120. (1) Subject to subsection (2), sections 101 to 112 apply to the examination of a witness under section 119, unless the Court directs otherwise.
(2) A witness examined under section 119 may be examined, cross-examined and re-examined in the same manner as a witness at a hearing.
Examinations Outside Canada
121. Where a direction is given under section 119 for the examination of a witness outside of Canada, the direction shall, if the moving party requests it, provide for the issuing of a commission and letter of request under section 112 and for the taking of the evidence of the witness and, on consent of the parties, any other witness in the same jurisdiction, and the direction shall be in Form 112(2)(b)A — DIRECTION.
Use at Hearing
122. (1) Any party may use at the hearing the transcript and a videotape or other recording of an examination under sections 119 and 121 as the evidence of the witness, unless the Court directs otherwise for any sufficient reason.
(2) A witness whose evidence has been taken under section 119 or 121 shall not be called to give evidence at the hearing, except with leave of the judge.
(3) Use of evidence taken under section 119 or 121 is subject to any ruling by the judge respecting its admissibility.
(4) The transcript and a videotape or other recording may be filed with the Court at the hearing and need not be read or played at the hearing unless a party or the judge requires it.
LISTING FOR HEARING
How Appeal is Set Down for Hearing
123. (1) After the close of pleadings, any party to an appeal, who is not in default under these rules or a judgment of the Court and who is ready for hearing, may apply in writing to the Registrar to fix the time and place of hearing.
(2) Where all parties agree on the making of a joint application, it shall be made in Form 123.
(3) Where all parties do not agree on making a joint application, the party making the application shall file a memorandum containing the information, as far as the applicant is concerned, required in Form 123 and shall serve a copy of the memorandum on all other parties and those parties shall, within ten days of service of the memorandum, file and serve on the party applying a similar memorandum.
(4) Subject to any direction by the Chief Justice, the Registrar, or a person designated by the Registrar or the Chief Justice, may,
(a) upon receipt of a joint application,
(b) upon receipt of an application and of the separate memorandum of each party, or
(c) upon receipt of an application and after the time has expired for the filing of the separate memorandum of each party,
fix the time and place for the hearing.
(5) The Registrar shall forthwith send, by registered mail, notice of the time and place fixed for the hearing to all parties.
- SOR/93-96, s. 14;
- SOR/95-113, s. 5;
- SOR/2004-100, s. 15.
124. [Repealed, SOR/2004-100, s. 16]
125. (1) Where an appeal has not been set down for hearing or terminated by any means within four months after filing the reply or after the last day for filing the reply, whichever is later, subject to any direction by the Chief Justice, the Registrar or a person designated by the Registrar or the Chief Justice may serve on the Deputy Attorney General of Canada and on the counsel of record for the appellant or, where the appellant acts in person, on the appellant, a notice of status hearing at least 30 days before the date fixed for that hearing, and the hearing shall be held before a judge.
(2) A counsel who receives a notice of status hearing shall forthwith give a copy of the notice to that counsel’s client.
(3) Unless the appeal has been set down for hearing or terminated by any means before the date fixed for the status hearing, the counsel of record shall attend the status hearing and the parties may attend the hearing.
(4) Where a party represented by counsel does not attend the hearing, that counsel shall file proof that a copy of the notice was given to the party.
(5) At the status hearing,
(a) if a reply has been filed, the judge may
(i) set time periods for the completion of any remaining steps in the appeal,
(ii) dismiss the appeal for delay, or
(iii) make any order or give any other direction that is appropriate; and
(b) if a reply has not been filed, the judge may,
(i) direct that the appeal be allowed if the facts alleged in the notice of appeal entitle the appellant to the judgment sought,
(ii) direct that the appeal be heard on the basis that the facts alleged in the notice of appeal are presumed to be true and make a direction regarding the hearing fee, or
(iii) make any order or give any other direction that is appropriate.
(6) The presumption in subparagraph (5)(b)(ii) is a rebuttable presumption.
(7) Where a party fails to comply with an order or direction made under subsection (5), the Court may, on application or of its own motion, allow the appeal, dismiss the appeal or make such other order as is just.
- SOR/93-96, s. 15;
- SOR/95-113, s. 6;
- SOR/99-209, s. 6;
- SOR/2004-100, s. 17;
- SOR/2007-142, s. 13.
- Date modified: