TRIALS
RULE 52 TRIAL PROCEDURE
FAILURE TO ATTEND AT TRIAL
52.01 (1) Where an action is called for trial and all the parties fail to attend, the trial judge may strike the action off the trial list.
(2) Where an action is called for trial and a party fails to attend, the trial judge may,
(a) proceed with the trial in the absence of the party;
(b) where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim;
(c) where the defendant attends and the plaintiff fails to attend, dismiss the action and allow the defendant to prove the counterclaim, if any; or
(d) make such other order as is just.
(3) A judge may set aside or vary, on such terms as are just, a judgment obtained against a party who failed to attend at the trial.
ADJOURNMENT OF TRIAL
52.02 A judge may postpone or adjourn a trial to such time and place, and on such terms, as are just.
COURT APPOINTED EXPERTS
Appointment by judge
52.03 (1) On motion by a party or on his or her own initiative, a judge may, at any time, appoint one or more independent experts to inquire into and report on any question of fact or opinion relevant to an issue in the action.
(2) The expert shall be named by the judge and, where possible, shall be an expert agreed on by the parties.
Contents of Order Appointing Expert
(3) The order shall contain the instructions to be given to the expert and the judge may make such further orders as he or she considers necessary to enable the expert to carry out the instructions, including, on motion by a party, an order for,
(a) inspection of property under Rule 32; or
(b) the physical or mental examination of a party under section 118 of the Courts of Justice Act, 1984.
Remuneration of Expert
(4) The remuneration of an expert shall be fixed by the judge who appoints the expert, and shall include a fee for the expert's report and an appropriate sum for each day that attendance at the trial is required.
(5) The responsibility of the parties for payment of the remuneration of an expert shall be determined in the first instance by the judge.
(6) Where a motion by a party for the appointment of an expert is opposed, the judge may, as a condition of making the appointment, require the party seeking the appointment to give such security for the remuneration of the expert as is just.
Report
(7) The expert shall prepare a report and send it to the registrar and the registrar shall send a copy of the report to every party.
(8) The report shall be filed as evidence at the trial of the action unless the trial judge orders otherwise.
(9) The judge may direct the expert to make a further or supplementary report, and subrules (7) and (8) apply to that report.
Cross-examination of Expert
(10) Any party may cross-examine the expert at the trial.
Liability of Parties for Remuneration of Expert
(11) The liability of the parties for payment of the remuneration of the expert shall be determined by the trial judge at the end of the trial, and a party who has paid the expert in accordance with a determination under subrule (5), if not the party determined to be liable for payment under this subrule, shall be Indemnified by the party determined to be liable.
EXHIBITS
Marking and Numbering
52.04 (1) Exhibits shall be marked and numbered consecutively, and the registrar attending the trial shall make a list of the exhibits, giving a description of each exhibit, and stating by whom it was put in evidence and, where the person who produced it is not a party or his or her solicitor, the name of that person.
Return of Exhibits
(2) At any time following the trial judgment, on requisition by the solicitor or party who put an exhibit in evidence or the person who produced it and on the filing of the consent of all parties represented at the trial, the registrar may return the exhibit to the person making the requisition.
(3) Subject to subrule (2), the exhibits shall remain in the possession of the registrar or the registrar of the court to which an appeal is taken,
(a) until the time for an appeal has expired; or
(b) where an appeal has been taken, until it has been disposed of.
(4) On the expiration of the time for appeal or on the disposition of the appeal, the registrar on his or her own initiative shall return the exhibits to the respective solicitors or parties who put the exhibits in evidence at the trial.
VIEW BY JUDGE OR JURY
52.05 The judge or judge and jury by whom an action is being tried or the court before whom an appeal is being heard may, in the presence of the parties or their counsel, inspect any property concerning which any question arises in the action, or the place where the cause of action arose.
EXCLUSION OF WITNESSES
Order for Exclusion
52.06 (1) The trial judge may, at the request of any party, order that a witness be excluded from the courtroom until called to give evidence, subject to subrule (2).
Order not to Apply to Party or Witness Instructing Counsel
(2) An order under subrule (1) may not be made in respect of a party to the action or a witness whose presence is essential to instruct counsel for the party calling the witness, but the trial 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.
No Communication with Excluded Witnesses
(3) Where an order is made excluding a witness from the courtroom, there shall be no communication to the witness of any evidence given during his or her absence from the courtroom, except with leave of the trial judge, until after the witness has been called and has given evidence.
Exclusion of Persons Interfering with Trial
(4) Nothing in this rule prevents the trial judge from excluding from the courtroom any person who is interfering with the proper conduct of the trial.
ORDER OF PRESENTATION IN JURY TRIALS
52.07 (1) On the trial of an action with a jury, the order of presentation shall be regulated as follows, unless the trial judge directs otherwise:
1. The plaintiff may make an opening address and, subject to paragraph 2, shall then adduce evidence.
2. A defendant may, with leave of the trial judge, make an opening address immediately after the opening address of the plaintiff, and before the plaintiff adduces any evidence.
3. When the plaintiff's evidence is concluded, the defendant may make an opening address, unless he or she has already done so, and shall then adduce evidence.
4. When the defendant's evidence is concluded, the plaintiff may adduce any proper reply evidence and the defendant shall then make a closing address, followed by the closing address of the plaintiff.
5. Where a defendant adduces no evidence after the conclusion of the plaintiff's evidence, the plaintiff shall make a closing address, followed by the closing address of the defendant.
(2) Where the burden of proof in respect of all matters in issue in the action lies on the defendant, the trial judge may reverse the order of presentation.
(3) Where there are two or more defendants separately represented, the order of presentation shall be as directed by the trial judge.
(4) Where a party is represented by counsel, the right to address the jury shall be exercised by counsel.
DISAGREEMENT OF THE JURY
52.08 (1) Where the jury,
(a) disagrees;
(b) makes no finding on which judgment can be granted; or
(c) answers some but not all of the questions directed to it or gives conflicting answers, so that judgment cannot be granted on its findings,
the trial judge may direct that the action be retried with another jury at the same or any subsequent sitting, but where there is no evidence on which a judgment for the plaintiff could be based or where for any other reason the plaintiff is not entitled to judgment, the judge shall dismiss the action.
(2) Where the answers given by a jury are sufficient to entitle a party to judgment on some but not all of the claims in the action, the judge may grant judgment on the claims in respect of which the answers are sufficient, and subrule (1) applies to the remaining claims.
RECORDING JURY VERDICT
52.09 The verdict of a jury shall be endorsed on the trial record.
FAILURE TO PROVE A FACT OR DOCUMENT
52.10 Where, through accident, mistake or other cause, a party fails to prove some fact or document material to his or her case,
(a) the judge may proceed with the trial subject to proof of the fact or
document afterwards at such time and on such terms as the judge directs; or
(b) where the case is being tried by a jury, the judge may direct the jury to find a verdict as if the fact or document had been proved, and the verdict shall take effect on proof of the fact or document afterwards as directed, and, if it is not so proved, judgment shall be granted to the opposite party, unless the judge directs otherwise.
RULE 53 EVIDENCE AT TRIAL
EVIDENCE BY WITNESSES
Oral Evidence as General Rule
53.01 (1) Unless these rules provide otherwise, witnesses at the trial of an action shall be examined orally in court and the examination may consist of direct examination, cross-examination and re-examination.
Trial Judge to Exercise Control
(2) The trial 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 inquired into at the trial.
(3) The trial judge may at any time direct that a witness be recalled for further
examination.
Leading Questions on Direct Examination
(4) Where a witness appears unwilling or unable to give responsive answers, the trial judge may permit the party calling the witness to examine him or her by means of leading questions.
Interpreter
(5) Where a witness does not understand the language or languages in which the examination is to be conducted or is deaf or mute, a competent and independent interpreter shall, before the witness is called, take an oath or make an affirmation to interpret accurately the administration of the oath or affirmation to the witness, the questions put to the witness and his or her answers.
(6) Where an interpreter is required under subrule (5), the party calling the witness shall provide the interpreter, unless the interpretation is to be from English to French or from French to English and an interpreter is provided by the Ministry of the Attorney General.
EVIDENCE BY AFFIDAVIT
With Leave of Court
53.02 (1) Before or at the trial of an action, the court may make an order allowing the evidence of a witness or proof of a particular fact or document to be given by affidavit, unless an adverse party reasonably requires the attendance of the deponent at trial for cross-examination.
(2) Where an order is made under subrule (1) before the trial, it may be set aside or varied by the trial judge where it appears necessary to do so in the interest of justice. O. Reg. 560/84, r. 53.02(1,2).
(3) Revoked: O. Reg. 221/86, s. 1, par. 15.
EXPERT WITNESSES
53.03 (1) A party who intends to call an expert witness at trial shall, not less than 90 days before the commencement of the trial, serve on every other party to the action a report, signed by the expert, setting out his or her name, address and qualifications and the substance of his or her proposed testimony.
(2) A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the commencement of the trial, serve on every other party to the action a report, signed by the expert setting out his or her name, address and qualifications and the substance of his or her proposed testimony.
Sanction for Failure to Address Issue in Report or Supplementary Report
(3) An expert witness may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to that issue is set out in,
(a) a report served under this rule; or
(b) a supplementary report served on every other party to the action not less than 30 days before the commencement of the trial.
Extension or Abridgment of Time
(4) The time provided for service of a report or supplementary report
under this rule may be extended or abridged,
(a) by the judge or case management master at the pre-trial conference or at any conference under Rule 77; or
(b) by the court, on motion.
COMPELLING ATTENDANCE AT TRIAL
By Summons to Witness
53.04 (1) A party who requires the attendance of a person in Ontario as a witness at a trial may serve the person with a summons to witness (Form 53A) requiring him or her to attend the trial at the time and place stated in the summons, and the summons may also require the person to produce at the trial the documents or other things in his or her possession, control or power relating to the matters in question in the action that are specified in the summons.
Summons may be Issued in Blank
(2) On the request of a party or a solicitor and on payment of the prescribed fee, a registrar shall sign, seal and issue a blank summons to witness and the party or solicitor may complete the summons and insert the names of any number of witnesses.
Where Document may be Proved by Certified Copy
(3) No summons to witness for the production of an original record or document that may be proved by a certified copy shall be served without leave of the court.
Summons to be Served Personally
(4) A summons to witness shall be served on the witness personally and not by an alternative to personal service and, at the same time, attendance money calculated in accordance with Tariff A shall be paid or tendered to the witness.
(5) Service of a summons to witness and the payment or tender of attendance money may be proved by affidavit.
Summons in Effect until Attendance No Longer Required
(6) A summons to witness continues to have effect until the attendance of the witness is no longer required.
Sanctions for Failure to Obey Summons
(7) Where a witness whose evidence is material to an action is served with a summons to witness and the proper attendance money is paid or tendered to him or her, and the witness fails to attend at the trial or to remain in attendance in accordance with the requirements of the summons, the presiding judge may by a warrant for arrest (Form 53B) cause the witness to be apprehended anywhere within Ontario and forthwith brought before the court.
(8) On being apprehended, the witness may be detained in custody until his or her presence is no longer required, or 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.
INTERPROVINCIAL SUBPOENA
53.05 A summons to a witness outside Ontario to compel his or her attendance under the Interprovincial Subpoenas Act shall be in Form 53C.
COMPELLING ATTENDANCE OF WITNESS IN CUSTODY
53.06 The court may make an order (Form 53D) for attendance of a witness in custody whose evidence is material to an action, directing the officer having custody of a prisoner to produce him or her, on payment of the fee prescribed under the Administration of Justice Act, for an examination authorized by these rules or as a witness at a hearing.
CALLING ADVERSE PARTY AS WITNESS
Person to Whom the Rule Applies
53.07 (1) Subrules (2) to (7) apply in respect of the following persons:
1. an adverse party;
2. an officer, director, employee or sole proprietor of an adverse party; or
3. a partner of a partnership that is an adverse party.
Securing Attendance
(2) A party may secure the attendance of a person referred to in subrule (1) as a witness at trial,
(a) by serving the person with a summons to witness, or by serving on the adverse party or the solicitor for the adverse party, at least 10 days before the commencement of the trial, a notice of intention to call the person as a witness, and
(b) by paying or tendering attendance money calculated in accordance with Tariff A at the same time.
(3) If a person referred to in sub-rule (1) is in attendance at the trial, it is unnecessary to serve the person with a summons or to pay attendance money to call the person as a witness.
When Adverse Party may be Called
(4) A party may call a person referred to in subrule (1) as a witness unless,
(a) the person has already testified; or
(b) the adverse party or the adverse party's counsel undertakes to call the person as a witness.
Cross-examination
(5) A person referred to in subrule (1) may be cross-examined by the party who called him or her as a witness and by any other party who is adverse in interest to that person.
Re-examination
(6) After a cross-examination under sub-rule (5), the person may be re-examined by any party who is not entitled to cross-examine under that sub-rule.
Failure to Testify
(7) The court may grant judgment in favour of the party calling the witness, adjourn the trial or make such other order as is just where a person required to testify under this rule,
(a) refuses or neglects to attend at the trial or to remain in attendance at the trial;
(b) refuses to be sworn; or
(c) refuses to answer any proper question put to him or her or to produce any document or other thing that he or she is required to produce.
EVIDENCE ADMISSIBLE ONLY WITH LEAVE
53.08 (1) If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial.
(2) Subrule (1) applies with respect to the following provisions:
1. Subrule 30.08(1) (failure to disclose document).
2. Rule 30.09 (failure to abandon claim of privilege).
3. Rule 31.07 (refusal to disclose information on discovery).
4. Subrule 31.09(3) (failure to correct .answers on discovery).
5. Subrule 53.03(3) (failure to serve expert's report).
6. Sub rule 76.03(3) (failure to disclose witness).
CALCULATION OF AWARDS FOR FUTURE PECUNIARY DAMAGES
Discount Rate
53.09 (1) The discount rate to be used in determining the amount of an award in respect of future pecuniary damages, to the extent that it reflects the difference between estimated investment and price inflation rates, is,
(a) for the 15 year period that follows the start of the trial, the average of the value for the last Wednesday in each month of the real rate of interest on long-term Government of Canada real return bonds (Series V121808 formerly Series B113911), as published in the Bank of Canada Weekly Financial Statistics for the 12 months ending on August 31 in the year before the year in which the trial begins, less 1 per cent and rounded to the nearest 1/4 per cent; and
(b) for any later period covered by the award, 2.5 per cent per year.
Gross Up
(2) In calculating the amount to be included in the award to offset any liability for income tax on income from investment of the award, the court shall,
(a) assume that the entire award will be invested in fixed income securities; and
(b) determine the rate to be assumed for future inflation in accordance with the following formula:
“g” rounded to the nearest 1/4 per cent where,
g = ((1 + i)/(1 + d))–1
“i” is the average of the value for the last Wednesday in each month of the nominal rate of interest on long–term Government of Canada bonds (Series V121758, formerly Series B113867), as published in the Bank of Canada Weekly Financial Statistics, for the 12 months ending on August 31 in the year before the year in which the trial begins;
“d” is,
(a) for the 15–year period that follows the start of the trial, the average of the value for the last Wednesday in each month of the real rate of interest on long–term Government of Canada real return bonds (Series V121808, formerly Series B113911), as published in the Bank of Canada Weekly Financial Statistics for the 12 months ending on August 31 in the year before the year in which the trial begins, less 1 per cent, and
(b) for any later period covered by the award, 2.5 per cent per year
PREJUDGMENT INTEREST RATE FOR NON-PECUNIARY DAMAGES
53.10 The prejudgment interest rate on damages for non-pecuniary loss in an action for personal injury is 5 per cent per year.