Civil Procedure Rules of Nova Scotia  
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Part 2 - Civil Proceedings

Rule 7 - Judicial Review and Appeal

Interpretation in Rule 7
7.01   In this Rule,
    “decision”, includes all of the following:
   
(i)
an action taken, or purportedly taken, under legislation,
   
(ii)
an omission to take action required, or purportedly required, by legislation,
   
(iii)
a failure to make a decision;
    “decision-making authority” includes anyone who makes, neglects to make, takes, or neglects to take a decision.
Scope of Rule 7
7.02 (1) This Rule provides procedures for a judicial review by the court, or an appeal to the court.
  (2) This Rule applies to each of the following:
   
(a)
judicial review of a decision within the supervisory jurisdiction of the court;
   
(b)
review of a decision under legislation authorizing review other than by appeal;
   
(c)
habeas corpus for civil detention, and an application for habeas corpus to which the Criminal Code applies is started under Rule 64 - Prerogative Writ;
   
(d)
an appeal to the court in accordance with legislation, except a summary conviction appeal is provided for in Rule 63 - Summary Conviction Appeal.
  (3) A person may seek judicial review or bring an appeal, in accordance with this Rule.
       
Processes leading to hearing
7.03 (1) A person may seek judicial review, except habeas corpus, by filing a notice for judicial review under Rule 7.05.
  (2) A person may start an application for habeas corpus by filing a notice for habeas corpus under Rule 7.12.
  (3) A person may start an appeal by filing a notice of appeal under Rule 7.19.
       
Legislation prevails
7.04   The provisions of legislation, such as the regulations under the Small Claims Court Act, establishing procedures to be followed on a judicial review or an appeal prevail over an inconsistent provision of this Rule.
       
Judicial review application
7.05 (1) A person may seek judicial review of a decision by filing a notice for judicial review before the earlier of the following:
   
(a)
twenty-five days after the day the decision is communicated to the person;
   
(b)
six months after the day the decision is made.
  (2) A person who files a notice for judicial review must include, in the notice for judicial review, a notice of motion for directions to organize the judicial review.
  (3) The date for hearing of the motion for directions must be no later than twenty-five days after the day the notice is filed.
  (4) The notice must contain a standard heading written in accordance with Rule 82 - Administration of Civil Proceedings, be entitled “Notice for Judicial Review”, be dated and signed, and include all of the following:
   
(a)
a notice that the applicant requests judicial review of a decision including the name of the decision-making authority, the date of the decision, and the legislative or other authority under which the decision was made or which requires the decision to be made;
   
(b)
the date when the decision was communicated to the applicant;
   
(c)
if available, an attached copy of the decision or documents showing what decision was made and, otherwise, an attached summary of the decision ;
   
(d)
a concise statement of the grounds for the review;
   
(e)
a description of the order the applicant seeks;
   
(f)
a notice that a respondent may participate in, and be entitled to notice of further steps in the judicial review, if the respondent files a notice of participation no more than ten days after the day the respondent is notified of the proceeding for judicial review;
   
(g)
a statement of what the record will include, when it is likely to be produced, and whether the applicant believes there will be any difficulty obtaining it;
   
(h)
a notice of the obligations of the decision-making authority under Rule 7.09;
   
(i)
a statement of whether the applicant will make a motion for a stay or other interim remedy;
   
(j)
a statement explaining how documents are filed and the requirement for immediate delivery to a party entitled to notice;
   
(k)
if there is only one applicant, a designation of an address for delivery of documents to that applicant and, if there is more than one applicant, a designation of one address for delivery to all applicants or separate addresses for each;
   
(l)
notice of a motion for directions and the appointment of a time, date, and place for the judicial review to be heard;
   
(m)
an acknowledgement of the effect of delivery to the designated address and a statement that further contact information is available from the prothonotary;
   
(n)
notice that the judge and the court may proceed in the absence of the respondent if the respondent, or the respondent’s counsel, does not attend the hearing of the motion for directions.
  (5) The notice for judicial review may be in Form 7.05.
       
