Suggestions:

As of May 24, 2007

Re: Rule 18 - Examination for Discovery
Suggestion:
Discoveries of non-expert witnesses should be permitted after the filing of the Notice of Trial, and no adjournments should be allowed for failure to hold discoveries unless a party has failed to comply with an order to submit for discovery. (K.E. MacDonald)

Re: Rule 20 - Discovery and Inspection of Documents
Suggestions:
For personal injury cases, this rule should identify what documents must be included in the list.

Either R.20.01 should be amended to allow the parties more time in which to file their respective lists of documents, or the Originating Notice should allow the plaintiff to select a time period greater than 60 days for the filing of the list. (K.E. MacDonald)

Re: Rule 28 - Place and Mode of Trial and Setting Down
Suggestions:
Rule 28.13 should specify the circumstances in which an application could be made to dismiss a matter, and the factors which the court might consider.

The Rules should allow the Notice of Trial to be issued immediately following the filing of the list of documents in matters where the amount claimed is less than $100,000.

A plaintiff should have to file a Notice of Intention to Proceed within two years, rather than the current three. (K.E. MacDonald)

Re: Rule 37 - Applications
Suggestions:
If possible, and depending on the issues, any pre-hearing brief in a matter involving less than $100,000 should be limited to 10 pages in length.

37.02 should require the Notice of Application to set out the grounds for the application. (K.E. MacDonald)

Re: Rule 63 - Costs
Suggestion:
For determination of party and party costs, the Rules should allow for more weight to be given to the amount claimed. (K.E. MacDonald)

Re: Provincial Court Fines
Suggestion:
A Provincial Court order for a fine should become a Supreme Court Judgment simply by filing a certified copy of the Provincial Court order. (K.E. MacDonald).

 

As of March 22, 2007

Re: R. 20, Discovery and inspection of documents
Suggestions:
1. This Rule should include a mechanism for contested documents to be sealed and reviewed by the Chambers Judge.

2. Parties withholding a document on the ground of irrelevance should identify the document and the specific reason for non-disclosure. Adding the words “or irrelevant” immediately after the word “privileged” in the first line of R. 20.01(3) would achieve this requirement. (G. F. Proudfoot , QC)

Re: R. 28.05, Setting down for trial without a jury
Suggestion:
This Rule should provide an opposing party with 10 days from the date of receipt to object, rather than the current standard of 10 days from the date of filing. (G. F. Proudfoot , QC)

 

As of November 15, 2006

Re: R. 18, 19 & 20, Discovery & Disclosure
Suggestions:
1. The rules relating to discovery and disclosure should expressly exclude the Crown when not a party to proceedings.

2. If the rules are amended to require an application to court for leave to discover a non-party, then 10 days' notice should be required, to enable the non-party to appear and oppose the application (M. Donovan, QC)

Re: Practice Memorandum 12, Quieting of Titles
Suggestion: On an application for an order for directions, the requirement at clause 3(e) to file an affidavit which includes, as schedules, the documents referred to at ss . 5 and 6 of the Quieting Titles Act, should be deleted, as those documents would already have been filed with the Court. (A. Parker)

 

As of February 10, 2006

Re: R. 31.29, subpoena in aid of an inferior court or tribunal
Suggestion: The rule should be changed by either removing the
prothonotary's power to issue a subpoena where an inferior court or
tribunal has the power to compel witnesses, or by changing the wording
from "in aid of" to "when requested by" an inferior court or tribunal.
(S. MacIntosh)

 

As of January 24, 2006

Re: Practice Memorandum 12, Quieting titles
Suggestions:
1. Under the heading "Pleadings", the P.M. should state that where the
action is commenced in the Halifax Regional Municipality, the original
plus three copies of all originating documentation should be served on
the Attorney General, and where the action is commenced outside HRM, the
original plus four copies of all originating documentation should be
served on the Attorney General.

2. Also under "Pleadings", the plaintiff should be required to indicate
in the Statement of Claim the defect in title which has led to the
quieting.

3. Clause 2(b)(ii) should conclude with this reference: "For cases in
which a claim by possession is being made, refer to Trites v Nova Scotia
(Attorney General) (1991), 105 N.S.R. (2d) 59 (NSSCTD)."

4. Paragraph 3(b) indicates that the application for an order for
directions should be commenced by an Originating Notice (Application
Inter Partes). This is not accurate, as the Originating Notice (Action)
has already been filed. The application is made through an
Interlocutory Notice (Application Inter Partes) pursuant to Rule 37.02.
A similar reference in paragraph 3(d)(i) should be amended as well.

