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Trial Procedure Act of BC

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发表于 8/28/2017 20:32:35 | 显示全部楼层 |阅读模式
Part 12 — Trial
Rule 12-1 — How to SetTrial for Hearing
Application
(1)Thisrule applies to
(a) an action, and
(b) a proceeding that is transferred to the trial list under Rule 22-1 (7) (d).
Notice of trial
(2)To set a proceeding for trial, a party must file a notice of trial in Form 40.
[Special rules apply tofast track actions in relation to the setting of trials — see Rule 15-1 (13)and (14).]
Content of notice of  trial
(3)A notice of trial filed under subrule (2) must include the date set out in a case plan order for the trial or, if no trial date is set out in a case plan order,the trial date obtained from the registry.
[en.B.C. Reg. 119/2010, Sch. A, s. 25.]
Registry
(4)Thenotice of trial must be filed in
(a) the registry where the notice of civil claim was filedunless paragraph (b) applies, or
(b) the registry to which the proceeding has been transferred ifthe proceeding has been transferred for all purposes to another registry.
Place of trial
(5)Theplace of trial must be the place named in the notice of civil claim, but thecourt may order that the place of trial be changed or that the trial be heardpartly in one place and partly in another.
When notice of trial mustbe served
(6)Promptlyafter filing a notice of trial, the filing party must serve a copy of the filednotice of trial on all parties of record.
[am.B.C. Reg. 65/2013, Sch. A, s. 1.]
If trial dateunacceptable
(7)If aparty on whom a notice of trial is served under subrule (6) objects to thetrial date set out in that notice of trial, the party must, within 21 daysafter service of the notice of trial,
(a) request a case planning conference, or
(b) make an application to the court to have the trialrescheduled.
Time of trial
(8)Thetrial is to be heard on the day appointed by the notice of trial or so soonafter that day as may be convenient to the court.
Court may make ordersrespecting trial dates
(9)Thecourt may
(a) order the adjournment of a trial,
(b) fix the date of trial of a proceeding,
(c) fix the date of trial of an issue in a proceeding, or
(d) order that a trial take precedence over another trial.
Duty to inform registry
(10)Eachparty to a proceeding that has been set for trial must advise the registrywithout delay
(a) if the proceeding settles, and
(b) of any circumstances affecting the estimated length of thetrial.
Rule 12-2 — Trial Management Conference
Date for trial managementconference
(1)Unlessthe court otherwise orders, a trial management conference must take place atleast 28 days before the scheduled trial date, at a time and place to be fixedby a registrar.
Trial managementconference must be conducted by judge
(2)Atrial management conference must be conducted by a judge or master and, ifreasonably practicable, is to be conducted by the judge who will preside at thetrial.
[am.B.C. Reg. 58/2012, Sch. A, s. 1.]
Trial brief required
(3)Unlessthe court otherwise orders, the plaintiff must, at least 28 days before thedate set for the trial management conference,
(a) file a trial brief in Form 41, and
(b) serve a copy of the filed trial brief on all other partiesof record.
[en.B.C. Reg. 3/2016, s. 1 (a).]
Trial brief — otherparties of record
(3.1)Unlessthe court otherwise orders, each party of record, other than the plaintiff,must, no later than 21 days before the date set for the trial managementconference,
(a) file a trial brief in Form 41, and
(b) serve a copy of the filed trial brief on all other partiesof record.
[en.B.C. Reg. 3/2016, s. 1 (a).]
Failure to serve trialbrief
(3.2)Ifa party of record has failed to comply with subrule (3) (b) or (3.1) (b), thejudge or master at a trial management conference may order costs against thatparty.
[en.B.C. Reg. 3/2016, s. 1 (a).]
Trial removed from triallist
(3.3)Unlessthe court otherwise orders, a trial must be removed from the trial list if notrial brief has been filed under subrule (3) or (3.1).
[en.B.C. Reg. 3/2016, s. 1 (a).]
Application for consentorder
(3.4)Despitesubrule (1), the parties of record may, no later than 14 days before the dateset for a trial management conference, apply under Rule 8-3 (1) for an order byconsent dispensing with the need for a trial management conference.
[en.B.C. Reg. 3/2016, s. 1 (a).]
Application materials
(3.5)Inaddition to the materials required under Rule 8-3 (1), an application referredto in subrule (3.4) of this rule must include a copy of each filed trial brief.
[en.B.C. Reg. 3/2016, s. 1 (a), as am. by B.C. Reg. 162/2016.]
Consent order
(3.6)Ajudge or master may make the order referred to in subrule (3.4) if satisfiedthat the matter is ready to proceed to trial and can be completed within thetime reserved for it.
[en.B.C. Reg. 3/2016, s. 1 (a).]
