicitor who has acted for a party in a proceeding has ceased to act and the party has not given a notice of change in accordance with subrule (1), the court, on the application of the solicitor, may declare that the solicitor has ceased to be the solicitor acting for the party and, where applicable,

(a) that the solicitor's office is not the address for delivery of the party and give directions as to a new address for delivery, and

(b) that the solicitor's fax number for delivery may no longer be used for delivery and give directions for a new fax number for delivery.

Idem

(5) Until copies of the order referred to in subrule (4) have been delivered to the other parties of record, they are entitled to proceed on the basis that the solicitor is continuing to act.

Affidavit of service

(1) If a defendant has not filed an appearance to a writ of summons and the time for doing so as set out in Rule 14 (3) has expired and the plaintiff wishes to proceed under this rule, the plaintiff shall file proof of service of the writ on that defendant.

Affidavit of search

(2) It is not necessary to file an affidavit of search before proceeding under this rule.

Claim for debt or liquidated demand

(3) Where the plaintiff's claim against a defendant is solely for recovery of a debt or liquidated demand and that defendant has not filed an appearance within the time set out in Rule 14 (3), the plaintiff may enter final judgment in Form 86 against that defendant for a sum not exceeding that claimed, interest if entitled and costs, and may proceed with the action against any other defendant.

Idem

(4) For the purposes of subrule (3), a claim may be treated as a claim for a liquidated demand notwithstanding that part of the claim is for interest accruing after the date of the writ, and the interest shall be computed from the date of the writ to the date of entering judgment.

Claim for unliquidated damages

(5) Where the plaintiff's claim against a defendant is solely for unliquidated damages, and that defendant has not filed an appearance within the time set out in Rule 14 (3), the plaintiff may enter judgment in Form 86 against that defendant for damages to be assessed and costs, and may proceed with the action against any other defendant.

Claim for detention of goods

(6) Where the plaintiff's claim against a defendant relates solely to the detention of goods, and that defendant has not filed an appearance within the time set out in Rule 14 (3), the plaintiff, at the plaintiff's option, may enter either

(a) judgment in Form 86 against that defendant for the delivery of the goods, or their value to be assessed, and costs, or

(b) judgment in Form 86 for the value of the goods to be assessed and costs,

and may proceed with the action against any other defendant.

Multiple claims

(7) Where the plaintiff's claim against a defendant includes one or more of the claims referred to in subrule (3), (5) or (6) and another claim, and that defendant has not filed an appearance within the time set out in Rule 14 (3), the plaintiff may enter against that defendant judgment, in respect of any claim, as the plaintiff would be entitled to enter under those subrules if that were the plaintiff's only claim, and may proceed with the action against that defendant and any other defendant.

Method of assessment

(8) Where a plaintiff has obtained judgment for damages or value to be assessed, the plaintiff may set the assessment down for trial but, unless the court otherwise orders, it shall be tried at the same time as the trial of the action or issues against any other defendant.

Plaintiff may proceed

(9) On an application made by the plaintiff in an action not referred to in subrules (3), (5) and (6),

(a) where the defendant has not filed an appearance within the time provided for in these rules or an order of the court, and

(b) not less than the later of

(i) 14 days from the time limited for appearance, or

(ii) the date on which a statement of claim, if not endorsed on or served with the writ of summons, has either been mailed to the defendant at the defendant's last known address or delivered in another manner that the court may order,

the court may exercise any of its powers under Rule 18 (2).

Idem

(10) Where a writ has been served, but, by reason of the defendant having after service satisfied the claim, it has become unnecessary for the plaintiff to proceed with the action, then, if the defendant does not file an appearance within the time set out in Rule 14 (3), the plaintiff may, with the leave of the court, enter judgment against that defendant for costs.

Application to judge or master

(11) Where the registrar is not certain that a plaintiff's claim against a defendant relates to a claim within subrule (3), (5), (6) or (7), the registrar may refuse to enter judgment and the plaintiff may apply to a judge or master in chambers for default judgment.

Court may set aside or vary default judgment

(12) The court may set aside or vary any judgment entered pursuant to this rule.

Alternative methods of assessment

(13) Where a plaints has obtained judgment under subrule (5), (6) or (7),the plaintiff may, instead of proceeding to trial to assess the damages or the value of the goods, apply to the court, and the court may

(a) assess the damages or value of the goods summarily upon affidavit or other evidence,

(b) order an assessment, an inquiry or an accounting,

(c) give directions as to the trial or hearing of the assessment or determination of value, or

(d) make such other order as it thinks just.

Application for

(1) In an action in which an appearance has been entered, the plaintiff, on the ground that there is no defence to the whole or part of a claim, or no defence except as to amount, may apply to the court for judgment on an affidavit setting out the facts verifying the claim or part of the claim and stating that the deponent knows of no fact which would constitute a defence to the claim or part of the claim except as to amount.

Order for

(2) On the hearing of an application under subrule (1), the court may exercise any of its powers under Rule 52 (8) and may

(a) grant judgment for the plaintiff on the whole or part of the claim and may impose terms on the plaintiff', including a stay of execution of any judgment, until the determination of a defendant's counterclaim or third party proceeding,

(b) allow the defendant to defend the whole or part of the claim either unconditionally or on terms relating to the giving of security, time, the mode of trial or otherwise, and may give directions under Rule 40 (44) and (52) for the hearing of evidence at trial,

(c) with the consent of all parties, dispose of the action finally in a summary way, with or without pleadings,

(d) award costs, or

(e) grant any other order it thinks just.

Continuing proceedings after summary judgment

(3) Where a plaintiff obtains judgment under subrule (2), the plaintiff may continue the action in respect of any remaining part of the claim, any other claim or against any other defendant.

Summary judgment on counterclaim or third party proceeding

(4) This rule applies to a counterclaim or third party proceeding.

Setting aside or varying summary judgment

(5) A judgment given against a party who does not appear at the hearing of an application under this rule may be set aside or varied by the court.

Summary judgment for defendant

(6) In an action in which an appearance has been entered, the defendant may, on the ground there is no merit in the whole or part of the claim, apply to the court for judgment on an affidavit setting out the facts verifying the defendant's contention that there is no merit in the whole or part of the claim and stating that the deponent knows of no facts which would substantiate the whole or part of the claim.

Order for summary judgment for defendant

(7) On the hearing of an application under subrule (6) the court may

(a) dismiss the action,

(b) make any order referred to in subrule (2),

(c) grant any other order it thinks just.

Application for

(1) In

(a) an action in which a defence has been filed,

(b) an originating application in respect of which a trial has been ordered under Rule 52 (11) (d), or

(c) a contested proceeding under the Divorce Act, 1985 (Canada)

a party may apply to the court for judgment either upon an issue or generally.

Notice of application

(2) Unless otherwise ordered, there shall be at least 14 days between the delivery of the notice of motion and the day named in the notice for the hearing of the application.

Evidence on application

(3) On an application under this rule, the applicant and each other party of record may adduce evidence, which shall be by affidavit, and the court may adjourn the application and make an order provided for in Rule 52 (8).

Adjournment

(4) Where an application for judgment is adjourned under subrule (3), the judge making the order is not seized of the application, unless the judge otherwise orders.

Judgment

(5) On the hearing of the application, the court may grant judgment in favour of any party either upon an issue or generally, unless

(a) the court is unable on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or

(b) the court is of the opinion that it would be unjust to decide the issues on the application,

and may impose terms respecting enforcement of the judgment, including a stay of execution, as it thinks just, and may award costs.

No further application without leave

(6) Where the court does not grant judgment under subrule (5), the applicant may not make a further application under subrule (1) without leave of the court.

Directions

(7) Where the court is unable to grant judgment under subrule (5), and considers that the proceeding ought to be expedited by giving directions, the court may order the trial of a proceeding generally or on an issue and may order that

(a) the pleadings be amended or closed within a fixed time,

(b) a party file and deliver, within a fixed time, to each party as specified by the judge, a list of documents or an affidavit verifying a list of documents in accordance with the directions that the judge may give,

(c) interlocutory applications be brought within a fixed time,

(d) a genera1 application for directions be brought within a fixed time,

(e) a statement of agreed facts be filed within a fixed time,

(f) all procedures for discovery be conducted in accordance with a schedule and plan directed by the court, and the plan may set limitations on those discovery procedures,

(g) the obligation to pay conduct money to any of the parties or persons to be examined be allocated in the manner specified in the order,

(h) an examination for discovery or a pre-trial examination of a witness be of limited duration,

(i) a party deliver a written summary of the proposed evidence of a witness within a fixed time,

(j) the evidence in chief of a witness be of limited duration,

(k) the evidence in chief of a witness may be given in whole or part by the production of a written statement,

(1) experts who have been retained by the parties meet, on a without prejudice basis, to determine those matters on which they agree and to identify those matters on which they do not agree,

(m) evidence be adduced in a manner provided by Rule 40 (44) and (52),

(n) a party deliver a written summary of the whole or part of the party's argument within a fixed time,

(o) the submissions of counsel be of limited duration,

(p) a pre-trial conference be held at a time and place to be fixed at which any of the orders in this subrule may be made, and,

(q) with the approval of the Chief Justice, the proceeding be set for trial on a particular date or upon a particular trial list.

Judge not to preside

(8) A judge who has heard an application under this rule shall not preside at the trial unless all parties of record file a consent.

Right to vary

(9) A court may, before or at trial, vary or set aside an order made under subrule (7).

Order where jury notice filed

(10) A party may apply to the court for judgment under subrule (5) notwithstanding the fact that a party may have filed a notice under Rule 39 (26) requiring that the trial of the action be heard with a jury.

Contents

(1) A pleading shall be as brief as the nature of the case will permit and must contain a statement in summary form of the material facts on which the party relies, but not the evidence by which the facts are to be proved.

Idem

(2) The effect of any document or the purport of any conversation referred to in a pleading, if material, shall be stated briefly and the precise words of the documents or conversation shall not be stated, except in so far as those words are themselves material.

Idem

(3) A party need not plead a fact if it is presumed by law to be true or if the burden of disproving it lies on the other party.

Idem

(4) A party need not plead the performance of a condition precedent necessary for the party's case, unless the other party has specifically denied it in that other party's pleadings.

Form

(5) A pleading shall be divided into paragraphs numbered consecutively, each allegation being contained in a separate paragraph.

Matters arising since commencement

(6) A party may plead a matter which has arisen since the commencement of the proceeding.

Inconsistent allegations

(7) A party shall not plead an allegation of fact or a new ground or claim inconsistent with the party's previous pleading.

Alternative allegations

(8) Subrule (7) does not affect the right of a party to make allegations in the alternative or to amend or apply for leave to amend a pleading.