5. Paragraph 7 of the PM should end with the words "...Registrar of
Deeds", as the Land Titles Act has been repealed. (A. Parker, N.S. Dept.
of Justice)

 

As of January 19, 2006

Re: Rules Generally, Class Proceedings
Suggestion: Provide a Class Proceedings Rule mindful of the Barristers'
Society's recommended legislation. (R. Wagner, D. Tupper, Q.C.)

 

As of January 10, 2006

Re: Discovery & Disclosure Working Committee Report
Suggestion: Discovery examinations should not be limited to the parties. The Working Committee Proposal will create far more delay, expense, and protracted litigation than under the current Rules, and will invite the return of “trial by ambush” and lead to lengthier cross-examination of non-party witnesses at trial. Evidence that the current discovery rules are subject to abuse is limited and does not justify the significant changes being proposed by the Working Committee. (R.K. Dickson, for Patterson Palmer)

Suggestion: If there is a need to correct perceived abuses relating to non-party discoveries, then an alternate Rule amendment should be implemented whereby a party who believes that the discovery process is being abused may apply on an Appearance Day to the court for appropriate restrictions or limitations. In the alternative, the examination of non-parties could be permitted, but with the number of witnesses limited to a certain amount, beyond which leave must be obtained. Moreover, any proposed Rule change should confirm that the parties can by consent agree to undertake discovery examination of a non-party. (R.K. Dickson, for Patterson Palmer)

Suggestion: The discovery of experts should be retained. Discovery of experts is often the most critical part of any pre-trial fact investigation. The opportunity for first-hand discovery of experts provides crucial assistance in assessing not only the credibility of the expert, but also the merits of the claim. Expert discoveries often encourage or promote early settlement. (R.K. Dickson, for Patterson Palmer)

Suggestion: If there is a concern about expert discovery examinations being abused, then the Rules could simply confirm that in an instance of perceived abuse, a party could apply to court for appropriate directions or sanctions. If there is a concern about expert discovery examinations causing delays for scheduling a matter for trial, then the Rules could stipulate that all such examinations must be completed 60 days before trial and if not, then special circumstances must be established in order to obtain court leave to undertake the discovery of an expert within the 60 days prior to trial. (R.K. Dickson, for Patterson Palmer)

Suggestion: Perceived abuses involving the discovery of experts could be eliminated through Rule changes which provide for significant cost consequences in the event that a delay of trial is sought because of the fault of a party in either completing expert discovery or impeding its completion. In addition, a heavy burden could be placed on a party who intends to postpone trial because of delay in completing expert discovery. (R.K. Dickson, for Patterson Palmer)

Suggestion: The requirement to use an affidavit of documents, as opposed to a list, will increase the cost of litigation for parties by requiring increased consultation between counsel and the client in relation to the affidavit’s preparation; in instances where counsel and the client are in separate places, the increase in fees and disbursements will be significant. In any instance where there are concerns respecting the adequacy or completeness of document disclosure, the existing Rules provide a party with appropriate recourse. (R.K. Dickson, for Patterson Palmer)

Suggestion: There is no advantage to an affidavit of documents over a list of documents, and in fact, using an affidavit of documents can be cumbersome, because it requires the signature of the client. In situations where an insured’s interest is represented through an insurer, it makes little or no sense to require the party named in the action to sign an affidavit containing documentation over which that person has no control or knowledge. (R.K. Dickson, for Patterson Palmer)

Re: Smaller Claims Working Committee Report
Suggestion: The proposed process and cost consequences of making a wrong prediction of the value of a claim is unfair and overly restrictive. Such a proposed system will only work where both parties agree to the process with all its associated restrictions. (R.K. Dickson, for Patterson Palmer)

Suggestion: In most cases, there is no connection between the size of the claim and the importance of the issues to the parties or the complexity of the evidence. One should not assume that the larger the claim, the greater should be the entitlement to a full and fair trial of the issues. (R.K. Dickson, for Patterson Palmer)

Suggestion: Mandatory settlement offers are not conducive to the kind of meaningful negotiations required to lead to a settlement. (R.K. Dickson, for Patterson Palmer)

Suggestion: The proposed time limitations for examination of witnesses are restrictive and arbitrary and do not recognize the inherent reality of the litigation process, where it is often the demeanor and attitude of a witness that dictates the time required to fully explore legal issues. The inherent jurisdiction of a trial court to control the process should be more than sufficient to deal with any abuses that might occur. (R.K. Dickson, for Patterson Palmer)

Suggestion: A more appropriate Rules revision would be to make available a “smaller claims” process, and to require a party wishing to apply to court if he or she wishes to use it. This would permit all parties an opportunity to make submissions on the issue, and criteria for process selection would be objective. (R.K. Dickson, for Patterson Palmer)