Date for motion for directions
7.06 (1) A person who wishes to start a proceeding for judicial review must request the prothonotary appoint a time and date for the motion for directions to be heard.
  (2) Outside of Halifax, the request may be made to the prothonotary or a judge.
  (3) The prothonotary, or a member of the judge’s office, must immediately appoint a time and date for the motion to be heard.
  (4) The date must be no more than twenty-five days after the day the request is made, unless the parties agree or a judge orders otherwise.
  (5) The applicant must file the notice no more than one day after the day the prothonotary provides a time and date.
       
Notification
7.07   The applicant must notify all of the following persons in accordance with Rule 31 - Notice, not more than ten days after the day the notice for judicial review is filed:
   
(a)
each respondent;
   
(b)
the Attorney-General of Canada, if the decision-making authority is appointed or employed by anyone under an enactment of Parliament;
   
(c)
the Attorney-General of Nova Scotia, if the decision-making authority is appointed or employed by anyone under an enactment of the Nova Scotia Legislature.
       
Participation by respondent
7.08 (1) A respondent who wishes to participate in a proceeding for judicial review must file a notice of participation.
  (2) A notice of participation must be filed no more than ten days after the day the respondent is notified of the proceeding in accordance with Rule 31 - Notice.
  (3) A notice of participation must contain the standard heading, be entitled “Notice of Participation”, be dated and signed, and include all of the following:
   
(a)
a statement giving notice of the participation;
   
(b)
a concise statement of the respondent’s position on the review, including whether the respondent supports the decision in whole or in part and, if in part, the part the respondent does not support;
   
(c)
if the person contends that the decision under review is justified by grounds different than those expressed in the decision or should be reviewed on grounds different than the applicant’s grounds, a concise statement of the alternate grounds;
   
(d)
an acknowledgement of the effect of delivery to the designated address and a statement that
   
(e)
if the notice is for only one respondent, a designation of the address for delivery of documents to the respondent and, if it is for more than one respondent, a designation of one address for delivery to all respondents, or, a separate address for each respondent.
  (4) The notice of participation may be in Form 7.08.
       
Production of record by decision-making authority
7.09 (1) The decision-making authority must file with the court, and deliver to the applicant, one of the following no more than five days after the day the decisionmaking authority is notified of the proceeding for judicial review:
   
(a)
a complete copy of the record, with copies of separate documents separated by pages with numbered or lettered tabs;
   
(b)
a statement indicating that the decision-making authority has made arrangements with the applicant to produce the record, providing details of those arrangements, and estimating when the record will be ready;
   
(c)
an undertaking that the decision-making authority will appear before the judge at the time of the motion for directions and seek directions concerning the record.
  (2) A decision-making authority who gives reasons orally without a record must include in the record a summary of the reasons and the decision-making authority’s certificate that the summary is accurate.
  (3) A judge may grant an injunction against a decision-making authority who fails to comply with this Rule 7.09, and the judge may order the authority to indemnify each other party for expenses resulting from the failure, including expenses caused by an adjournment if that is a result.
       
Directions for judicial review
7.10   A judge hearing a motion for directions may give any directions that are necessary to organize the judicial review, including a direction that does any of the following:
   
(a)
settles what will make up the record and whether something is part of the record;
   
(b)
assigns responsibility to prepare, file, and deliver the record;
   
(c)
directs the format in which the record will be produced, and whether a party must receive a paper copy of a record that is in electronic format;
   
(d)
provides for the protection of information claimed to be privileged or otherwise subject to a confidentiality protected by law, delivery of the information to the judge who determines the claim, and maintenance of a record for review by the Court of Appeal, under Rule 85 - Access to Court Records;
   
(e)
allows an amendment to the notice for judicial review or a notice of participation;
   