Raising a point of law

(9) A party may raise any point of law in a pleading.

Status admitted

(10) Unless the incorporation of a corporate party or the office or status of a party is specifically denied, it shall be deemed to be admitted.

Where particulars necessary

(11) Where the party pleading relies on misrepresentation, fraud, breach of trust, wilful default or undue influence, or where particulars may be necessary, full particulars, with dates and items if applicable, shall be stated in the pleading. If the particulars of debt, expenses or damages are lengthy, the party may refer to this fact and instead of pleading the particulars shall deliver the particulars in a separate document either before or with the pleading.

Particulars in libel or slander

(12) In an action for libel or slander,

(a) where the plaintiff alleges that the words or matter complained of were used in a derogatory sense other than their ordinary meaning, the plaintiff shall give particulars of the facts and matters on which the plaintiff relies in support of that sense, and

(b) where the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and that in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, the defendant shall give particulars stating which of the words complained of the defendant alleges are statements of fact and of the facts and matters relied on in support of the allegation that the words are true.

Set-off or counterclaim

(13) A defendant in an action may set off or set up by way of counterclaim any right or claim, whether the set-off or counterclaim is for damages or not, so as to enable the court to pronounce a final judgment on all claims in the same action.

Filing and delivery of pleadings

(14) A pleading shall be filed and a copy delivered to all parties of record and shall contain the style of proceeding, the description of the pleading, and the name and address for delivery of the party delivering the same.

Pleading after the statement of claim

(15) In a pleading subsequent to a statement of claim a party shall plead specifically any matter of fact or point of law that

(a) the party alleges makes a claim or defence of the opposite party not maintainable,

(b) if not specifically pleaded, might take the other party by surprise, or

(c) raises issues of fact not arising out of the preceding pleading.

Order for particulars

(16) The court may order a party to deliver further and better particulars of a matter stated in a pleading.

Demand for particulars

(17) Before applying to the court for particulars, a party shall demand them in writing from the other party.

Demand for particulars not a stay of proceedings

(18) A demand for particulars does not operate as a stay of proceedings or give an extension of time, but a party may apply for an extension of time for delivering a pleading on the ground that the party cannot answer that pleading until particulars are provided.

Denial required if fact not admitted

(19) An allegation of fact in a pleading, if not denied or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant or mentally incompetent person.

General denial sufficient

(20) It is not necessary in a pleading to deny specifically each allegation made in the preceding pleadings, but a general denial is sufficient with respect to those allegations which are not admitted.

Substance to be answered

(21) If a party in a pleading denies an allegation of fact in the previous pleading of the opposite party, the party shall not do so evasively but shall answer the point of substance.

Denial of contract

(22) If a contract, promise or agreement is alleged in a pleading, a bare denial of it by the opposite party shall be construed only as a denial of fact of the express contract, promise or agreement alleged, or of the matters of fact from which it may be implied by law, and not as a denial of the legality or sufficiency in law of that contract, promise or agreement.

Allegation of malice

(23) It is sufficient to allege malice, fraudulent intention, knowledge or other condition of the mind of a person as a fact, without setting out the circumstances from which it is to be inferred.

Scandalous, frivolous or vexatious matters

(24) At any stage of a proceeding the court may order to be struck out or amended the whole or any part of an endorsement, pleading, petition or other document on the ground that

(a) it discloses no reasonable claim or defence as the case may be,

(b) it is unnecessary, scandalous, frivolous or vexatious,

(c) it may prejudice, embarrass or delay the fair trial or hearing or the proceeding, or

(d) it is otherwise an abuse of the process of the court,

and the court may grant judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs.

Idem

(25) Where on the filing of a document a registrar considers that the whole or any part of an endorsement, pleading, petition or other document could be the subject of an order under subrule (24), the registrar may, notwithstanding any other provision of these rules, retain it and all filed copies of it, and refer it to the court and the court may, after a summary hearing as the court directs, make an order under subrule (24).

Idem

(26) Where the court makes such an order, the registrar shall give notification of the order, in the manner directed by the court, to the person who filed the document, and that person may, within 7 days of being notified, apply to the court and the court may confirm, vary or rescind the order.

Idem

(27) No evidence is admissible on an application under subrule (24) (a).

General relief

(28) A pleading need not ask for general or other relief.

General damages shall not be pleaded

(29) Where general damages are claimed, the amount of the general damages claimed shall not be stated in the originating process or in any pleading.

Form

(1) A statement of claim must be in Form 13.

Delivery

(2) The plaintiff shall file and deliver a statement of claim either with the writ of summons or within 21 days after appearance.

Altering claim from that endorsed on the writ

(3) The plaintiff may, in a statement of claim, alter, modify or extend the claim without amending the endorsement on the writ.

Place of trial

(4) A statement of claim must show the proposed place of trial.

Specific relief

(5) A statement of claim must state the specific relief which the plaintiff claims, and may ask for relief in the alternative.

Form

(1) A statement of defence must be in Form 14.

Bills of exchange

(2) In an action on a bill of exchange, a promissory note or a cheque, a statement of defence in denial must deny some matter of fact, for example, the drawing, making, endorsing, accepting, presenting or notice of dishonour of the bill or note.

Contracts

(3) In an action for money due under a contract, a statement of defence must specifically deny such matters of fact, from which the liability of the defendant is alleged to arise, as are disputed.

Damages

(4) No denial is necessary as to damages claimed or their amount, but they shall be deemed to be put in issue in all cases unless expressly admitted.

Delivery

(5) Where a defendant has entered an appearance the defendant shall file and deliver a statement of defence and any counterclaim to the plaintiff within 14 days from the time limited for appearance or from the delivery of the statement of claim, whichever is later.

Counterclaim

(6) A counterclaim must be pleaded separately, must be in Form 15 and may be included in the same document as the statement of defence.

Idem

(7) The parties shall be referred to in a counterclaim in their original capacities and the terms "plaintiff by way of counterclaim" and "defendant by way of counterclaim" shall not be used except as provided in subrules (8) to (11).

Counterclaim against plaintiff and another person

(8) Where a defendant sets up a counterclaim that raises questions between that defendant and the plaintiff along with any other person, the defendant may join that person as a party against whom the counterclaim is made.

Idem

(9) Where the person referred to in subrule (8) is not a party to the original action, the person's name shall be added to the style of proceeding as "defendant by counterclaim".

Idem

(10) Where the person referred to in subrule (8) is a party to the original action, the defendant shall deliver the counterclaim to that person within the period in which the defendant is required to deliver it to the plaintiff.

Idem

(11) Where the person referred to in subrule (8) is not a party to the original action, a notice in Form 16 shall be filed, and, together with the counterclaim, be served on that person, and the person may enter an appearance to it, and Rules 17, 18 and 25 apply as though that person were a defendant to a writ of summons.

Defence to counterclaim

(12) A person served with a counterclaim becomes a defendant to the counterclaim from the time of service with the same rights and obligations in respect of conducting a defence to the counterclaim or otherwise as a defendant.

Separate trial of counterclaim

(13) Where, on the application of a party against whom a counterclaim is made, it appears that the subject matter of the counterclaim ought to be dealt with separately, the court may order that the counterclaim be struck out or tried separately or may make any other order it thinks just.

Where action stayed or discontinued

(14) Where, in an action in which the defendant has set up a counterclaim, the action of the plaintiff is stayed, discontinued or dismissed, the counterclaim may proceed.

Judgment

(15) Where a set-off or counterclaim establishes a defence to the plaintiff's claim, the court may give judgment for the defendant for any balance in the defendant's favour or for other relief as the court thinks just.

Issue of third party notice

(1) Where a defendant who has entered an appearance claims against any person, whether or not that person is a party to the action (in these rules called the third party),

(a) that the defendant is entitled to contribution or indemnity,

(b) that the defendant is entitled to any relief or remedy relating to or connected with the original subject matter of the action and substantially the same as some relief or remedy claimed by the plaintiff, or

(c) that any question or issue relating to or connected with the original subject matter is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined, not only as between the plaintiff and the defendant, but also as between the plaintiff and defendant and the third party, or between any or either of them,

the defendant may issue, in the same manner as a writ of summons, a third party notice in Form 17 setting out a statement of the defendant's claim against the third party.

Delivery and service of third party notice

(2) A defendant issuing a third party notice shall forthwith deliver to the plaintiff a copy of the notice and serve the third party with the notice and copies of all the pleadings delivered to that time.

Issue of third party notice by a third party

(3) Where a person served with a third party notice claims to be entitled to claim over against another person, that person may, in the same manner as a defendant, issue a third party notice, and this rule applies.

Application to set aside notice

(4) At any time, upon application, the court may set aside a third party notice.

Appearance

(5) A third party may enter an appearance in accordance with Rule 14.

Effect of appearance by third party

(6) Where the third party has entered an appearance to the third party notice, the third party shall

(a) be served with all subsequent pleadings in the action, and

(b) be in the same position in the third party proceedings as though the third party were a defendant in an action brought by the party issuing the third party notice as plaintiff against him for the relief claimed.

Statement of defence

(7) Where a third party has entered an appearance and desires to dispute his liability to the party issuing the notice, the third party shall file and deliver a statement of defence to the party issuing the third party notice within 14 days after entering the appearance.

Reply

(8) The defendant shall file and deliver any reply to a third party's statement of defence within 7 days after delivery of that statement.

Default by third party

(9) Where the third party has not filed an appearance to or has not filed and delivered a statement of defence to a third party notice,

(a) the third party shall be deemed to admit the validity of any judgment given, whether by consent or otherwise, against the party issuing the third party notice, and

(b) if the party issuing the third party notice has satisfied the judgment against him, that party may enter judgment against the third party to the extent of the contribution or indemnity claimed in the notice and with the leave of the court in respect of any other relief or remedy claimed therein, or

(c) if the party issuing the third party notice has not satisfied the judgment, that party or the judgment holder may apply to the court for judgment, as the nature of the case requires, including judgment for the judgment holder against the third party.

Statement of defence to statement of claim

(10) Where the third party has entered an appearance, the third party may file and deliver a statement of defence to the plaintiff's statement of claim, raising any defence open to the defendant, and then the third party shall be in the same position with respect to the conduct of the action as though the third party were a defendant.

Application for directions

(11) A party affected by third party proceedings may apply to the court for directions.

Third party proceedings not to prejudice plaintiff

(12) To avoid prejudice or unnecessary delay to the plaintiff by third party proceedings, the court may impose terms to prevent the prejudice or delay.

Trial

(13) The issue between the defendant and the third party may be tried at the time the court may direct.

Form

(1) A reply must be in Form 18.

Delivery of reply

(2) A plaintiff shall file and deliver any reply within 7 days after the statement of defence has been delivered.