As of January 9, 2006

Re: Discovery & Disclosure Working Committee Report
Suggestion: Although discovery examinations may involve considerable time and expense, in itself this does not indicate a problem; rather, it may indicate the Rules are working well. Pre-trial litigation procedures are not designed solely for the purpose of ultimately having a dispute adjudicated at trial. The majority of existing actions are resolved through pre-trial settlements. The objective of the pre-trial process is to sift out the cases that do not require a trial. Pre-trial procedures must give counsel practical, workable tools that permit the parties to come to a realistic appreciation of the merits of both their position and that of their adversary and to reach their own settlement. The fact that the vast majority of claims are resolved is evidence that the system is achieving its purpose. Discovery examinations, coupled with effective document production, are the most effective way of finding and testing all the relevant evidence. It is during or following discovery that a majority of settlements occur. It should not be surprising that the discovery process takes time and expense, but this is worthwhile. (J.Merrick, Q.C.)

Re: Evidence Working Committee Report
Suggestion: Expert opinions have an aura of credibility, are often a key part of a claim, and can determine the result. They need to be tested and challenged, which can only be done effectively by oral questioning. The Working Committee proposal involving the discovery of experts will have the effect of transferring to the trial the opportunity to test much of the evidence by oral questioning. (J. Merrick, Q.C.)

Re: Discovery and Disclosure Working Committee Report & Evidence Working Committee Report
Suggestion: Changes can be made to correct occasional instances of misuse of the Rules without impairing counsels’ ability to perform their role in the judicial process. A prima facie time limit, such as 5 hours, could be imposed on counsel’s ability to discover any witness (including experts). If the evidence of a witness is truly lengthy or complex, then counsel could agree to an extension or application could be made for an extension of time. The existing provision permitting a party to apply to the court to strike a discovery notice should remain and would give the court the ability to curtail requests for discovery witnesses who did not have any apparent relevant evidence to provide. (J. Merrick, Q.C.)

Re: Discovery & Disclosure Working Committee Report
Suggestion: Substantial revision of the discovery rules, as proposed in the Working Committee Report, is not required. There is no widespread problem of abuse of the discovery process, and the Court already has the power to supervise discovery. (T. A. Barry, Q.C., for Stewart McKelvey Stirling Scales)

Suggestion: The current rules encourage full disclosure, promote settlement, eliminate surprise, and avoid trial by ambush. The Working Committee proposals will result in applications for additional discovery, thereby increasing costs and delays, and may lead to such strategies as adding more parties to litigation. (T. A. Barry, Q.C., for Stewart McKelvey Stirling Scales)

Re: Smaller Claims Working Committee Report
Suggestion: Although a separate procedure for claims under $100,000 is a good idea, it is premature to require a plaintiff to commit to one track (simple or complex) at the time pleadings are drafted. The full extent or weakness of a claim may not be known by either side prior to the exchange of documents, holding of discovery examinations and receipt of experts’ reports. Rather than making the only opportunity to switch claim tracks through leave of the court, with an applicant having to demonstrate “special circumstances related to the complexity of the case,” the date assignment conference judge should have the discretion to decide whether the plaintiff may change tracks or either party may undertake additional discoveries. (P. L. Walter, for Waterbury Newton)

Re: Discovery and Disclosure Working Committee Report & Evidence Working Committee Working Report
Suggestion: In most cases, the discovery rule works well, encouraging settlement and the early resolution of cases. Discovery in Nova Scotia costs no more than elsewhere in Canada, nor is our discovery system subject to widespread abuse. (H. L. Morrison, Q.C., for McInnes Cooper)

Suggestion: The Working Committee’s proposed change may lead to numerous applications to require witnesses to obtain more information or complete undertakings, will deprive counsel of the flexibility needed to conduct litigation in accordance with their clients’ best interests, and will have a pernicious effect on the openness that prevails in the province’s litigation culture. (H.L. Morrison, Q.C., for McInnes Cooper)

Suggestion: Non-party witnesses are frequently crucial to the case of one or both parties, and the ability to examine as of right a non-party witness contributes to the settlement process. The current rules allow the court to protect non-party witnesses from abuse. (H.L. Morrison, Q.C., for McInnes Cooper)

Suggestion: The opinion and reliability of experts is often the single biggest factor in determining if a matter should proceed to trial, and the ability to test an opponent’s expert or to watch your own expert being tested assists both counsel and clients in anticipating how a matter will unfold at trial, or if it should be settled. Expert reports, no matter how good they are, do not allow for any assessment of how effective the expert will be at trial or how likely his or her opinion will be accepted by the court. (H.L. Morrison, Q.C., for McInnes Cooper)

Suggestion: Proposed new discovery rule.

1. At any time after the close of pleadings, any party to an action may apply to the Court for such directions as may be given as to the procedure to govern the future course of the action as appear best adapted to secure the just, expeditious and economical disposal thereof.