(f)
directs whether there are interested persons who are not parties and, if necessary, adjourns the motion until an interested person is made a party or joins an interested person as a respondent;
   
(g)
rules on the admissibility of evidence sought to be introduced at the review hearing;
   
(h)
provides for the introduction of admissible evidence by affidavit or otherwise, and provides for any reply affidavits, cross-examination at the hearing, or cross-examination outside court with a transcript;
   
(i)
sets deadlines for filing the record, the applicant’s brief, the respondent’s brief, and any reply brief of the applicant;
   
(j)
directs further appearances before a judge, if necessary, and directs whether those appearances will be before the same judge and whether they will be in chambers, in conference, or at appearance day;
   
(k)
appoints the time, date, and place for the hearing of the judicial review.
       
Order following review
7.11   The court may grant any order in the court’s jurisdiction that will give effect to a decision on a judicial review, including any of the following orders:
   
(a)
an order dismissing the proceeding;
   
(b)
an order setting aside the decision under review, or part of it, and terminating any legal process flowing from the decision, or the part;
   
(c)
an injunction preventing a respondent from doing anything, or requiring a respondent to do anything;
   
(d)
a declaration that the respondent lacks the authority or has authority to do something;
   
(e)
an order providing anything formerly provided by prerogative writ.
       
Notice for habeas corpus
7.12 (1) A person under detention may require the court to review the legality of the detention by filing a notice for habeas corpus.
  (2) For the purpose of the Liberty of the Subject Act, a notice for habeas corpus is an application for an order in lieu of a writ of habeas corpus ad subjiciendum, including an order nisi and an order in the nature of certiorari.
  (3) The Attorney General of Canada or the Attorney General of Nova Scotia, or both of them, must be respondents if the detention has any connection with the government of Canada, the government of Nova Scotia, or both.
  (4) The notice must contain a standard heading written in accordance with Rule 82 - Administration of Civil Proceedings, be entitled “Notice for Habeas Corpus”, be dated and signed by the applicant, the applicant’s counsel, or an agent approved by a judge, and, unless the applicant cannot obtain the information, include all of the following:
   
(a)
the name and place of detention;
   
(b)
the names of, or offices held by, individuals holding the applicant on behalf of the respondent;
   
(c)
any reasons given to the applicant for the detention;
   
(d)
information about what prevents the applicant from leaving the place of detention;
   
(e)
the request for habeas corpus;
   
(f)
the grounds on which the applicant contends that the detention is illegal
   
(g)
a statement that information about the means for communicating with the applicant and the respondent have been given to the prothonotary.
  (5) A notice for habeas corpus may be in Form 7.12.
  (6) A notice for habeas corpus to review detention in a provincial correctional facility or a federal penitentiary in Nova Scotia must be filed at the office of the prothonotary in the district in which the facility or penitentiary is situate, unless a judge permits otherwise.
  (7) A prothonotary must not refuse to file or act on a document purporting to seek review by way of habeas corpus unless a judge concurs in writing, but a prothonotary in one district who receives a notice for habeas corpus to review detention in a provincial correctional facility or a federal penitentiary located in another district in Nova Scotia may deliver the notice to the office of the prothonotary in that other district, unless a judge directs otherwise.
       
Order for habeas corpus
7.13 (1) Habeas corpus takes priority over all other business of the court.
  (2) When a notice for habeas corpus is filed, a judge must immediately do all of the following:
   
(a)
appoint the earliest practical time and date and a place for a judge to give directions on the course of the proceeding;
   
(b)
order any person detaining the applicant to bring the applicant before the judge at the set time and date;
   
(c)
order a respondent to produce all documents relating to the detention immediately to the court;
   
(d)
cause the parties to be notified of the time, date, and place of the hearing for directions.
  (3) An order to bring the applicant before a judge may include the statement, “Failure to obey this order may lead to contempt proceedings.”
  (4) The order may be in Form 7.13.
       