Pleading subsequent to reply

(3) No pleading subsequent to reply shall be filed or delivered without leave of the court.

Statement of defence to counterclaim

(4) Where a counterclaim is pleaded, the statement of defence to it shall be in Form 19 and shall be subject to the rules applicable to statements of defence.

Close of pleadings

(5) Where no reply to a statement of defence, to a statement of defence to a counterclaim, or to a subsequent pleading is delivered within the time allowed, the pleadings are closed and material statements of fact in the pleading last delivered shall be deemed to have been denied and put in issue.

Failure to reply

(6) Where no reply to a statement of defence is delivered, a joinder of issue on that defence is implied.

No joinder of issue

(7) No reply that is a simple joinder of issue shall be filed or delivered.

When amendment may be made

(1) A party may amend an originating process or pleading issued or filed by the party at any time with leave of the court, and, subject to Rules 15 (5) and 31 (5)

(a) once without leave of the court, at any time before delivery of the notice of trial or hearing, and

(b) at any time with the written consent of all the parties.

How amendments made

(2) Unless the court otherwise orders, where a party amends a document under subrule (1), a new document, being a copy of the original document but amended and bearing the date of the original, shall be filed.

Idem

(3) An amendment to a document must be dated, identified and underlined.

Service of amended pleading

(4) Unless the court otherwise orders, service on a party of an amended originating process or pleading shall be required if the original has been served on that party and no appearance has been entered or, in the case of a third party notice, no statement of defence has been filed.

Amendment at trial

(5) Unless the court otherwise orders, where an amendment is granted during a trial or hearing, an order need not be taken out and the amended document need not be filed, delivered or served.

Service or delivery of amended document

(6) Unless the court otherwise orders, where a party amends a document under subrule (1), the party shall deliver copies of the amended document to all the parties of record within 7 days after its amendment and, where service is required under subrule (4), the party shall serve copies on the persons required to be served as soon as reasonably possible and before taking any further step in the proceeding.

Time for appearance to amended writ or petition

(7) Where a party is served with an amended writ of summons or petition under subrule (4), the party has the same period of time for entering an appearance as that to which the party was entitled with respect to the original document.

Amendments consequent upon amendment

(8) Where an amended statement of claim, counterclaim, or third party notice is served on or delivered to an opposing party,

(a) the opposing party, if he has already delivered a statement of defence, may amend that statement of defence, but only with respect to any matter raised by the amendments to the statement of claim, counterclaim. or third party notice, and

(b) the period for filing and delivering a statement of defence or amended statement of defence is 14 days after the amended pleading is delivered to him.

Failure to deliver amended statement of defence

(9) Where a party does not deliver an amended statement of defence as provided in subrule (8), the party shall be deemed to rely upon his original statement of defence.

Default in delivery of statement of claim

(1) Where a plaintiff has not filed and delivered a statement of claim within the time allowed, the court may, on the application of the defendant, order the action to be dismissed or may make any other order it thinks just.

Affidavit proving delivery

(2) Where a defendant fails to deliver a statement of defence within the time allowed and the plaintiff wishes to proceed under this rule, the plaintiff shall file proof of delivery of the statement of claim and the defendant's failure to deliver a statement of defence.

Affidavit of search

(3) It is not necessary to file an affidavit of search before proceeding as permitted under this rule.

Claim for debt or liquidated demand

(4) Where the plaintiff's claim against a defendant is solely for recovery of a debt or liquidated demand, and that defendant fails to file and deliver a statement of defence within the time allowed, the plaintiff may enter final judgment in Form 86 against that defendant for a sum not exceeding that claimed, interest if entitled and costs, and may proceed with the action against any other defendant.

Idem

(5) For the purpose of subrule (4), a claim may be treated as a claim for a liquidated demand notwithstanding that part of the claim is for interest accruing after the date of the writ of summons, and the interest shall be computed from the date of the writ to the date of entering judgment.

Claim for unliquidated damages

(6) Where the plaintiff's claim against a defendant is solely for unliquidated damages, and that defendant fails to file and deliver a statement of defence within the time allowed, the plaintiff may enter judgment in Form 86 against that defendant for damages to be assessed and costs, and may proceed with the action against any other defendant.

Claim for detention of goods

(7) Where the plaintiff's claim against a defendant relates solely to the detention of goods, and that defendant fails to file and deliver a statement of defence within the time allowed, the plaintiff, at the plaintiff's option, may enter either

(a) judgment in Form 86 against that defendant for the delivery of the goods, or their value to be assessed and costs, or

(b) judgment in Form 86 for the value of the goods to be assessed and costs,

and may proceed with the action against any other defendant.

Multiple claims

(8) Where the plaintiff's claim against a defendant is for one or more of the claims referred to in subrule (4), (6) or (7), or for another claim, and that defendant fails to file and deliver a statement of defence within the time allowed, the plaintiff may enter against that defendant judgment, in respect of any claim, as the plaintiff would be entitled to enter under those subrules if that were the plaintiff's only claim, and may proceed with the action against that defendant and any other defendant.

Application to judge or master

(9) Where the registrar is not certain that a plaintiff's claim against a defendant relates to a claim within subrule (4), (6), (7) or (8), the registrar may refuse to enter judgment and the plaintiff may apply to a judge or master in chambers for default judgment.

No defence to part of claim

(10) Where a statement of defence answers only part of the claim in the statement of claim, the plaintiff may apply to the court for such judgment in respect of the unanswered claim as the plaintiff would be entitled to enter under subrules (4) to (7) if no statement of defence were filed.

No execution on default judgment where there is a counterclaim

(11) Unless the court otherwise orders, where there is a counterclaim the plaintiff shall not issue execution on a judgment obtained under this rule until the entire action has been disposed of.

Default in other claims

(12) In an action for a claim not referred to in subrules (4) to (7), where the defendant fails to file and deliver a statement of defence, the court, on the application of the plaintiff, may exercise any of its powers under Rule 18 (2).

Default by one of several defendants

(13) Where in any action mentioned in subrule (12) there are several defendants and one or more defaults in filing and delivering a statement of defence, the court, on the application of the plaintiff, may proceed as in subrule (12) or direct the matter to stand until the trial of the action.

Method of assessment

(14) Where a plaintiff has obtained judgment for damages or value to be assessed, the plaintiff may set the assessment down for trial but, unless the court otherwise orders, it shall be tried at the same time as the trial of the action or issues against any other defendant.

Court may set aside or vary default judgment

(15) The court may set aside or vary any judgment entered under this rule.

Alternative methods of assessment

(16) Where a plaintiff has obtained judgment under subrule (6), (7) or (8), instead of proceeding to trial to assess the damages or the value of the goods, the plaintiff may apply to the court and the court may

(a) assess the damages or value of the goods summarily upon affidavit or other evidence,

(b) order an assessment, an inquiry or an accounting,

(c) give directions as to the trial or hearing of the assessment or determination of value, or

(d) make any other order it thinks just.

Delivery of and answer to demand for discovery of documents

(1) A party to an action may deliver to any other party a demand in Form 92 for discovery of the documents which are or have been in the party's possession or control relating to any matter in question in the action, and the other party shall comply with the demand within 21 days by delivering a list, in Form 93, of the documents that are or have been in the party's possession or control relating to every matter in question in the action enumerating the documents in a convenient order with a short description of the documents.

Claim for privilege

(2) Where it is claimed that a document is privileged from production, the claim must be made in the list of documents with a statement of the grounds of the privilege.

Affidavit verifying list of documents

(3) The court may order a party to deliver an affidavit verifying a list of documents.

Application respecting a specific document

(4) The court, at any time, on the application of a party, may require any other party to deliver an affidavit stating whether a document or class of documents specified or described in the application is or has been in the other party's possession or control and, if not then in that party's possession or control, when the party parted with it and what has become of it.

Idem

(5) An application for an order under subrule (4) shall be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought has or at some time had in his possession or control the document or class of documents specified or described in the application and that the document relates to one or more of the matters in question in the action.

Cross-examination on affidavit

(6) The court may order a party to attend and be cross-examined on an affidavit delivered under this rule.

Inspection of documents

(7) A party who has delivered a list of documents to any other party shall allow the other party to inspect and copy the documents listed, except those which he objects to produce, and when he delivers the list he shall also deliver a notice stating a place where the documents may be inspected and copied during normal business hours.

Production of document referred to in pleadings

(8) At any time a party may deliver a notice to any other party, in whose pleadings or affidavits reference is made to a document, requiring the other party to produce that document and, within 2 days, the other party shall deliver a notice stating a place where the document may be inspected and copied during normal business hours or stating that he objects to producing the document and the grounds of the objection.

Copies of documents

(9) Where a party is entitled to inspect documents in the possession of another party, the other party shall, on request, deliver copies of any of the documents, if reproducible, on payment in advance of the cost of reproduction and delivery.

Order to produce document

(10) The court may order the production of a document for inspection and copying by any party or by the court at a time and place and in the manner it thinks just.

Idem

(11) Where a document is in the possession or control of a person who is not a party, the court, on notice to the person and all other parties, may order production and inspection of the document or preparation of a certified copy that may be used instead of the original. An order under Rule 41 (16) in respect of an order under this subrule may be made if that order is endorsed with an acknowledgment by the person in possession or control of the document that the person has no objection to the terms of the proposed order.

Inspection of document by court

(12) Where, on an application for production of a document, production is objected to, the court may inspect the document for the purpose of deciding the validity of the objection.

Supplementary list of documents

(13) Where, after a list of documents has been delivered under this rule,

(a) it comes to the attention of the party delivering it that the list was inaccurate or incomplete, or

(b) a document relating to a matter in question in the action comes into the party's possession or control after the delivery of the list,

the party shall deliver forthwith a supplementary list specifying the inaccuracy or document.

Party may not use document

(14) Unless the court otherwise orders, where a party fails to make discovery of or produce for inspection or copying a document as required by this rule, the party may not put the document in evidence in the proceeding or use it for the purpose of examination or cross-examination.

Determination of issue before discovery

(15) Where the party from whom discovery or inspection of document is sought objects, the court may, if satisfied that for any reason it is desirable that any issue or question in dispute in a proceeding should be determined before deciding on the right to discovery or inspection, order that the issue or question be determined first and reserve the question of discovery or inspection.

Leave of the court not required

(1) Subject to this rule and to Rule 39 (22), an examination for discovery may take place without leave of the court at any time before the trial of an action.

Oral examination on oath

(2) An examination for discovery is an oral examination on oath.

Of party adverse in interest

(3) A party to an action may examine for discovery any party adverse in interest.

Examination of director, etc.

(4) A person who is or has been a director, officer, employee, agent or external auditor of a party may be examined for discovery, but that party may apply to the court at any time before the examination for an order requiring the examining party to examine instead of that person some other person who is or has been a director, officer, employee, agent or external auditor of the party.

Examination of employees, agents, etc.

(5) (a) A party who has examined for discovery any party adverse in interest shall not examine an employee or agent of that adverse party without leave of the court.

(b) A party who has examined an employee or agent of another party shall not examine that other party without leave of the court.

(c) A party who has examined a person referred to in subrule (4) shall not examine any other person referred to in that subrule without leave of the court.

Corporation to name person for examination

(6) Where a corporation is a party, it shall disclose the name of a person to be examined who is knowledgeable concerning the matters in question in the action.

Examination of partners

(7) Where a partnership is a party, one or more of the partners may be examined for discovery.

Examination of party for whose benefit action brought

(8) Subject to subrule (11), a person for whose immediate benefit an action is brought or defended may be examined for discovery.

Examination of assignor

(9) Where an action is brought by an assignee, the assignor may be examined for discovery.

Examination of guardian and infants

(10) Where an infant is a party, the infant, his or her guardian and his or her guardian ad litem may be examined for discovery.

Examination of mentally incompetent person

(11) Where a mentally incompetent person is a party, his or her guardian ad litem and his or her committee may be examined for discovery, but the mentally incompetent person may not be examined without leave of the court.

Examination of bankrupt

(12) Where a trustee in bankruptcy is a party, the bankrupt may be examined for discovery.

Time

(13) An examination for discovery by a plaintiff may take place after the expiration of time for delivery of the statement of defence of the party to be examined, and an examination by a defendant may take place at any time after the defendant has delivered a statement of defence.

Place

(14) Unless the court otherwise orders, or the parties to the examination consent, an examination for discovery shall take place at the registry nearest to the place where the person to be examined resides.

Examination before reporter

(15) An examination for discovery shall be conducted before an official reporter, who is empowered to administer the oath.

Appointment for

(16) Where a party is entitled to examine a person for discovery, the party may obtain an appointment from an official reporter, and the person to be examined, on being served personally with a notice in Form 20 and being tendered the proper witness fees at least 2 days before the examination, shall attend and submit to examination.

Delivery of notice

(17) The party examining for discovery shall deliver a copy of the notice to the solicitor for the person to be examined, where that party has a solicitor in the action, and to each of the other parties of record or their solicitors, at least 2 days before the examination.

Delivery of notice to solicitor

(18) Instead of service of the notice on the person to be examined, delivery of it and tender of the proper fees to the solicitor for the person to be examined shall be sufficient if made 7 days before the date appointed for the examination.

Idem

(19) Where a solicitor receives a notice under this rule, the solicitor shall forthwith inform the person required to attend and shall pay the fees to that person. The fees shall not be attached.

Production of documents

(20) A person to be examined for discovery, and the party on whose behalf the person is to be examined, shall produce for inspection on the examination all documents in his or her possession or power, not privileged, relating to the matters in question in the action.

Examination and re-examination

(21) The examination of a person for discovery shall be in the nature of a cross-examination, and the person examined may be re-examined on his or her own behalf or on behalf of a party not adverse in interest to him or her in relation to any matter respecting which he or she has been examined. After the re-examination he or she may be further examined by the examining party,

Scope of examination

(22) Unless the court otherwise orders, a person being examined for discovery shall answer any question within his or her knowledge or means of knowledge regarding any matter, not privileged, relating to a matter in question in the action, and is compellable to give the names and addresses of all persons who reasonably might be expected to have knowledge relating to any matter in question in the action.

Idem

(23) In order to comply with subrule (22), a person being examined for discovery may be required to inform himself or herself and the examination may be adjourned for that purpose.

Objections

(24) Where a person under examination objects to answer a question put to him or her, 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 person to submit to further examination.

How recorded

(25) An examination for discovery shall be taken down in the form of question and answer, and copies of the transcript may be obtained on payment of the proper fee by any party of record, the person examined or by any other person as the court for special reason may permit.

Application to persons outside British Columbia

(26) So far as is practical, this rule applies to a person residing outside of British Columbia, and the court, on application on notice to the person, may order the examination for discovery of the person at a place and in the manner it thinks just and convenient, but unless the court otherwise orders, delivery of the order and the notice may be made on, and payment of the proper fee may be made to, the solicitor for the person.

Order for

(1) Where a person, not a party to an action, may have material evidence relating to a matter in question in the action, the court may order that the person be examined on oath on the matters in question in the action and may, either before or after the examination, order that the examining party pay reasonable solicitor's costs of the person relating to the application and the examination.

Expert

(2) An expert retained or specially employed by another party in anticipation of litigation or preparation for trial may not be examined under this rule unless the party seeking the examination is unable to obtain facts and opinions on the same subject by other means.

Affidavit in support of application

(3) An application for an order under subrule (1) shall be supported by affidavit setting out

(a) the matter in question in the action to which the applicant believes that the evidence of the proposed witness may be material,

(b) where the proposed witness is an expert retained or specially employed by another party in anticipation of litigation or preparation for trial, that the applicant is unable to obtain facts and opinions on the same subject by other means, and

(c) that the proposed witness has refused or neglected upon request by the applicant to give a responsive statement, either orally or in writing, relating to the witness' knowledge of the matters in question, or that the witness has given conflicting statements.

Notice of application

(4) The applicant shall serve notice on the proposed witness at least 7 days before the hearing of the application.

Subpoena

(5) Where a party is entitled to examine a person under this rule, by serving on that person a subpoena in Form 21, the party may require the person 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 party contemplates tendering at the trial as an exhibit, but the subpoena must identify the object.

Notice of examination

(6) The examining party shall give notice of examination of a person under this rule by delivering copies of the subpoena to all parties of record not less than 7 days before the day appointed for the examination.

Mode of examination

(7) The proposed witness shall be cross-examined by the party who obtained the order, then may be cross-examined by any other party, and then may be further cross-examined by the party who obtained the order.

Application of examination for discovery rules

(8) Rule 27 (15), (20) and (22) to (26) apply to an examination under this rule.

Service of and answer to interrogatories

(1) A party to an action may serve on any other party, or on a director, officer, partner, agent, employee or external auditor of a party, interrogatories in Form 22 relating to a matter in question in the action, and the person to whom the interrogatories are directed shall, within 21 days, deliver an answer on affidavit to the interrogatories. The party serving the interrogatories shall notify all other parties of record.

Where a party is a body of persons

(2) Where a party to an action is a body of persons, corporate or unincorporate, empowered to sue or to be sued, in its own name or in the name of an officer or other person, the court may, on the application of any other party, make an order allowing that other party to serve interrogatories on the officer or member of the body specified in the order.

Time for service

(3) The plaintiff may serve interrogatories after the expiration of time for delivery of the statement of defence of the party to be examined, and the defendant may serve interrogatories after the defendant has delivered a statement of defence.

Where more than one person to answer interrogatories

(4) Where interrogatories are required to be answered by more than one person who is an officer, director, partner, agent or employee of a party, the interrogatories shall state which of the interrogatories each person is required to answer.

Objection to answer interrogatory

(5) Where a person objects to answering an interrogatory on the ground of privilege or on the ground that it does not relate to a matter in question in the action, the person may make the objection in an affidavit in answer.

Insufficient answer to interrogatory

(6) Where a person to whom interrogatories have been directed answers any of them insufficiently, the court may require the person to make a further answer either by affidavit or on oral examination.

Application to strike out interrogatory

(7) Where a party objects to an interrogatory on the grounds that it is not necessary for disposing fairly of the action or that the costs of answering would be unreasonable, that party may apply to the court to strike out the interrogatory, and the court shall take into account any offer by him to make admissions, to produce documents or to give oral discovery.

Delivery of interrogatories to solicitor

(8) A party may, instead of serving interrogatories under subrule (1) or (2), deliver the interrogatories to the solicitor of the person to whom the interrogatories are directed.

Idem

(9) Where a solicitor receives interrogatories under subrule (8), the solicitor shall forthwith inform the person to whom the interrogatories are directed.

Continuing obligation to answer

(10) Where a person who has given an answer to an interrogatory later learns that the answer is inaccurate or incomplete, the person is under a continuing obligation to deliver to the party who served the interrogatory on affidavit deposing to an accurate or complete answer.

Order for medical examination

(1) Where the physical or mental condition of a person is in issue in a proceeding, the court may order that the person submit to examination by a medical practitioner or other qualified person, and if the court makes an order, it may make

(a) an order respecting any expenses connected with the examination, and

(b) an order that the result of the examination be put in writing and that copies be made available to interested parties.

Subsequent examinations

(2) The court may order a further examination under this rule.

Questions by examiner

(3) A person who is making an examination under this rule may ask any relevant question concerning the medical condition or history of the person being examined.

Order for inspection and preservation of property

(4) Where the court considers it necessary or expedient for the purpose of obtaining full information or evidence, it may order the production, inspection and preservation of any property and authorize samples to be taken or observations to be made or experiments to be conducted on or with the property.

Entry upon land or buildings

(5) For the purpose of enabling an order under this rule to be carried out, the court may authorize a person to enter upon any land or building.

Application to persons outside British CoIumbia

(6) Rule 27 (26) applies to examinations and inspections ordered under this rule.

Notice to admit

(1) By delivery of a notice to admit in Form 23, a party may request any other party to admit, for the purposes of a proceeding only, the truth of a fact or the authenticity of a document specified in the notice.

Effect of notice to admit

(2) Unless the court otherwise orders, the truth of a fact or the authenticity of a document specified in the notice to admit shall be deemed to be admitted, for the purposes of the proceeding only, unless, within 14 days, the party receiving the notice delivers to the party giving the notice a written statement that

(a) specifically denies the truth of that fact or the authenticity of that document,

(b) sets forth in detail the reasons why the party cannot make the admission, or

(c) states that the refusal to admit the truth of that fact or the authenticity of that document is made on the grounds of privilege or irrelevancy or that the request is otherwise improper, and sets forth in detail the reasons for the refusal.

Copy of document to be attached

(3) Unless the court otherwise orders, a copy of a document specified in a notice to admit shall be attached to the notice when it is delivered.

Unreasonable refusal to admit

(4) Where a party unreasonably denies or refuses to admit the truth of a fact or the authenticity of a document, the court may order the party to pay the costs of proving the truth of the fact or the authenticity of the document and may award as a penalty additional costs, or deprive a party of costs, as the court thinks just.

Withdrawal of admission

(5) A party is not entitled to withdraw

(a) an admission made in response to a notice to admit,

(b) a deemed admission under subrule (2), or

(c) an admission made in a pleading

except by consent or with leave of the court.