2. An application under this Rule may be heard by conference call or at an Appearance Day.

3. On a hearing of an application under this Rule the court may

(a) Control the nature and extent of a party’s obligations under Rule 20;
(b) Control the discovery examinations of persons who are not parties to the action by restricting or disallowing the examinations of any person (including an expert witness), determining the length of any discovery examination, and fixing a schedule for the completion of any discovery examination;
(c) Control the number of expert witnesses who may give evidence at the trial;
(d) Require the service of lists of intended witnesses and documents intended to be introduced into evidence; and
(e) Require the appointment of a judge to monitor and further control the procedures in the action.

4. In an application under this Rule the Court shall consider all factors relevant to the just, speedy and economical determination of the action including

(a) The need to preserve reasonable access to justice;
(b) The need to ensure that a party’s right to a fair trial is not unduly restricted;
(c) Whether the discovery of documents or persons other than parties is necessary for disposing fairly of the proceeding;
(d) The financial value of the proceeding;
(e) The nature of the remedy sought;
(f) The likely complexity of the facts, law or evidence;
(g) The number of parties or likely parties;
(h) The amount and nature of oral and documentary evidence that may be required;
(i) The circumstances of the parties;
(j) The need to have the matter proceed without undue delay, and
(k) The impact of any examination on a non-party witness
(l) The nature of any expert opinion being offered and the proposed expert’s report.

(H.L. Morrison, Q.C., for McInnes Cooper)

 

As of December 9, 2005

Re: Discovery & Disclosure Working Committee Report
Suggestion: The Rules should not be amended to restrict discovery
examinations to parties. Non-party witness examination is a reliable and
cost-effective tool which often promotes not only resolution of
liability issues, but also agreement with respect to damages. (D.W.
Ingersoll, for Cox Hanson O'Reilly Matheson)

Suggestion: Rather than contemplating an express limit on the scope of
discovery, the new Rules could include a provision whereby one could
apply to limit or terminate non-party discovery if the discovery process
was being abused. (D.W. Ingersoll, for Cox Hanson O'Reilly Matheson)

Re: Evidence Working Committee Report
Suggestion: As the discovery of an expert witness enables litigants to
understand the expert's opinion and demeanour, both of which may be
significant considerations in determining whether liability should be
admitted or damages negotiated, there should be no restriction on the
current ability to undertake discovery examination of experts as of
right. (D.W. Ingersoll, for Cox Hanson O'Reilly Matheson).

Suggestion: The proposed time frame of 120 days prior to trial for the
production of expert's reports provides the parties insufficient time in
which parties to respond and to ensure the attendance of an expert at
discovery. (D.W. Ingersoll, for Cox Hanson O'Reilly Matheson).

Re: Smaller Claims Working Committee Report
Suggestion: The proposed $100,000 limit is too high and would apply to the majority
of cases litigated in Nova Scotia. (D.W. Ingersoll, for Cox Hanson O'Reilly Matheson)

Suggestion: Simply because a claim involves less than $100,000 does not mean that
it is straightforward in terms of liability or damages assessment.

Suggestion: The 5-hour time limit on discovery could lead to abuse by certain
witnesses. (D.W. Ingersoll, for Cox Hanson O'Reilly Matheson)

Suggestion: Having to divide the 5-hour discovery time limit among multiple
plaintiffs or defendants may lead to injustice, if there is inadequate
time to complete questioning of another party. (D.W. Ingersoll, for Cox Hanson O'Reilly Matheson)

Suggestion: Imposing costs on a party for failing to choose the smaller claims
procedure where the ultimate award is less than $100,000 is too onerous
and could raise questions as to who, client or lawyer, should bear those
costs. (D.W. Ingersoll, for Cox Hanson O'Reilly Matheson)

Suggestion: The Date Assignment Conference judge may not have sufficient knowledge
of the case to assign time for witness examinations in chief or cross.
(D.W. Ingersoll, for Cox Hanson O'Reilly Matheson)

Rules, Generally
Suggestion: The new Rules should incorporate gender neutral language.
(M.M. Kelly).