Directions to determine legality of detention
7.14   A judge giving directions as a result of an order for habeas corpus may provide directions necessary for a quick and fair determination of the legality of the applicant’s detention, including any of the following:
   
(a)
set a date for the court to determine the legality of the detention;
   
(b)
order a person detaining the applicant to bring the applicant before the court for the hearing;
   
(c)
set dates for filing affidavits and briefs;
   
(d)
order production of a document not already produced;
   
(e)
order attendance of a witness for direct examination, if the evidence is not obtained by affidavit;
   
(f)
order attendance of a witness for cross-examination;
   
(g)
determine what documents will constitute the record;
   
(h)
start a proceeding, under Rule 89 - Contempt, against a person who receives an order to bring the applicant before the judge or produce a document and fails to make every reasonable effort to comply with the order;
   
(i)
adjourn the proceeding and make any order necessary to obtain the presence of the applicant.
       
Interim release on habeas corpus
7.15   A judge may order bail for an applicant.
       
Final determination following habeas corpus
7.16   A judge may release or remand the applicant on determining whether or not the detention is legal.
       
Abuse of habeas corpus
7.17 (1) A person who applies for habeas corpus commits an abuse of process if both of the following apply:
   
(a)
the detention has already been determined to be legal by the court;
   
(b)
no new ground has arisen since the determination.
  (2) The abuse may be dealt with under Rule 88 - Abuse of Process.
       
Other forms of habeas corpus
7.18   This Rule does not apply to the powers of the court or a judge regarding habeas corpus ad testificandum, the powers under Rule 50 - Subpoena, or any power of a judge or the court to order prisoners to be transported for attendance at court.
       
Notice of appeal
7.19 (1) A person may bring an appeal under legislation that provides for an appeal to the court or a judge by filing a notice of appeal before the earlier of the following:
   
(a)
thirty days after the day the decision is communicated to the person;
   
(b)
six months after the day the decision is made.
  (2) A person who files a notice of appeal must, in the notice, provide for a motion to be heard no more than twenty-five days after the day the notice of appeal is filed, for directions and for setting a time and date when the appeal is to be heard.
  (3) The notice of appeal must have a standard heading written in accordance with Rule 82 - Administration of Civil Proceedings, be entitled “Notice of Appeal”, be dated and signed, and include all of the following:
   
(a)
a notice that the appellant appeals a decision, including a reference to the legislation authorizing the appeal, the name of the decision-making authority, and the date of the decision;
   
(b)
the date on which the decision was communicated to the appellant;
   
(c)
if available, an attached copy of the decision and, otherwise, an attached summary of the decision;
   
(d)
a concise statement of all grounds of appeal;
   
(e)
a description of the order the appellant seeks;
   
(f)
a description of the arrangements for production of the record, the expected content of the record, and when the record will be produced;
   
(g)
if there is only one appellant, a designation of an address for delivery of documents to the appellant and, if there is more than one appellant, a designation of one address for delivery to all appellants or separate addresses for each;
   
(h)
a statement explaining how documents are filed, the requirement for immediate delivery to the appellant and other parties entitled to notice;
   
(i)
an acknowledgement of the effect of delivery to the designated address and a statement that further contact information is available from the prothonotary;
   
(j)
notice of a motion for directions and for the appointment of a time, date, and place for the appeal to be heard;
   
(k)
a notice that the judge may proceed in the absence of the respondent, and the court may determine the appeal if the respondent, or the respondent’s counsel, does not attend the motion for direction
  (4) The notice of appeal may be in Form 7.19.
  (5) A copy of a written decision that is appealed from must be filed with the notice of appeal
  (6) The appellant must notify each respondent in accordance with Rule 31 - Notice no less than ten days before the day the motion for directions is to be heard.
       
Cross-appeal and contention
7.20   The provisions under Rule 90 - Civil Appeal, made from time to time by judges of the Court of Appeal for a cross-appeal and a contention, are incorporated as if the text were included in this Rule 7, except the notice of cross-appeal, and the notice of contention, must be filed no less than one day before the day the motion for directions is to be heard.
       