Application for order on admissions

(6) An application for judgment or any other application may be made to the court using as evidence

(a) admissions of the truth of a fact or the authenticity of a document made

(i) if in an affidavit or pleading filed by a party,

(ii) in an examination for discovery of a party or a person examined for discovery on behalf of a party,

(iii) in response to a notice to admit, or

(b) admissions of the truth of a fact or the authenticity of a document deemed to be made under subrule (2)

and the court may, without waiting for the determination of any other question between the parties, make any order it thinks just.

Notice of agreed statement of facts

(7) Each party shall, not less than 45 days before the day fixed for the trial to begin, deliver to each of the other parties adverse in interest, a notice in Form 21 requesting those other parties to admit those facts, set out in the notice, that the party delivering the notice considers are not in dispute.

Application to court

(8) Where a party

(a) fails to deliver a notice under subrule (7), or

(b) unreasonably refuses to admit the truth of a fact contained in a notice to admit delivered under that subrule,

the court may, on application, award additional costs against that party or deprive that party of costs, as the court thinks just.

Commencement — subrules (7) and (8)

(9) In respect of proceedings commenced before September 1, 1990, subrules (7) and (8) apply only to proceedings where notice of trial had been issued before that date.

Direction for inquiries, assessments or accounts

(1) At any stage of a proceeding the court may direct an inquiry, assessment or accounting to be held by a master, registrar or special referee.

Certificate as to result

(2) The court may direct that the result of an inquiry, assessment or accounting held by a master, registrar or special referee be certified by that person, and the certificate, when filed, shall be binding on the parties to the proceeding.

Report and recommendation

(3) Where the court does not direct that the result of an inquiry, assessment or accounting be certified, then the result of the inquiry, assessment or accounting shall be stated in the form of a report and recommendation to the court.

Application to vary or confirm recommendation

(4) On application by a party, the court may vary or confirm the recommendation or remit the matter.

Time and place of hearing

(5) A master, registrar or special referee may hold a hearing at a convenient time and place, may adjourn it from time to time, may administer oaths, take evidence, direct production of documents and give general directions for the conduct of the hearing.

Appointment

(6) A party proceeding with an inquiry, assessment or accounting shall take out an appointment in Form 24 and shall serve notice of it upon all parties of record or as directed by the court.

Witnesses

(7) A party to a proceeding in which an inquiry, assessment or accounting is held may subpoena any person, including a party, to give evidence at the hearing and to produce documents.

Certificate or recommendation to be filed and served

(8) A master, registrar or special referee shall state the result of an inquiry, assessment or accounting in the form of a certificate or report and recommendation as directed, with or without reasons, and shall provide the party who took out the appointment with the certificate or report and recommendation and the party shall file it and deliver a copy to all persons served with notice under subrule (6).

Opinion of the court

(9) Before the master, registrar or special referee has concluded a hearing he or she may, in a summary or other manner, ask the opinion of the court on any matter arising in the hearing.

Accounts of executor, trustee, etc.

(10) A person may apply by petition for the furnishing of accounts by the executor or administrator of an estate, a trustee, a receiver, a liquidator, guardian or partner.

Special directions

(11) The court may give special directions as to the manner in which an inquiry, assessment or accounting is to be taken or made, and the directions may include

(a) the manner in which the inquiry, assessment or accounting is to be prosecuted,

(b) the evidence to be adduced in support,

(c) the parties required to attend all or any part of the proceedings,

(d) the time within which each proceeding is to be taken, and

(e) a direction that persons whose interest can be classified shall constitute a class and be represented by the same solicitor and, where the persons cannot agree on the solicitor to represent them, the court may appoint the solicitor to represent them,

and the court may fix a time for the further attendance of the parties.

Varying directions

(12) The court may vary or rescind a direction given under subrule (11).

Form of account

(13) Where an account is directed to be taken, unless the court otherwise orders, the accounting party shall make out that party's account and verify it by an affidavit to which the account shall be exhibited. The items on each side of the account shall be numbered consecutively, and the accounting party shall file the affidavit and the account and deliver copies to all parties of record.

Particulars of errors in account

(14) A party who alleges that there are errors or omissions in an account shall file and deliver to all parties of record a notice thereof with brief particulars.

Recommendation on accounting

(15) Where an accounting is directed, the certificate or report and recommendation shall state the result of the accounting and must specify which of the items have been disallowed or varied and what additions or deletions have been made by way of surcharge or otherwise.

Notice of order

(16) Where in a proceeding relating to

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

(ii) the execution of a trust, or

(iii) the sale of any property,

the court makes an order which directs any inquiry, assessment or accounting to be taken or made, the court may direct notice of the order in Form 25 to be served on any person interested in the estate or under the trust or in the property, and any person served with notice of an order in accordance with this rule shall, subject to subrule (18), be bound by the order to the same extent as the person would have been if the person had originally been made a party to the action.

Dispensing with service

(17) The court may dispense with service on a person in any case where it appears it is impractical for any reason to serve the person and may also order that person shall be bound by any order made to the same extent as if the person had been served with notice of the order, and the person shall be bound accordingly except where the order was obtained by fraud or non-disclosure of material facts.

Person may apply to vary or rescind

(18) A person served with notice, within 28 days after service of the notice on him, without entering an appearance, may apply to the court to vary or rescind the order.

Person may enter appearance

(19) A person served with notice may, after entering an appearance in Form 7, take part in the proceeding.

Statement of special case

(1) The parties to a proceeding may concur in stating a question of law or fact, or partly of law and partly of fact, in the form of a special case for the opinion of the court.

Court may order special case

(2) The court may order a question or issue arising in a proceeding, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be stated in the form of a special case.

Form of special case

(3) A special case must

(a) be divided into paragraphs numbered consecutively,

(b) state concisely such facts and set out or refer to such documents as may be necessary to enable the court to decide the questions stated, and

(c) be signed by the parties or their solicitors.

Hearing of special case

(4) On the hearing of a special case, the court and the parties may refer to any document mentioned in the special case, and the court may draw from the stated facts and documents any inference, whether of fact or law, that might have been drawn from them if proved at a trial or hearing.

Order after hearing of special case

(5) With the consent of the parties, on any question in a special case being answered, the court may grant specific relief or order judgment to be entered.

Point of law may be set down for hearing

(1) A point of law arising from the pleadings may, by consent of the parties or by order of the court, be set down by praecipe for hearing and disposed of at any time before the trial.

Court may dispose of whole action

(2) Where, in the opinion of the court, the decision on the point of law substantially disposes of the whole action or of any distinct claim, ground of defence, set-off, counterclaim or reply, the court may dismiss the action or make any order it thinks just.

Request for pre-trial conference

(1) A party, having delivered or received a notice of trial, may request the holding of a pre-trial conference at a time and place to be fixed by the registrar.

Order for pre-trial conference

(2) On a request being received or on his or her own initiative at any stage of an action, a judge or master may direct that a pre-trial conference, mini-trial or settlement conference be held.

Agenda of pre-trial conference

(3) A pre-trial conference shall be attended by the solicitors for the parties, or the parties themselves, and shall consider

(a) the simplification of the issues,

(b) the necessity or desirability of amendments to pleadings,

(c) the possibility of obtaining admissions which might facilitate the trial,

(d) the quantum of damages,

(e) fixing a date for the trial, and

(f) any other matters that may aid in the disposition of the action or the attainment of justice.

Order following pre-trial conference

(4) At a pre-trial conference, the judge or master may, whether or not on the application of a party, order that

(a) the trial, or part of it, be heard by the court without a jury, on any of the grounds set out in Rule 39 (27),

(b) the pleadings be amended or closed within a fixed time,

(c) a party file and deliver, within a fixed time, to each other party as specified by the judge, a list of documents or an affidavit verifying a list of documents in accordance with the directions that the judge or master may give,

(d) interlocutory applications be brought within a fixed time or by a specified date,

(e) a statement of agreed facts be filed within a fixed time or by a specified date,

(f) a general application for directions be brought within a fixed time or by a specified date,

(g) all procedures for discovery be conducted in accordance with a schedule and plan that the court directs, and the plan may set limitations on those discovery procedures,

(h) the obligation to pay conduct money to any of the parties or persons to be examined be allocated in the manner specified in the order,

(i) a party deliver a written summary of the proposed evidence of a witness within a fixed time or by a specified date,

(j) the parties attend a mini-trial or a settlement conference,

(k) experts who have been retained by the parties confer, on a without prejudice basis, to determine those matters on which they agree and to identify those matters on which they do not agree, and

(1) the action be set for trial on a particular date or on a particular trial list, subject to the approval of the Chief Justice,

and, on making an order under this subrule, the judge or master may give other directions that he or she thinks just or necessary.

Idem

(5) Where the judge or master orders or directs that the parties attend a mini-trial, the parties shall attend before a judge or master who shall, in camera and without hearing witnesses, give a non-binding opinion on the probable outcome of a trial of the proceeding.

Idem

(6) Where the judge or master orders or directs that the parties attend a settlement conference, the parties shall attend before a judge or master who shall, in camera and without hearing witnesses, explore all possibilities of settlement of the issues that are outstanding.

Pre-trial judge may preside

(7) A judge who presides at a pre-trial conference is not seized of the action, and a trial of the action may be heard by that judge or by any other judge.

When judge shall not preside

(8) A judge who has heard a mini-trial or who has attended at a settlement conference shall not preside at the trial, unless all parties of record consent.

Discontinuance by plaintiff

(1) At any time before an action is set down for trial, a plaintiff may discontinue it in whole or in part against a defendant by filing and delivering a notice of discontinuance in Form 26 to each party of record.

Idem

(2) After an action has been set down for trial, a plaintiff may discontinue it in whole or in part against a defendant with the consent of all parties of record or by leave of the court.

Withdrawal by defendant

(3) A defendant may withdraw his or her defence or any part of it with respect to any plaintiff at any time by filing a notice of withdrawal in Form 27 and delivering a copy of it to each party of record.

Costs and default procedure on discontinuance or withdrawal

(4) Subject to subrule (2), a person wholly discontinuing an action or wholly withdrawing his defence against a party shall pay the costs of that party to the date of delivery of the notice of discontinuance or withdrawal and if a plaintiff, liable for costs under this rule, subsequently brings a proceeding for the same or substantially the same claim before paying those costs, the court may order the proceeding to be stayed until the costs are paid.

Idem

(5) Where a plaintiff discontinues the whole or any part of an action in which a person has been joined as a third party, the third party, if the discontinuance disposes of the claim against the third party, is entitled to costs and may apply to the court for a direction as to who should pay them.

Idem

(6) A plaintiff's right to recover costs from a defendant under subrule (4) does not preclude the plaints from recovering other costs properly incurred.

Idem

(7) Where a defendant wholly or partly withdraws his defence under this rule, the plaintiff may proceed under Rule 25 as though the defendant had delivered no statement of defence or only a partial statement of defence.

Discontinuance not a defence

(8) Unless otherwise ordered, the discontinuance of an action in whole or in part is not a defence to a subsequent proceeding for the same or substantially the same cause of action.

Application to counterclaim, etc.

(9) This rule applies to a counterclaim, a third party proceeding and a petition.

Payment into court by defendant

(1) At any time before the commencement of the trial, a defendant may pay into court a sum of money in satisfaction of the whole or part of a claim for which the plaintiff sues.

Allocation of money in court

(2) Where money belonging to a defendant is paid into court pursuant to a garnishing order or other order of the court, the defendant may allocate all or part of it as a payment into court under this rule.

Money to remain in court

(3) Money paid into court shall remain in court subject to further order unless the plaintiff elects to accept it under this rule.

Payment into court by third party

(4) At any time before the commencement of the trial a third party may pay into court a sum of money in satisfaction of the whole or part of the defendant's claim against that third party.

Payment into court not an admission

(5) Payment of money into court shall not be deemed an admission of liability.

Where tender before action pleaded

(6) Where a tender before action is pleaded, the sum alleged to have been tendered shall be paid forthwith into court.

Notice of payment in

(7) When a party pays moneys into court the party shall file a notice of payment in Form 28 and shall forthwith deliver a copy to each party of record, and, unless otherwise ordered by the court, the notice must specify the party for whom and the claim in respect of which payment in is made, and may specify the sum paid in respect of each claim.

Acceptance of money paid in

(8) Subject to subrules (9) and (10), where money is paid into court under this rule, except under subrule (6), a party, at any time before the commencement of the trial, may accept and take out of court the whole sum or any one or more of the specified sums paid in, in satisfaction of that party's claim or claims, by filing and delivering to each party of record a notice in Form 29.

Acceptance of money paid in by third party

(9) Money paid into court by a third party shall not be taken out of court by a defendant without leave of the court.

Acceptance by party not personally entitled

(10) If a party is not personally entitled to the money, the money may only be accepted and paid out by leave of the court.

Costs on acceptance

(11) If the defendant does not allege tender before action and the plaintiff takes the money in satisfaction of all the plaintiff's claims, the plaintiff may assess costs reasonably incurred up to 7 days after delivery to the plaintiff of a copy of the notice under subrule (7), and the defendant may assess costs reasonably incurred after the expiry of 7 days after delivery to the plaintiff of the notice.

Where successful defence of tender

(12) Unless the court otherwise orders, where the defendant alleges tender before action and at the trial succeeds on that defence, the defendant may assess costs and the amount allowed the defendant shall be paid out of the money in court and the balance shall be paid to the plaintiff.

Plaintiff's election where tender alleged

(13) Unless the court otherwise orders, where the defendant alleges tender before action and the plaintiff elects to take the money in satisfaction, the defendant may assess costs and the amount allowed the defendant shall be paid out of the money in court and the balance shall be paid to the plaintiff.

Payment in by joint or alternative defendants

(14) Subject to subrule (15), no party sued jointly with another party may pay money into court except jointly with that other party.

Joint defendants in libel or slander action

(15) In an action for libel or slander against several defendants sued jointly, a defendant may pay money into court and the plaintiff, at any time before the commencement of the trial, may elect to accept the sum paid into court in satisfaction of the plaintiff's claim against that defendant by filing and delivering to each party of record a notice in Form 28.

Acceptance as a stay

(16) Where money has been accepted under this rule, all further proceedings in the action or in respect of the specified claim, or part of the claim, except for recovery of costs, are stayed.

Plaintiff proceeding after payment in

(17) Where the plaintiff proceeds with an action and recovers an amount equal to or less than the amount paid into court,

(a) the plaintiff may assess costs reasonably incurred up to delivery to the plaintiff of a copy of the notice under subrule (7) and, provided the notice was delivered at least 7 days before the commencement of the trial, the defendant may assess costs reasonably incurred after delivery of the notice to the plaintiff,

but if the notice was delivered less than 7 days before the commencement of the trial, the costs of any steps taken by the parties subsequent to delivery shall be in the discretion of the court, and

(b) the amount paid in shall be applied in satisfaction of the plaintiff's judgment after set-off of the defendant's costs, if any, and any balance shall be repaid to the defendant.

Idem

(18) Where the plaintiff proceeds with an action and judgment is given for the defendant in respect of the claim, the whole amount paid in by the defendant shall be repaid to the defendant.

Defendant proceeding after payment in

(19) Where the defendant proceeds with his third party proceeding and recovers an amount equal to or less than the amount paid into court,

(a) the defendant may assess costs reasonably incurred up to delivery to the defendant of notice under subrule (7), and provided the notice was delivered at least 7 days before the commencement of the trial, the third party may assess costs reasonably incurred after the delivery of the notice to the defendant, but if the notice was delivered less than 7 days before the commencement of the trial, the costs of any steps taken by the parties subsequent to that delivery shall be in the discretion of the court, and

(b) the amount paid in shall be applied in satisfaction of the defendant's judgment after set-off of the third party's costs, if any, and any balance shall be repaid to the third party.

Idem

(20) Where the defendant proceeds with his third party proceeding and judgment is given for the third party in respect of the claim, the whole amount paid in by the third party shall be repaid to the third party.

Payment in not to be communicated to the court

(21) Except in an action to which a defence of tender before action is pleaded, no statement of the fact that money has been paid into court shall be inserted in the pleadings and no communication of that fact shall be made to the court or a jury until all questions of liability and amount of the debt or damages have been decided.

Surrender of counterclaim as payment in

(22) Where a counterclaim is made, a defendant may offer to surrender his counterclaim, or may pay into court a sum of money and offer to surrender the counterclaim, in satisfaction of one or more of the plaintiff's claims in settlement of the action and counterclaim.

Stay on acceptance

(23) Where a counterclaim is accepted in satisfaction or part satisfaction, the counterclaim is stayed.

Application of rules to counterclaim

(24) Subrules (1) to (21) apply to the offer to surrender a counterclaim as though it were payment of money into court.

In libel or slander actions

(25) A plaintiff in an action for libel or slander who takes money out of court may apply to the court for leave to make in open court a statement in terms approved by the court.

Payment to solicitor

(26) Where provision is made in this rule for payment out to a party, the money may, with the party's written authorization, be paid to the party's solicitor.

Special circumstances

(27) In special circumstances the court may order that payment out of moneys in court be made to the solicitor for a party entitled to the moneys, rather than to the party.

Payment in for infant

(28) Where money is paid into court to the credit of an infant, a copy of the birth certificate of the infant, or other proof to the satisfaction of the registrar of the name and date of birth of the infant, shall be filed, unless the registrar dispenses with the filing.

Payment out of money held for infant

(29) In support of an application for payment out of money paid in under subrule (28), the applicant shall file a declaration in Form 30.

Interest under the Court Order Interest Act

(30) In this rule, a sum of money paid into court in satisfaction of the whole or part of a claim includes interest under the Court Order Interest Act, where applicable, to the date of payment in, but does not include costs.

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.

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.

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.

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.

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.

Examination of debtor

(1) Where a judgment creditor is entitled to issue execution upon or otherwise enforce an order of the court, the creditor may examine the judgment debtor for discovery as to

(a) any matter pertinent to the enforcement of the order,

(b) the reason for nonpayment or nonperformance of the order,

(c) the income and property of the debtor,

(d) the debts owed to and by the debtor,

(e) the disposal the debtor has made of any property either before or after the making of the order,

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

(g) whether the debtor intends to obey the order or has any reason for not doing so.

Examination of corporate, partnership or firm debtor

(2) An officer or director of a corporate judgment debtor, or a person liable to execution upon the order in the case of a partnership or firm judgment debtor, may, without an order, be examined for discovery upon the matters set out in subrule (1).

Limitation

(3) Unless the court otherwise orders, a person examined under subrule (1) or (2) shall not be further examined in the same proceeding for a year.

Examination of person other than debtor

(4) Upon being satisfied that any other person may have knowledge of the matters set out in subrule (1) the court may order the person to be examined for discovery concerning the person's knowledge.

Order in certain cases

(5) Where a difficulty arises in or about the execution or enforcement of an order the court may make any order for the attendance and examination of a party or person it thinks just.

Application of examination for discovery rules

(6) The provisions of Rule 27 (2), (61, (141, (151, (16), (20),(211, (221, (23), (24), (25) and (26) apply to an examination under this rule.

Use of examination

(7) Any part of an examination for discovery under this rule may be given in evidence in the same or any subsequent proceeding between the parties to the proceeding or between the judgment creditor and the person examined for discovery.

Costs

(8) Unless the court otherwise orders, the party conducting an examination under this rule is entitled to recover the costs of the examination from the debtor.

Interpretation

(9) In this rule a "judgment creditor" means a person entitled to enforce an order of the court, whether for payment of money or otherwise, and "judgment debtor" or "debtor" means a person against whom the order may be enforced.

Court may order sale

(1) Where in a proceeding it appears necessary or expedient that property be sold, the court may order the sale and may order a person in possession of the property or in receipt of the rents, profits or income from it to join in the sale and transfer of the property and deliver up the possession or receipt to the purchaser or person designated by the court.

Sale in debenture holder's proceeding

(2) In a debenture holder's proceeding where the debenture holder is entitled to a charge on any property, the court, if it is of the opinion that eventually there must be a sale of the property, may order the sale before or after judgment, whether or not all interested persons are ascertained or served.

Conduct of sale

(3) Where an order is made directing property to be sold, the court may permit any person having the conduct of the sale to sell the property in the manner as the person thinks just or as the court directs.

Directions for sale

(4) The court may give directions it thinks just for the purpose of effecting a sale, including directions

(a) appointing the person who is to have conduct of the sale,

(b) fixing the manner of sale, whether by contract conditional on the approval of the court, private negotiation, public auction, sheriff's sale, tender or some other manner,

(c) fixing a reserve or minimum price,

(d) defining the rights of a person to bid, make offers or meet bids,

(e) requiring payment of the purchase price into court or to trustees or to other persons,

(f) settling the particulars or conditions of sale,

(g) obtaining evidence of the value of the property,

(h) fixing the remuneration to be paid to the person having conduct of the sale and any commission, costs or the expenses resulting from the sale,

(i) that any conveyance or other document necessary to complete the sale be executed on behalf of any person by a person designated by the court, and

(j) authorizing a person to enter upon any land or building.

Application for directions

(5) A person having conduct of a sale may apply to the court for further directions.

Certificate of sale

(6) The result of a sale by order of the court shall be certified by the person having the conduct of the sale in Form 54, verified by affidavit, and filed forthwith after completion of the sale.

Vesting order

(7) The person having conduct of the sale may apply to the court for a vesting order in favour of a purchaser.

When interlocutory application to be brought

(1) Where an application in a proceeding is authorized to be made to the court, it shall be made by interlocutory application.

More than one matter may be included in an application

(2) A party may include in an application more than one matter upon which the party desires the order of the court.

Form of application

(3) An interlocutory application shall be brought by filing a notice of motion in Form 55, which shall specify any rule or other enactment relied upon.

Application to be supported by affidavit

(4) An application shall be supported by affidavit as to all the facts on which it is based that do not appear from the record, but an affidavit previously made and read in the same proceeding also may be used.

Application to list affidavits

(5) A notice of motion shall contain a statement of the affidavits to be used in support, and the affidavits not already served shall be filed and delivered with the notice.

Time notice of motion returnable

(6) Unless the court otherwise directs, a notice of motion is returnable at 10 a.m. before the court in chambers on any day fixed for that purpose.

Delivery of notice of motion

(7) A copy of the notice of motion shall be delivered to all parties of record whose interests may be affected by the order sought.

Ex parte order

(8) If satisfied that no notice is necessary or in case of urgency, the court may make an order ex parte and, on the application of a person affected by the order, may set it aside or vary it as it thinks just.

Delivery of ex parte orders

(9) A party obtaining an ex parte order shall deliver the order together with the affidavits upon which it was granted to all parties of record and serve them on any other persons as the court may direct.

Length of notice

(10) Unless otherwise ordered, there shall be at least 2 days between the service or delivery of a notice of motion and the day named in the notice for the hearing.

Delivery of notice with writ, etc.

(11) A party may serve a notice of motion with the originating process or at any time afterwards but, unless the court otherwise orders, the day named in the notice for hearing the application shall not be earlier than the last day fixed for entry of appearance.

Party may file affidavits

(12) A party of record who may be affected by an order sought in an application may file affidavits and shall forthwith deliver copies of them to all other parties of record.

Interlocutory application by consent

(13) An interlocutory application by consent, or of which notice is not required, may be made by filing

(a) a praecipe specifying the rule or other enactment relied on,

(b) a draft of the order requested, and

(c) evidence that the application is consented to or material on which it is based,

and, on being satisfied that the application is appropriate for proceeding under this rule, the court may make the order without the application being spoken to.

Place of hearing of motion

(14) Subject to the agreement of all parties of record and to subrule (16), all motions shall be heard at a place at which the court normally sits in the judicial district in which the proceeding was commenced, and the applicant shall state the name of that place on the notice of motion.

Where more than one place

(15) Where there is more than one place within the judicial district referred to in subrule (14) at which the court normally sits, the applicant may name, as the place for hearing, any of those places, but where the applicant names a place other than the place at which the proceeding was commenced, the court may, where the court considers that it was unreasonable to have made the motion returnable at that other place,

(a) order that the application be heard at some other place,

(b) dismiss the application, or

(c) hear the application

and may, in any event, make a special order as to costs.

Place of hearing of motion by leave of registrar

(16) Where any registrar is satisfied that, due to urgency or the convenience of the parties, an application should be heard at a place outside of the judicial district in which the proceeding was commenced, the registrar may, ex parte, grant leave for the applicant to do either or both of the following:

(a) file the notice of motion in some other judicial district;

(b) name as the place of hearing a place in that other judicial district;

and where the registrar grants leave, he or she shall endorse the notice of motion accordingly.

Idem

(17) Where, in respect of an application for which leave was granted under subrule (16) (b), the court at the hearing of the application considers that the application should not be heard at that place, the court may

(a) order that the application be heard at some other place,

(b) dismiss the application, or

(c) hear the application

and may, in any event, make a special order as to costs.

Transfer of file

(18) Where a procedure authorized by subrule (15) or (16) is followed, and where practical, the original registry shall transfer the file to the registry where the hearing is to take place, and after the hearing the file shall be returned to the original registry.

Idem

(19) Where the transfer is not practical, the registry at the place where the hearing takes place, after the hearing, shall forward all material filed in that registry and any order made to the original registry.

Applications for injunctions

(1) An application for an interlocutory injunction may be made by a party whether or not a claim for an injunction was included in the relief claimed. The application shall be made upon notice to all other parties.

Ex parte applications for injunctions

(2) Notwithstanding subrule (1), in case of urgency an application for an injunction may be made ex parte and the court may grant an interim injunction.

Application for before proceeding commenced

(3) In case of urgency and with leave of the court, application for an injunction may be made before commencement of a proceeding and the injunction may be granted on terms providing for the commencement of proceedings.

Injunction by court order

(4) No writ of injunction shall be issued. An injunction shall be by order of the court.

Court may vary injunction

(5) Upon application, which may be made ex parte in case of urgency, the court may rescind, suspend or vary an order for an injunction.

Undertaking as to damages

(6) Unless the court otherwise orders, an order for an interlocutory or interim injunction shall contain the applicant's undertaking to abide by any order which the court may make as to damages.

Application for injunction after judgment

(7) In a proceeding in which an injunction has been or might have been claimed, a party may apply by petition after judgment to restrain another party from the repetition or continuance of the wrongful act or breach of contract established by the judgment or from the commission of any act or breach of a like kind.

Property which is the subject matter of a proceeding

(1) The court may make an order for the detention, custody or preservation of any property that is the subject matter of a proceeding or as to which a question may arise and, for the purpose of enabling an order under this rule to be carried out, the court may authorize a person to enter upon any land or building.

Fund which is the subject matter of a proceeding

(2) Where the right of a party to a specific fund is in dispute in a proceeding, the court may order the fund to be paid into court or otherwise secured.

Allowance of income from property

(3) Where property is the subject matter of a proceeding and the court is satisfied that it will be more than sufficient to answer all claims on it, the court at any time may allow the whole or part of the income of the property to be paid, during such period as it may direct, to a party who has an interest in it or may direct that part of the personal property be delivered or transferred to a party.

Recovery of specific property

(4) Where a party claims the recovery of specific property other than land, the court may order that the property claimed be given up to the claimant, pending the outcome of the proceeding, either unconditionally or upon terms relating to giving security, time, mode of trial or otherwise as it thinks just.

Compensation for wrongful recovery

(5) Unless the court otherwise orders, if an order is made under subrule (4) the order shall contain the claimant's undertaking to abide by any order which the court may make as to damages arising out of delivery of the property to the claimant or compliance with any other order.

Appointment of

(1) The court may appoint a receiver in any proceeding either unconditionally or on terms, whether or not the appointment of a receiver was included in the relief claimed by the applicant.

Form of security

(2) Unless the court otherwise orders, a receiver shall give security as the court may direct in either Form 57 or Form 58, and until that security is given, the order appointing the receiver shall not be presented for entry.

Remuneration of

(3) The court shall fix any remuneration to be paid to a receiver.

Accounts of

(4) Unless the court otherwise orders, a receiver shall file and deliver his accounts annually.

Entitlement to relief by way of interpleader

(1) Where a person (in this rule called the "applicant") is sued or expects to be sued in respect of property in the person's possession or under the person's control or in respect of the proceeds from a disposition of the property, or receives a claim in respect of the property or proceeds by or from 2 or more persons (in this rule called the "claimants") making adverse claims and the applicant claims no beneficial interest in the property, the applicant may apply to the court for relief by way of interpleader.

Claim to real or personal property taken by sheriff

(2) A person who makes a claim to or in respect of property taken or intended to be taken by a sheriff in the execution of any process, or to the proceeds from a disposition of the property, shall deliver to the sheriff written notice of the person's claim and the person's address for delivery.

Sheriff to deliver notice

(3) On receipt of a notice of claim, a sheriff shall forthwith deliver a copy to the person who caused the process to issue, and that person shall, within 7 days after receiving the copy, deliver to the sheriff a written notice stating whether that person admits or disputes the claim.

Where claim admitted

(4) On receipt of a notice admitting a claim, a sheriff shall release any property the claim to which is admitted, and the court may restrain the bringing of a proceeding against the sheriff for or in respect of his having taken possession of the property and, unless the court otherwise orders, a person who admits a claim is only liable to the sheriff for any costs, fees and expenses incurred by the sheriff before receipt of the notice admitting the claim.

Sheriff may apply for interpleader relief

(5) On receipt of a notice disputing a claim or on the failure of the person who caused the process to issue to give the sheriff the notice within the time required by paragraph (b), the sheriff may apply for interpleader relief.

Mode of application

(6) An application for interpleader relief shall be made by petition, unless it is made in a proceeding already commenced, in which case it may be made by notice of motion.

Affidavit

(7) An application for interpleader relief shall be supported by an affidavit stating the names and addresses of the claimants of whom the applicant has knowledge and that the applicant

(a) claims no beneficial interest in the property in dispute, other than for costs, fees or expenses,

(b) does not collude with any claimant of the property, and

(c) is willing to deliver the property to the court or to dispose of it as the court may direct.

Ex parte application

(8) An application for interpleader relief may be made ex parte, and the court may deal with the matter summarily or may give directions for service.

Powers of court on hearing application

(9) On the hearing of an application for interpleader relief the court may

(a) order a claimant to be made a party in a proceeding already commenced in substitution for or in addition to the applicant,

(b) order an issue between the claimants to be stated and tried and may direct which claimant is to be plaintiff and which defendant,

(c) on the request of the applicant or a claimant, determine the rights of the claimants summarily,

(d) where a claimant fails to appear, or appears and fails or refuses to comply with an order made in the proceeding, make an order declaring the claimant and all persons claiming under the claimant be forever barred from prosecuting the claim against the applicant and all persons claiming under the claimant, without affecting the rights of the claimants as between themselves,

(e) stay any further step in a proceeding,

(f) where there are interpleader applications pending in several proceedings, make an order that shall be binding on all the parties to the various proceedings,

(g) order the costs of the applicant to be paid out of the property or proceeds,

(h) declare that the liability of the applicant with respect to the property or the proceeds is extinguished, and

(i) make any other order it thinks just.

Application

(1) Where by an enactment, an appeal or an application in the nature of an appeal from the decision, direction or order of any person or body is authorized to be made to the court or to a judge, the appeal shall be governed by this rule to the extent that it is not inconsistent with any procedure provided for in the enactment.

Form

(2) An appeal shall be commenced by filing in a registry a notice of appeal in Form 59.

Application for directions

(3) A notice of appeal must

(a) include an application for directions as to the conduct of the appeal, and

(b) specify the date on which the application will be made, which shall be not less than 7 days after service of the notice, unless the court otherwise directs.

