Withdrawal of Admission
132 A party may withdraw an admission made in response to a request to admit, a deemed admission or an admission in the party’s pleading on consent or with leave of the Court.
Procedure At Hearing
Exclusion of Witnesses
(2) A direction under subsection (1) may not be made in respect of a party to the appeal or a witness whose presence is essential to instruct counsel for the party calling the witness, but the presiding judge may require any such party or witness to give evidence before any other witnesses are called to give evidence on behalf of that party.
(2.1) Where an order is made excluding a witness from the courtroom, there shall be no communication to the witness of any evidence given during the absence of the witness from the courtroom, except with leave of the presiding judge, until after the witness has been called and has given evidence.
(3) Where an appeal is heard in camera under the authority of an enactment, disclosure of information relating to the appeal is not contempt of court unless the Court has expressly prohibited the disclosure of the information.
- SOR/93-96, s. 16;
- SOR/2004-100, s. 21(E).
Return of Exhibits
134 Subject to any direction by the Chief Justice, at any time following the judgment, on requisition by the counsel or party who put an exhibit in evidence, or the person who produced it, the Registrar shall return the exhibit to the person making the requisition.
- SOR/2004-100, s. 22.
Order of Presentation at Hearing
135 (1) If at a hearing a party proposes to adduce evidence, the party or the party’s counsel shall, unless the judge directs otherwise, immediately before adducing the evidence, open his case by making a short statement giving a concise outline of the facts that the party proposes to prove and of the applicable law.
(2) Unless the judge directs otherwise, the parties shall put in their respective cases by evidence or by putting before the Court the facts on which they rely, in the following order,
(3) Unless the judge directs otherwise, after all parties have adduced their evidence, they shall be heard in argument in the order in which they adduced their evidence and the party who was first heard in argument may reply and an opposing party may answer a new point of law raised in the reply.
View by Judge
136 The judge may, in the presence of the parties or their counsel, inspect any place or thing concerning which any question may arise.
Adjournment of Hearing
137 A judge may postpone or adjourn a hearing to such time and place and on such terms as are just.
Reopening of Hearing
(2) The judge may, at any time before judgment, draw the attention of the parties to any failure to prove some fact or document material to a party’s case, or to any defect in the proceeding, and permit a party to remedy the failure or defect for such purposes and upon such terms as are just.
Justifying Absence of Witness
(2) Upon an application for an adjournment under subsection (1) another party may require the party applying, on oath or on the oath of some other person, to state the facts that it is believed the witness would have stated, and the other party may admit those facts, or admit that the witness would have stated those facts and the judge may refuse to adjourn the hearing.
Failure to Appear
(2) The Court may set aside or vary, on such terms as are just, a judgment or order obtained against a party who failed to attend a hearing, a status hearing or a pre-hearing conference on the application of the party if the application is made within thirty days after the pronouncement of the judgment or order.
- SOR/95-113, s. 8.
Compelling Attendance at Hearing
141 (1) A party who requires the attendance of a person as a witness at a hearing may serve the person with a subpoena requiring the person to attend the hearing at the time and place stated in the subpoena and the subpoena may also require the person to produce at the hearing the documents or other things in the person’s possession, control or power relevant to the matters in question in the appeal that are specified in the subpoena. (Form 141(1))
(1.1) Unless otherwise directed by the Court, a subpoena must be served on a person whose attendance is required at the hearing, at least five days before the day on which that person is required to appear.
(2) On the request of a party or of counsel, the Registrar, or some other person authorized by the Chief Justice, shall sign, seal and issue a blank subpoena and the party or counsel may complete the subpoena and insert the names of any number of witnesses.
(3) No subpoena for the production or an original record or document that may be proved by a certified copy shall be served without leave of the Court.
(4) No person is required to attend at a hearing unless the subpoena has been served on that person personally in accordance with subsection (1.1) and, at the same time, witness fees and expenses calculated in accordance with Schedule II, Tariff A have been paid or tendered to the person.
(5) Service of a subpoena and the payment or tender of the witness fees and expenses may be proved by affidavit.
(6) A subpoena continues to have effect until the attendance of the witness is no longer required.
(7) Where a witness whose evidence is material to a proceeding is served with a subpoena and the proper witness fees and expenses are paid or tendered to the witness, and the witness fails to attend the hearing or to remain in attendance in accordance with the requirement of the subpoena, the judge may by a warrant for arrest cause the witness to be apprehended and forthwith brought before the Court. (Form 141(7))
(8) On being apprehended, the witness may be detained in custody until the presence of the witness is no longer required, or the witness is released on such terms as are just, and the witness may be ordered to pay the costs arising out of the failure to attend or remain in attendance.
- SOR/2004-100, s. 44(E);
- SOR/2007-142, s. 15;
- SOR/2008-303, s. 18.