Date for motion for directions
7.21 (1) A person who wishes to start an appeal must request the prothonotary to appoint a time and date for the motion for directions to be heard.
  (2) Outside of Halifax, the request may be made to the prothonotary or a judge.
  (3) The prothonotary, or a member of the judge’s office, must immediately appoint a time and date for the motion to be heard.
  (4) The date must be no more than twenty-five days after the day the request is made, unless the parties agree, or a judge directs, otherwise.
  (5) The party making the request must file the notice of appeal immediately after the prothonotary assigns a date.
       
Notification
7.22   The appellant must notify each other party of the motion for directions in accordance with Rule 31 - Notice not more than ten days after the day the notice of appeal is filed.
       
Directions for an appeal
7.23   The judge hearing the motion for directions for an appeal may do any of the following:
   
(a)
appoint a time, date, and place for hearing the appeal;
   
(b)
make an order settling each respondent’s address for delivery;
   
(c)
set dates for filing the appeal book, the appellant’s brief, the respondent’s brief, and an appellant’s brief in reply to arguments on a cross-appeal or notice of contention;
   
(d)
give the kinds of directions referred to in Rule 7.10.
       
Appeal Book
7.24   The appeal book must include all of the following, unless a judge orders otherwise:
   
(a)
copies of all documents by which the proceeding under appeal was initiated;
   
(b)
copies of pleadings or documents similar to pleadings;
   
(c)
the decision under appeal, if it is not included in the transcript;
   
(d)
any agreed statement of facts on which the decision was made;
   
(e)
if there is a record, all of the following:
      (i) a transcript of the hearing under appeal, or such excerpts as the parties may agree or the judge may direct,
      (ii) copies of documentary exhibits,
      (iii) copies of documents that were considered by the decision-making authority, but were not marked as exhibits,
      (iv) a list of exhibits that are not documentary;
   
(f)
copies of written orders or directions given by the decision-making authority in the course of the proceeding under appeal;
   
(g)
any other material a judge directs be included in the book.
       
Applicant or appellant to pay expenses of record
7.25   The applicant for judicial review, or the appellant, must pay for transcriptions and duplications provided in the record.
       
Consolidation of judicial review or appeal
7.26 (1) A judge may order two or more proceedings for judicial review or appeal to be consolidated, or heard together.
  (2) A motion for consolidation, or hearing together, must be made at the same time as the motion for directions, unless a judge orders otherwise.
       
Evidence on judicial review or appeal
7.27 (1) A party who proposes to introduce evidence beyond the record on a judicial review or appeal must file an affidavit describing the proposed evidence and providing the evidence in support of its introduction.
  (2) An applicant for judicial review, or an appellant, must file the affidavit when the notice for judicial review or the notice of appeal is filed, and a respondent must file the affidavit no less than five days before the day the motion for directions is to be heard.
  (3) A motion for permission to introduce new evidence must be made at the same time as the motion for directions, unless a judge orders otherwise.
       
Stay pending judicial review or appeal
7.28 (1) A judge may stay a decision under judicial review or appeal and any process flowing from the decision until the determination of the judicial review or appeal.
  (2) A motion for a stay must be made at the same time as the motion for directions, unless a judge orders otherwise.
  (3) The motion must be made by notice of motion in accordance with Rule 23 - Chambers Motion, although it is mentioned in the notice of appeal or notice for judicial review.
  (4) A judge may grant an interim stay until the hearing of a motion for a stay.
  (5) The judge may grant any order, including an injunction, as may be necessary to effectively stay a decision.
       
Dismissal of dormant review
7.29   The prothonotary must make a motion to dismiss a judicial review, habeas corpus, or appeal five years after the notice for judicial review, notice for habeas corpus, or notice of appeal is filed, if no hearing date is set.
       

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