Service of notice of appeal

(4) A notice of appeal shall be served upon the person or body which gave the decision or direction or made the order and on all other persons who may be affected by the order sought, unless the court otherwise directs.

Powers of court

(5) The court may give directions it considers necessary for the proper hearing and determination of the appeal and, without limiting the generality of that, may make an order

(a) that documents or transcripts or minutes be produced,

(b) that evidence be adduced by way of affidavit, or that it be given orally,

(c) that the appeal be determined by way of stated case, or argument upon a point of law,

(d) prescribing time limits for taking steps in and for the hearing of the appeal, or

(e) that the appeal be disposed of summarily,

and may exercise the powers of the court as on an originating application.

Commencement

(1) A proceeding for foreclosure of the equitable right to redeem mortgaged property or for redemption shall be commenced by petition.

Service

(2) All persons whose interest in or claim to the mortgaged property is sought to be extinguished and all persons against whom any relief is sought shall be made respondents, and unless the court otherwise orders, it is not necessary to join any other person as a respondent.

Joinder of claim or party

(3) Notwithstanding Rule 8 (1) a petitioner under this rule may join in the proceeding any claim arising out of the mortgage or out of any bond or collateral security or obligation given for the mortgage debt and may join as a party any person who is liable to pay the mortgage debt.

Person filing interest after lis pendens

(4) A person who registers or files in a land title office an interest, right or claim in or to the mortgaged property after the petitioner has registered a lis pendens in respect of the proceeding against the mortgaged property, need not be served with the petition and is bound by an order made in the proceeding, but the person may enter an appearance in the proceeding.

Powers of the court

(5) The court may

(a) make a final order of foreclosure or order that a respondent shall, within a redemption period that the court may fix, or forthwith, pay to the petitioner what is due under the mortgage and for costs, and that, in default of payment, the respondent shall be foreclosed of his equity of redemption,

(b) determine summarily or order that an account be taken of and that the registrar certify, what is due to the petitioner or to any person on the date of hearing of the petition or the accounting and either

(i) the daily amount of interest, or

(ii) if the daily amount of interest may fluctuate, the method for calculating such interest

from the date of the hearing of the petition or the accounting to the expiration of the period of redemption,

(c) determine summarily or order an inquiry to determine any issues raised between respondents, including priorities,

(d) determine summarily or order an inquiry to determine whether a person should be served with the petition,

(e) order at what times, on what terms and in what order of priority respondents may redeem the mortgaged property and that in default they shall be foreclosed of any interest, right or claim in or to the mortgaged property,

(f) grant judgment for any amount found due, or which may be certified to be due on an accounting,

(g) order a sale of the mortgaged property,

(h) grant further or corollary relief, and

(i) make an order under Rule 52 (11).

Final order

(6) In default of payment in accordance with an order made under subrule (5), a final order of foreclosure may be granted against a respondent on application by the petitioner.

Order for sale

(7) A party of record may apply at any time for an order that the mortgaged property be sold or be put up for sale.

Inquiry to settle terms of sale

(8) The court may order an inquiry to settle the terms of a sale.

Order confirming sale

(9) Notwithstanding that the time for redemption has not expired, the person having conduct of a sale may apply to the court for an order confirming the sale, directing the disposition of the proceeds and vesting title in the purchaser.

Notice to assess costs

(10) A respondent desiring to redeem may, upon paying to the petitioner the amount due under the mortgage, give notice to the petitioner to assess costs, and if, within 14 days of delivery of the notice, the petitioner has not filed a bill of costs for assessment, the petitioner shall not be entitled to costs.

Agreement for sale

(11) This rule applies to a proceeding by a vendor on an agreement for sale of land in which a claim is made for specific performance of an agreement for sale and for its cancellation upon failure to perform.

Affidavit to be filed

(1) An affidavit used in a proceeding must be filed.

Form and content of affidavit

(2) An affidavit must

(a) be expressed in the first person and show the name, address and occupation of the deponent,

(b) if the deponent is a party or the solicitor, agent, director, officer or employee of a party, state that fact, and

(c) be divided into paragraphs numbered consecutively.

Signing and swearing affidavit

(3) An affidavit shall be signed by the deponent and its jurat signed by the person before whom it is sworn. A deponent unable to sign an affidavit may place his or her mark on it.

Jurat where deponent unable to read

(4) Where it appears to a person before whom an affidavit is sworn that a deponent is unable to read it, he or she shall certify in the jurat that the affidavit was read in his or her presence to the deponent who seemed to understand it.

Interpretation to deponent who does not understand English

(5) Where it appears to a person before whom an affidavit is to be sworn that the deponent does not understand the English language, the affidavit shall be interpreted to the deponent by a competent interpreter who shall certify by endorsement in Form 60 on the affidavit that he or she has interpreted the affidavit to the deponent.

Exhibit to be marked

(6) An exhibit referred to in an affidavit must be identified by the person before whom it is sworn by signing a certificate placed on the exhibit in the following form:

"This is Exhibit ........................................................... referred to in the affidavit of .............................................................................. sworn before me (date)."

Copies of documentary exhibits

(7) An exhibit referred to in an affidavit need not be filed, but must be made available for the use of the court and for the prior inspection of a party to the proceeding and, in the case of a documentary exhibit not exceeding 5 pages, a copy shall be attached to the affidavit and to all copies served or delivered.

Alterations to be initialled

(8) The person before whom an affidavit is sworn shall initial all alterations in the affidavit, and unless so initialled, the affidavit shall not be used in a proceeding without leave of the court.

Contents of affidavit

(9) An affidavit may state only what a deponent would be permitted to state in evidence at a trial, except that where the source of the information is given, an affidavit may contain statements as to the deponent's information and belief, where it is made

(a) in respect of an application for an interlocutory order, or

(b) by leave of the court under Rule 40 (52) (a) or 52 (8) (e).

Use of defective affidavit

(10) With leave of the court an affidavit may be used in evidence, notwithstanding an irregularity in form.

Affidavit sworn before proceeding commenced

(11) An affidavit may be used in a proceeding notwithstanding that it was sworn before the proceeding was commenced.

Applications to be heard in chambers

(1) All originating applications and, unless made in the course of trial, all interlocutory applications, shall be heard and disposed of by the court in chambers.

Particular applications to be heard in chambers

(2) Without limiting the generality of subrule (1), the following matters shall be heard and disposed of by the court in chambers:

(a) appeals from and applications to confirm, vary or set aside orders, reports, certificates or recommendations of a master, registrar, special referee or other officer of the court;

(b) actions or issues in actions that have been ordered to be proceeded with by affidavit or on documents before the court, and special cases and hearings on a point of law;

(c) applications for judgment under Rules 17,18,18A, 25 and 31;

(d) applications to vary or set aside a judgment;

(e) matters which, being otherwise proceeded with by action, are ordered to be disposed of in chambers.

Definition of "application"

(3) In this rule, "application" includes all proceedings that may be heard and disposed of in chambers.

Failure of party to appear

(4) When a party to an application fails to attend, whether on the return of the application or at the time appointed for the consideration of the matter, the court may proceed ex parte, if, considering the nature of the case, it thinks it expedient so to do, and may require evidence of service it thinks necessary.

Reconsideration of ex parte proceeding

(5) Where the court has proceeded ex parte under subrule (4), the proceeding shall not be reconsidered unless the court is satisfied that the party failing to attend was not guilty of wilful delay or default.

Adjourned hearing of application

(6) If an application is not disposed of on the return date, the parties shall attend from time to time without further notice at such time as may be appointed.

Chambers list

(7) Each application to be spoken to, when set down for hearing, shall be entered in the registry in a list and, so far as is practical, the solicitor setting down the application shall indicate whether it is of a time consuming or contentious nature.

Evidence on an application

(8) On an application, evidence shall be given by affidavit, but the court may

(a) order the attendance for cross-examination of a deponent, either before the court or before another person as the court directs,

(b) order the examination of a party or witness, either before the court or before another person as the court directs,

(c) give directions required for the discovery, inspection or production of a document or copy thereof,

(d) order an inquiry, assessment or accounting under Rule 32, and

(e) permit other forms of evidence to be adduced.

Hearing of application in public

(9) Except in cases of urgency, an application shall be heard in a place open to the public when the application is made, unless the court, in the case of a particular application, directs that for special reasons the application ought to be dealt with in private.

Adjournment of application returnable on a holiday

(10) Where an application has been made returnable on a day on which the court does not hold chambers, the application will stand adjourned without order to the next day on which the court holds chambers.

Power of the court

(11) On an application the court may

(a) grant or refuse the relief claimed in whole or in part, or dispose of any question arising on the application,

(b) adjourn the application from time to time, either to a particular date or generally, and when the application is adjourned generally, a party may set it down on 2 days' notice for further hearing,

(c) obtain the assistance of an expert and act upon the certificate or report of that expert and determine the expert's remuneration and direct payment of it by a party, and

(d) order a trial of the proceeding, either generally or on an issue, and order pleadings to be filed, and may give directions for the conduct of the trial and of pre-trial proceedings, and for the disposition of the application.

Power of court where notice not given

(12) If on the hearing of an application the court is of the opinion that a person to whom notice has not been given ought to have had notice, the court may either dismiss the application or adjourn the hearing.

Adjournment

(13) The hearing of an application may from time to time be adjourned by the registrar.

Notes of proceedings

(14) The registrar or the registrar's clerk shall attend at and keep notes of all proceedings in chambers with a short statement of the questions or points decided or orders made at every hearing.

Powers of a master

(1) A master hearing an application has the powers of the court set out in Rule 52 (4) to (12).

Master as registrar

(2) A master has the powers and jurisdiction of a registrar under these rules.

Powers of a master in estates

(3) A master has the powers of the court to dispose of all non-contentious business in the administration of estates.

Powers of registrar

(4) A registrar dealing with a matter has the power to extend, shorten or limit the time for any proceeding before the registrar and has the powers set out in Rule 32 (5).

Reference by master to court

(5) If a matter appears to the master proper for the decision of the court, the master may refer it to the court, and the court may either dispose of the matter or refer it back to the master with directions.

Appeal from master, registrar or special referee

(6) A person affected by an order or decision of a master, registrar or special referee may appeal the order or the decision to the court.

Idem

(7) The appeal may be by way of summary reference from the master, registrar or special referee at the request of a party or by filing a notice of appeal in Form 61 within 14 days after the order or decision complained of.

Notice

(8) Unless otherwise ordered, there shall be at least 2 days between the service of the notice and the hearing.

Appeal not to act as stay

(9) An appeal from the decision of a master or registrar is not a stay of proceeding unless so ordered by the court or the master.