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Federal Courts Rules (SOR/98-106)

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Regulations are current to 2021-04-05 and last amended on 2019-06-17. Previous Versions

PART 4Actions (continued)

Pre-Trial (continued)

Taking of Trial Evidence out of Court (continued)

Marginal note:Commission for examination outside Canada

  •  (1) Where an examination under rule 271 is to be made outside Canada, the Court may order the issuance of a commission under the seal of the Court, letters rogatory, a letter of request or any other document necessary for the examination in Form 272A, 272B or 272C, as the case may be.

  • Marginal note:Examination outside Canada

    (2) A person authorized under subsection (1) to take the examination of a witness in a jurisdiction outside Canada shall, unless the parties agree otherwise or the Court orders otherwise, take the examination in a manner that is binding on the witness under the law of that jurisdiction.

Marginal note:Use of evidence at trial

 Unless the Court orders otherwise, evidence obtained on an examination under subsection 271(1) or (4) may, without further proof, be used in evidence by any party.

Trial Procedure


Marginal note:Order of presentation

  •  (1) Subject to subsection (2), at the trial of an action, unless the Court directs otherwise,

    • (a) the plaintiff shall make an opening address and then adduce evidence;

    • (b) when the plaintiff’s evidence is concluded, the defendant shall make an opening address and then adduce evidence; and

    • (c) when the defendant’s evidence is concluded, the plaintiff may adduce reply evidence.

  • Marginal note:Multiple parties

    (2) Where the Court has made an order permitting two or more plaintiffs to put in separate cases, or where more than one defendant is separately represented, the order of presentation shall be as directed by the Court.

Marginal note:Directions re proof or evidence

 The Court may give directions at trial concerning the method of proving a fact or of adducing evidence.

Marginal note:Exhibits

 All exhibits adduced in evidence shall be marked and numbered.

Marginal note:Inspection by Court

 The Court may, in the presence of solicitors for the parties, inspect any place or thing in respect of which a question may arise at trial.

Marginal note:Order of argument

  •  (1) Unless the Court directs otherwise, the parties shall be heard in argument, after all parties have been given full opportunity to put in their respective cases, in the order in which they adduced evidence.

  • Marginal note:Right of reply

    (2) A party shall have a right of reply to the arguments of adverse parties and, if the party raises a new point of law, an adverse party may answer on that point.

Expert Witnesses

Marginal note:Admissibility of expert’s evidence

 Unless the Court orders otherwise, no expert witness’s evidence is admissible at the trial of an action in respect of any issue unless

  • (a) the issue has been defined by the pleadings or in an order made under rule 265;

  • (b) an affidavit or statement of the expert witness prepared in accordance with rule 52.2 has been served in accordance with subsection 258(1), rule 262 or an order made under rule 265; and

  • (c) the expert witness is available at the trial for cross-examination.

  • SOR/2006-219, s. 6
  • SOR/2010-176, s. 7

Marginal note:Tendering of expert’s evidence at trial

  •  (1) Unless the Court orders otherwise, evidence in chief of an expert witness may be tendered at trial by

    • (a) the witness reading into evidence all or part of an affidavit or statement referred to in paragraph 279(b); and

    • (b) the witness explaining any of the content of an affidavit or statement that has been read into evidence.

  • Marginal note:Other evidence with leave

    (1.1) Despite subsection (1), an expert witness may tender other evidence in chief with leave of the Court.

  • Marginal note:Affidavit taken as read

    (2) With leave of the Court, all or part of an affidavit or statement referred to in paragraph 279(b) may be taken as read into evidence by the witness.

  • Marginal note:Prohibition on pre-trial cross-examination

    (3) Except with leave of the Court, there shall be no cross-examination before trial on an affidavit or statement referred to in paragraph 279(b).

  • SOR/2006-219, s. 7
  • SOR/2010-176, s. 8
  • SOR/2013-18, s. 6

 [Repealed, SOR/2006-219, s. 8]

Evidence at Trial

Marginal note:Examination of witnesses

  •  (1) Unless the Court orders otherwise, witnesses at trial shall be examined orally and in open court.

  • Marginal note:Witnesses to testify under oath

    (2) All witnesses shall testify under oath.

Marginal note:Expert witness panel

 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 may determine.

  • SOR/2010-176, s. 9

Marginal note:Testimony of panel members

  •  (1) Expert witnesses shall give their views and may be directed to comment on the views of other panel members and to make concluding statements. With leave of the Court, they may pose questions to other panel members.

  • Marginal note:Examination of panel members

    (2) On completion of the testimony of the panel, the panel members may be cross-examined and re-examined in the sequence directed by Court.

  • SOR/2010-176, s. 9

Marginal note:Interpreter

 Rule 93 applies, with such modifications as are necessary, to the use of an interpreter at trial.

Marginal note:Failure to appear

  •  (1) Where on the day of a trial, a party who intends to call witnesses does not produce them or justify their absence, the Court may declare the party’s proof closed.

  • Marginal note:Adjournment

    (2) Subject to subsection (3), where a party demonstrates due diligence and the Court is satisfied that an absent witness is necessary and that the absence of the witness is not due to any contrivance on the party’s part, the Court may adjourn the hearing.

  • Marginal note:Avoidance of adjournment

    (3) An adverse party may require a party seeking an adjournment under subsection (2) to declare, or to produce some other person to declare, under oath the facts that, in the opinion of the party seeking the adjournment, the defaulting witness would have stated, and may avoid the adjournment by admitting the truth of those facts or that the witness would have stated those facts.

Marginal note:Proof by affidavit

 The Court may, at any time, order that any fact be proven by affidavit or that the affidavit of a witness be read at trial.

Marginal note:Order re giving evidence

 The Court may, before trial, order that evidence of any fact be given at the trial in such a manner as may be specified in the order, including

  • (a) by statement on oath of information or belief;

  • (b) by the production of documents or other material;

  • (c) by the production of copies of documents; or

  • (d) in the case of a fact that is or was a matter of common knowledge either generally or in a particular district, by the production of a specified publication containing a statement of that fact.

Demonstrative Evidence

Marginal note:Admissibility

 Except with leave of the Court, no plan, photograph, model or other demonstrative evidence prepared or obtained for use at trial is admissible in evidence at trial, other than in the course of cross-examination, unless at least 30 days before the commencement of the trial all other parties have been given an opportunity to inspect it and consent to its admission without further proof.

Use of Examination for Discovery at Trial

Marginal note:Reading in examination at trial

 A party may introduce as its own evidence at trial any part of its examination for discovery of an adverse party or of a person examined on behalf of an adverse party, whether or not the adverse party or person has already testified.

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