As of December 1, 2005

Re: Smaller Claims Working Committee Report
Suggestion: Clarification is needed regarding what will be the "serious
cost consequences" of failing to follow the smaller claims procedure for
a claim which at the end of trial is found to involve less than
$100,000. (Eric Slone, John McKiggan, Jason Gavras, & Ray Wagner)

Re: Discovery & Disclosure Working Committee Report
Suggestion: Discovery should be limited to a party and two witnesses;
This will overcome the need to proceed with "litigation by undertaking"
and the many chambers applications which are brought to enforce
compliance with undertakings. This will also overcome the need to amend
pleadings, in order to add numerous people, so they may be discovered
(such as in the instances of medical malpractice involving hospitals and
certain commercial cases. (Eric Slone, John McKiggan, Jason Gavras, &
Ray Wagner)

Re: Evidence Working Committee Report
Suggestion: the discovery of experts should only be permitted on issues
of liability. (Eric Slone, John McKiggan, Jason Gavras, & Ray Wagner)

 

As of November 15, 2005

Rule: 18, Examination for Discovery
Suggestion: The current system of open discovery and document disclosure should be retained, as it facilitates settlements and provides counsel with a better understanding of the other side's case. (R.H. Haynes, QC)

Rule: 18, Examination for Discovery
Suggestion: Instead of a Rule change which limits discovery, what is needed is a more flexible Rule, which provides an opportunity to apply to court to have limits placed on discovery when needed. (R.H. Haynes, QC)

Rules Generally:
Suggestion: There is a need to re-evaluate the high court fees which are charged for such aspects as filing documents and court appearances. (R.H. Haynes, QC)

 

As of November 1, 2005

Rule: 53, Execution orders
Suggestion: The Rules should be amended to facilitate the seizure under execution of bank account funds, even if they take the form wages received from the judgment debtor's employer (Commentator not identified).

Rule: 14.25, Abuse of Process
Suggestion: As in the United Kingdom, the Rules should include the possibility of civil restraint orders, to prevent "obsessed litigants" from wasting time and resources through repeated claims without merit
(M. F. Donovan, QC)

Rule: 18, Examination for Discovery
Suggestion: The "implied undertaking rule," which governs the use of information obtained during the discovery process, should be codified.
(S. McCrossin)

As of October 14, 2005

Rule: 28, Setting Down for Trial
Suggestion: The gap in time between the date of setting down for trial and the actual trial date needs to be improved. (H. MacIsaac)

Rule: 31.08, Filing of Experts' Reports
Suggestion: One should be able to file experts' reports two to three months prior to trial. (H. MacIsaac)

 

As of September 27, 2005

Rule: 18, Examination for Discovery
Suggestion: The discovery of experts should be retained. Experts often provide very important - if not the most important - evidence in a case, and the ability to have a prior discovery as a foundation is very important. (J. Gavras)

Rule: 18, Examination for Discovery
Suggestion: Litigants should be permitted to discover parties, two witnesses, and any experts. This would ensure a balance between getting necessary information relatively inexpensively and the need to protect parties from oppressive and excessive discoveries. (J. Gavras)

Rule: 20, Discovery and Inspection of Documents
Suggestion: Part 2 of the Schedule to Form 20.01 A (list of documents), which requires one to list the documents one objects to produce on the ground of privilege, with the applicable reasons, should be respected in practice. (J. Gavras)

Rule: 28, Notice of Trial
Suggestion: Taking the lead from Ontario practice, notices of trial should be meaningful: if a notice is filed with the consent of the opposing party, then there should be no further motions of any kind brought by either party, though the parties might agree between themselves that certain minor matters can be addressed; if a notice is filed without the consent of the opposing party, then the party filing the notice should be barred from further motions and the other party should have 60 days in which to complete preparations. (J. Gavras)

 

As of June 15, 2005

Rules Generally:
Suggestion: Nova Scotia should follow the Ontario example and create the position of chambers master, to deal exclusively with procedural issues.
Suggestion: The Rules must be both clear and enforced in a consistent manner. (J. Gavras)

Rule: 18, Examination for discovery
Suggestion: Express provisions relating to the use of raw psychological data (test protocols, therapy or interview notes, questionnaire returns, etc.) are needed, especially in the context of discovery (Nova Scotia Board of Examiners in Psychology).

Rule: 5.17, Proceeding by a Person Entitled to Legal Aid
Suggestion: In relation to an applicant’s requirement to file a legal opinion, the Rule should expressly empower the Court to order that a Legal Aid lawyer or a type of duty counsel prepare the legal opinion. (Commentator not identified).

Rule 14.24, Demand for Particulars
Suggestion: A party should have at least 30 days, rather than the current standard of “not less than 10 days,” in which to comply with a demand for particulars. (Commentator not identified).

Rule 18, Examination for Discovery
Suggestion: Unless otherwise ordered by the Court, an examination for discovery should take place not more than 60 days subsequent to the exchange of lists of documents and should be completed within 30 days. (Commentator not identified).

Rule: 20, Discovery and Inspection of Documents
Suggestion: Rather than the current 60 day period, a party should serve a list of documents within 30 days of the close of pleadings. (Commentator not identified).

Rule: 20, Discovery and Inspection of Documents
Suggestion: As in the U.K., each lawyer/party should be responsible to produce any document: which that party intends to rely on; which may damage one’s case; or which will or may help the opposing side. (Peter A. McInroy).

Rule: 20, Discovery and Inspection of Documents
Suggestion: Both a party and his or her lawyer should be responsible for confirming the completeness of that party’s list of documents. (Peter A. McInroy).

Rule 53.13, Examination in Aid of Execution
Suggestion: Replace the examination in aid of execution rule with: examination of judgment debtors and related parties as of right; examination of other persons with court leave; incorporation of the ordinary discovery rules where applicable; a contempt remedy for misconduct; a costs provisions; and application, if possible to Small Claims Court judgments. (M.J.D. Moir)

 

As of February 21, 2005

Rule: 5.17, Proceeding by a Person Entitled to Legal Aid
Suggestion: The appointment of counsel clause should be reinstated. (Commentator not identified)

Rule: 10, Service of Originating Notices and Other Documents
Suggestion: Similar to New Brunswick Rule 18.03, the Nova Scotia Rules should identify additional ways of effecting personal service without the need for a court order. (D.W. McNairn)

Rule: 14.25, Striking Out Pleadings
Suggestion: Rule 14.25 should be amended to include applications, where abuse of process is concerned. (T.L. Roane)

Rule: 18, Examination for Discovery
Suggestion: The scope of oral discovery should be limited to a party or its representative and experts to be called by parties who have submitted a report under the Rules. All other witnesses proposed to be examined should be listed and approved by the Court, preferably a case management judge, with cause shown as to why the witness should be examined by oral discovery rather than some other procedure (D.A. Caldwell, Q.C.)

Rule: 18, Examination for Discovery
Suggestion: The current standard for disclosure of documents is too broad. (D.A. Caldwell, Q.C.)

Rule: 18, Examination for Discovery
Suggestion: If a party wishes to discover non-parties or more than a particular number of non-parties then that party, through the form of an offer of proof, should be required to indicate specifically what it wishes to accomplish, with other parties having a right to object and seek a judicial determination. (Commentator not identified)

Rule: 18, Examination for Discovery
Suggestion: More of an emphasis should be placed on cross-examination during discovery, and a transcript of discovery proceedings should be provided to judge (and, if applicable, jurors), with counsel providing a summation after the transcript has been read. (Commentator not identified)

Rule: 20, Discovery and Inspection of Documents
Suggestion: Amended rules should take into account electronic data discovery (EDD), in particular its nature, scope, limits, and costs, as well as any sanctions for misuse or failure to comply with its requirements. (W.F. Meehan)

Rule: 20, Discovery and Inspection of Documents
Suggestion: Clarification of R.20 needed, as it pertains to document discovery and to payment of discovery costs. (Commentator not identified)

Rule: 20, Discovery and Inspection of Documents
Suggestion: If a party fails to disclose a document relating to any matter in question in a proceeding, which the party's solicitor could reasonably have discovered, that solicitor shall be responsible for any costs which reasonably result from the prior non-disclosure of the document. (C. Lienaux)

Suggestion: A solicitor who files a list of documents which does not include a document relating to any matter in question in a proceeding may be questioned by an opposing party to determine whether the undisclosed document could reasonably have been discovered. (C. Lienaux)

Rule: 31.08(5), Failing to Dispense with Attendance of Expert at Trial
Suggestion: This rule needs to be more strictly enforced, to dispense with an expert's attendance at trial where there is no substantial controversy about the expert's opinion. (D.A. Caldwell, Q.C.)

Rule: 31.08, Filing of Experts' Reports
Suggestion: Require the party filing a notice of trial to indicate that it has provided copies of its experts' reports to all other parties not less than 30 days prior to the filing of the notice of trial. (Commentator not identified)

Rule 31.10(2), Discount Rate Rule
Suggestion: The 2.5% discount rate rule should be reconsidered (B. Morton)

Rule: 37.08, Notice Period for Applications
Suggestion: The notice period for applications involving stays, summary judgment, or striking out should be extended significantly from the current 4 clear days requirement. (Commentator not identified)

Rule: 44, Change of Solicitor
Suggestion: If one's lawyer is not doing an adequate job, one should be able to have trial proceedings halted, in order to find a more suitable lawyer. (Commentator not identified)

Rule: 41A, Offers to Settle
Suggestion: A court official should be made aware of any settlement offers received, in order to be in a position to so advise a litigant when that party's lawyer fails to do so. (Commentator not identified)

Rule: 56, Judicial Review
Suggestion: One judicial review process, which would apply to consensual arbitrators as well as those whose authority is conferred by statute, should be codified at Rule 56. (T.L. Roane)

Rule: 56, Judicial Review
Suggestion: There should be a single procedure for judicial review matters within the jurisdiction of the Nova Scotia Supreme Court. (R.F.Larkin, E. Durnford, Q.C.)

Rule: 56, Judicial Review, Time for Making Application
Suggestion: Applications for judicial review should be brought within 30 days of the challenged decision being granted, with the court to have discretion to extend the time for appropriate reasons. (R.F.Larkin)

Rule: 56, Judicial Review, Time for Making Application
Suggestion: Rather than the current six-month time period, a judicial review application should be brought within 45 days, with the court having the power to extend in appropriate cases. (E. Durnford, Q.C.)

Rule: 56, Judicial Review
Suggestion: Judicial review should be commenced by a notice of application, to be served on all interested parties, including the tribunal and where appropriate, the Attorney General. The notice should include the following:

(a) names of applicant and respondent;

(b) the tribunal in respect of which the application is made;

(c) date and details of any order in respect of which judicial review is sought, as well as the date on which the order was first communicated to the applicant;

(d) precise statement of the relief sought;

(e) complete and concise statement of the grounds to be argued, including a reference to any statutory provision or rule to be relied on;

(f) list of the documentary evidence to be used at the hearing of the application;

(g) notice to the tribunal to produce the record no later than 30 days after service of the notice;

(h) indication whether a stay of the tribunal's decision or any other interim relief is sought;

(i) notice of an application to set down the matter for hearing and to obtain directions from a Chambers judge at the first appropriately designated Chambers day after the expiry of 30 days from the commencement of the application;

(j) notice to the respondent and other interested parties that they may file a notice of intention to appear and that failure to do so can result in an order without their submission being considered; and

(k) indication that though no affidavit is necessary to commence an application for judicial review, a copy of the decision should be attached to the notice. (R.F. Larkin, E. Durnford, Q.C.)

Rule: 56, Judicial Review
Suggestion: The tribunal required to produce the record should provide a copy to the court and to the parties within 30 days of having been served with the notice of application for judicial review. (R.F. Larkin, E. Durnford, Q.C.)

Rule 56, Judicial Review
Suggestion: The Rules should specify that if a responding tribunal does not comply with the requirement to provide a copy of the record within the suggested 30 day period, then the court as a potential consequence may order costs on a solicitor -and-client basis against the tribunal. (E. Durnford, Q.C.)

Rule 56, Judicial Review
Suggestion: At Chambers, either in person or by telephone, the court, in addition to setting down a hearing date, should deal with all preliminary matters, or at least provide directions for the handling of preliminary matters. (R.F. Larkin, E. Durnford, Q.C.)

Rule: 56, Judicial Review
Suggestion: An applicant should include with his or her written submission a bound, tabbed, and indexed application record. (R.F. Larkin, E. Durnford, Q.C.)

Rule: 56, Judicial Review
Suggestion: Much of the Ontario Judicial Review Procedure Act contains clear and suitable language that could be used as a model for revising the judicial review portion of the Rules. (E. Durnford, Q.C.)

Rule: 57, Matrimonial Causes
Suggestion: Rule 57, which applies to family proceedings outside Cape Breton and the Halifax Regional Municipality, should provide the same requirements that are found at Rule 70. (E. Jollimore)

Rule: 62.02, Commencement of Appeals
Suggestion: 30 days is not an adequate period for filing an appeal, especially if one is searching for a lawyer; 60 days would be better. (Commentator not identified)

Rule: 62.14, Appeal Books
Suggestion: The strict requirements for the filing of appeal documents (for example, required numbering, double-spacing, coil-bound) can prove difficult for lay people to satisfy. (Commentator not identified)

Rule: 63.18, Contingency Fee Agreements
Suggestion: Rule 63.18(2)(e) is ambiguous as it relates to how disbursements are to be deducted from an award subject to a contingency fee agreement. (F.G. DeMont)

Rule: 63.40, Powers of judge on appeal
Suggestion: In relation to taxation appeals, there may be an inconsistency between R.63.40 and s.32 of the Small Claims Court Act. (Commentator not identified)

Rules Generally, Identification of Witnesses
Suggestion: Parties should disclose which witnesses they intend to call at trial, and once having identified a witness, should actually call that person at trial, or provide the Court with a specific reason why that witness wasn't called. (Commentator not identified)

Rules Generally, Direction for Juries on Range of Damages
Suggestion: Juries should be given an acceptable range of damages after issues of liability have been determined. (Commentator not identified)

Rules Generally, Settlement Conferences
Suggestion: Requirements for settlement conferences in family proceedings (including: the need to file submissions in accordance with set deadlines; staggering of filing deadlines, to enable responses to another party's submission; providing current financial information before the filing of any settlement submissions; requiring settlement submissions to reflect the parties’ most recent position; allowing the parties to express a preference as to the judge; and requiring the judge to offer an opinion) should be made part of the Rules (E. Jollimore)

Rules Generally, Certificates of Lis Pendens
Suggestion: Rules Project should consider the possibility of a rule which governs certificates of lis pendens, including such aspects as registering and vacating them. (J. Keith)

Rules Generally, Use of Case Management Judge
Suggestion: The use of a case management judge should be encouraged except in the most minor cases. (D.A. Caldwell, Q.C.)