Compelling Attendance of Witness in Custody
142 The Court may direct the attendance as a witness of a person who is in the custody of any other person including the custodian of any of Her Majesty’s prisons. (Form 142)
Evidence At Hearing of an Appeal
Evidence of Particular Facts
143 (1) Before or at the hearing, the Court may direct that evidence of a particular fact shall be given in such manner and subject to such conditions as the Court may specify and in particular that the evidence shall be given,
(a) by affidavit,
(b) by statement on oath or affirmation of information and belief,
(c) by the production of documents or of entries in books or of copies thereof,
(d) where a fact is a matter of common knowledge, either generally or in a particular place, by the production of a newspaper which contains a statement of that fact.
(2) A direction made before the hearing under subsection (1) may be set aside or varied by the judge when it appears necessary to do so in the interests of justice.
Evidence by Witnesses
(2) The judge shall exercise reasonable control over the mode of interrogation of a witness so as to protect the witness from undue harassment or embarrassment and may disallow a question put to a witness that is vexatious or irrelevant to any matter that may properly be enquired into at the hearing.
(3) The judge may, at any time, direct that a witness be recalled for further examination.
(4) Where a witness appears unwilling or unable to give responsible answers, the judge may permit the party calling the witness to examine him or her by means of leading questions.
(b) a written statement signed by a proposed expert witness accompanied by a certificate of counsel indicating that counsel is satisfied that the statement represents evidence that the proposed expert witness is prepared to give in the matter; or
(c) a written statement in any other form authorized by direction of the Court in a particular case and for special reasons.
(2) An expert report shall
(a) set out in full the evidence of the expert;
(b) set out the expert’s qualifications and the areas in respect of which it is proposed that they be qualified as an expert witness; and
(c) be accompanied by a certificate in Form 145(2) signed by the expert acknowledging that they have read the Code of Conduct for Expert Witnesses set out in Schedule III and agree to be bound by it.
(3) If an expert fails to comply with the Code of Conduct for Expert Witnesses, the Court may exclude some or all of their expert report.
(5) In deciding whether to grant leave, the Court shall consider all relevant matters, including
(6) Two or more of the parties may jointly name an expert witness.
(7) Unless otherwise directed by the Court, no evidence in chief of an expert witness shall be received at the hearing in respect of an issue unless
(a) the issue has been defined by the pleadings or by written agreement of the parties stating the issues;
(b) their expert report prepared in accordance with subsection (2) has been served on all other parties not less than 90 days before the commencement of the hearing; and
(c) the expert witness is available at the hearing for cross-examination.
(8) Subject to subsection (7), evidence in chief of an expert witness may be given at the hearing
(a) by the reading of all or part of the expert report by the witness, unless the Court, with the consent of the parties, permits it to be taken as read; and
(b) if the party calling the witness so elects, by the verbal testimony of the expert witness
(9) A litigation process conference other than a settlement conference may address
(a) any objection to the evidence of an adverse party’s proposed expert witness and the basis of the objection;
(b) any benefit to the conduct of the proceeding that would be achieved by ordering that the proposed expert witnesses confer with one another before the hearing in order to narrow the issues and identify the points on which their views differ;
(c) the need for any additional or rebuttal expert witness evidence;
(d) the number of proposed expert witnesses and the manner of presentation of their evidence; and
(e) any other issue arising from the expert reports of proposed expert witnesses.
(10) The Court, at the request of a party or on its own initiative, may at any time order that expert witnesses confer with one another before the hearing in order to narrow the issues and identify the points on which their views differ.
(11) The parties and their counsel may attend an expert conference but the conference may take place in the parties’ absence if the parties agree.
(12) The Court may order that an expert conference take place in the presence of a judge.
(13) A joint statement prepared by two or more expert witnesses following an expert conference is admissible in evidence at the hearing.
(14) Discussions in an expert conference and documents prepared for the conference are confidential and shall not be disclosed to the judge presiding at the hearing of the appeal except with consent of the parties.
(15) Unless otherwise directed by the Court, no evidence of an expert witness, including their expert report, shall be led in rebuttal of any evidence referred to in paragraph (7)(b) unless the rebuttal evidence has been reduced to writing in accordance with this section and a copy is served on the other parties not less than 60 days before the commencement of the hearing.
(16) Unless otherwise directed by the Court, no evidence of an expert witness, including an expert report, shall be led in surrebuttal of any evidence tendered under subsection (15) unless the surrebuttal evidence has been reduced to writing in accordance with this section and a copy has been served on the other parties not less than 30 days before the commencement of the hearing.
(17) The Court may require that some or all of the expert witnesses testify as a panel after the completion of the testimony of the non-expert witnesses of each party or at any other time that the Court determines.
(18) The Court may identify matters that are within the area of expertise of the panel members and pose questions to the panel members about those matters.
(19) Expert witnesses shall give their views and may be directed to comment on the views of other panel members and to make concluding statements. They may, with leave of the Court, pose questions to other panel members.
(20) On completion of the testimony of the panel, panel members may be cross-examined and re-examined in the sequence directed by the Court.
- SOR/95-113, s. 9;
- SOR/2014-26, s. 18.
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