Rules Generally, Quality of Pleadings
Suggestion: Some attention should be paid to improving the quality of pleadings. (Commentator not identified)

Rules Generally, Costs
Suggestion: The Rules Project should consider the issue of costs and, in particular, whether costs should, as a matter of practice, be fixed and payable forthwith on interlocutory applications. (J. Keith)

Rules Generally, Self-represented Litigants
Suggestion: When a lay litigant is unrepresented, the court should be empowered to order the other party's counsel to ensure that the lay litigant remains in compliance with the Rules. (Commentator not identified)

Rules Generally, Application of Rules
Suggestion: Judges should apply the Rules as they are written. (Commentator not identified)

Rules Generally, Cross-References to Relevant Legislation
Suggestion: If a statute, such as the Proceedings Against the Crown Act, contains requirements which must be satisfied in order to pursue a civil action, then that legislation should be cross-referenced in the Civil Procedure Rules. A self-represented litigant relying on the Rules alone would not be aware of such requirements. (Commentator not identified)

Rules Generally, Cross-References to Relevant Legislation
Suggestion: The cost of filing actions can be a hardship for some self-represented litigants. The Costs and Fees Act can be helpful, but people may not know about the possibility of requesting a waiver of fees. The availability of the waiver provision should be made clear, such as by mentioning it in any court-provided materials relating to self-representation. (Commentator not identified)

 

As of 7 October 2004

Rule: 31, Evidence: Trial
The list of documents should become an exhibit where preparation of a document brochure would be merely duplicative. (Beryl MacDonald, QC)

Rule: 38.02, Contents of Affidavit
There should be greater flexibility in relation to the contents of affidavits including to allow for the incorporation by reference of averments in other affidavits and to allow for some submissions or suggestions for inferences to be drawn from the stated facts. (Beryl MacDonald, QC)

Rules Generally, Simplified Proceedings
There should be some type of simplified proceeding including list of witnesses and “will say” statements where discovery is not warranted. (Beryl MacDonald, QC)

Rule: 20, Discovery and Disclosure of Documents
The requirement for full disclosure should be express and penalization for failure should be certain. (C. Lienaux)

Rules Generally, Deadlines
There should be less flexibility in enforcement of time limits and greater certainty of sanctions when they are violated. (C. Lienaux)

Rules Generally, Summary Trials
There should be a system of summary trials where facts have been admitted by a party in a written or oral statement and a preference for making decisions sooner rather than putting them off for trial. (C. Lienaux)

Rule 35, Referees
Applications under s. 33, 35, 61, 64 or 90 of the Land Registration Act should be referred to lawyers or surveyors nominated by the Registrar General and the procedure should be similar to the system by which some divorce issues were referred to Family Court judges. (A. Chapman, QC)

Rule 33.01(A)(1), Interim Payments
The rule should be expanded to allow for an interim payment of damages where liability is in question. (Law Reform Commission)

 

As of 16 August 2004

Rule: 13, Summary Judgment
Suggestion: Crossclaims and defences to crossclaims ought to be subject to summary judgment. (J. Keith)

Rule: 17A, Crossclaim
Suggestion: These and defences to them ought to be subject to summary judgments. (J. Keith)

Rule: 28, Place and Mode of Trial and Setting Down
Suggestion: Trial dates should be fixed at close of pleadings. Probably, there would need to be restrictions on adjournments. (Commentator Not Identified)

Rule: 34, Trials with Jury
Suggestion: The trial judge should have express authority to order jurors to keep their deliberations secret. The language should suggest a presumption in favour of secrecy. (G. Moir)

Rule: 41, Payment Into and Out of Court
Suggestion: This should be amalgamated with rules on offers to settle. (G. Moir)
Suggestion: The acceptance of money paid into court by one of some joint tortfeasors ought not to release the others from any balance of the claim. (Law Reform Commission)

Rule: 41A, Offers to Settle
Suggestion: The acceptance of an offer made by one of some joint tortfeasors ought not to release the others from any balance of the claim. (Law Reform Commission)

Rule: 51.03(1), Drawing up of Order
Suggestion: Ought the rule provide for the order to be drawn by the judge where circumstances warrant? (Commentator Not Identified)

Rule: 55, Contempt Orders
Suggestion: This rule should be reviewed for compliance with the Charter and, probably, changed to remove the reverse onus (“show cause”) and to provide for adequate notice. (G. Moir)