Who must attend the trialmanagement conference
(4)Unlessthe court otherwise orders, the following persons must attend a trialmanagement conference in person:
(a) each lawyer representing a party of record;
(b) subject to the exception set out in subrule (5), each partyof record.
Absent parties must beavailable and accessible by telephone or other means
(5)Aparty of record need not attend the trial management conference in person ifthe party is represented by a lawyer and one of the following is readilyavailable for consultation during the trial management conference, either inperson or by telephone:
(a) the party;
(b) an individual who
(i) has full authority to make decisions for that partyconcerning the action, or
(ii) has ready access to a person who has, or to a group ofpersons who collectively have, full authority to make decisions for that partyconcerning the action.
Application must be madeby requisition
(6)Anapplication under subrule (4) for an order respecting the manner in which a personis to attend a trial management conference or exempting a person from attendinga trial management conference
(a) must be made by requisition in Form 17, and
(b) must be supported by a letter signed by the person or theperson's lawyer setting out the reasons why the order is sought.
(c) Repealed. [B.C. Reg. 3/2016, s. 1 (b).]
[am.B.C. Reg. 3/2016, s. 1 (b).]
Non-attendance at trialmanagement conference
(7)If aperson who, under subrule (4), is required to attend a trial managementconference fails to attend at that trial management conference, the trialmanagement conference judge or master may do one or more of the following:
(a) proceed in the absence of the person who failed to attend;
(b) adjourn the trial management conference;
(c) order that the person, or the party on whose behalf theperson was to attend, pay costs to one or more other parties.
[am.B.C. Reg. 58/2012, Sch. A, s. 1.]
Proceedings must berecorded
(8)Proceedingsat a trial management conference must be recorded, but no part of thatrecording may be made available to or used by any person without court order.
Orders at a trialmanagement conference
(9)Thejudge or master presiding at a trial management conference may consider thefollowing and, without limiting the ability of the trial judge or master tomake other orders at trial, may, whether or not on the application of a party,make orders respecting one or more of the following:
(a) a plan for how the trial should be conducted;
(b) whether or not the trial or any part of it is to be heardwithout a jury, on any of the grounds set out in Rule 12-6 (5);
(c) amendment of pleadings within a fixed time;
(d) admissions of fact at trial;
(e) admission of documents at trial, including
(i) agreements as to the purposes for which documents may beadmitted, and
(ii) the preparation of common books of documents and documentagreements;
(f) imposing time limits for the direct examination orcross-examination of witnesses, opening statements and final submissions;
(g) directing that a party provide a summary of the evidencethat the party expects one or more of the party's witnesses will give at trial;
(h) directing that evidence of witnesses be presented at trialby way of affidavit;
(i) respecting experts, including, without limitation, ordersthat the parties' experts must, before the service of their respective reports,confer to determine and report on those matters on which they agree and thosematters on which they do not agree;
(j) directing that the parties present opening statements andfinal submissions in writing;
(k) respecting when and how an issue between the party filing athird party notice and the third party may be tried;
(l) adjournment of the trial;
(m) directing that the number of days reserved for the trial bechanged;
(n) directing the parties to attend a settlement conference;
(o) adjourning the trial management conference;
(p) directing the parties to attend a further trial managementconference at a specified date and time;
(q) any other matter that may assist in making the trial moreefficient;
(r) any other matter that may aid in the resolution of theproceeding;
(s) any orders the judge or master considers will further theobject of these Supreme Court Civil Rules.
[am.B.C. Reg. 58/2012, Sch. A, s. 1.]
When approval in writingby lawyer not required
(10)Withoutlimiting Rule 13-1 (2), if an order under subrule (9) of this rule is signed orinitialled by the trial management conference judge or master, that order neednot be approved in writing by a lawyer or by a party.
[am.B.C. Reg. 58/2012, Sch. A, s. 1.]
Prohibited orders
(11)Atrial management conference judge or master must not, at a trial managementconference,
(a) hear any application for which affidavit evidence isrequired, or
(b) make an order for final judgment, except by consent.
[am.B.C. Reg. 58/2012, Sch. A, s. 1.]
Rule 12-3 — Trial Record
Trial record for thecourt
(1)Theparty who files a notice of trial must file a trial record for the court, whichtrial record must contain
(a) the pleadings,
(b) particulars served under a demand, together with the demandmade,
(c) the case plan order, if any,
(d) any order relating to the conduct of the trial, and
(e) any document required by a registrar under subrule (2).
[am.B.C. Reg. 119/2010, Sch. A, s. 26.]
Powers of registrarrespecting trial records
(2)Aregistrar may direct inclusion in the trial record of any document theregistrar thinks necessary or may reject a trial record that, in theregistrar's opinion,
(a) does not contain all the documents required under subrule(1),
(b) contains a document that is not a document required undersubrule (1), or
(c) is illegible.
Filing and service oftrial record
(3)Theparty referred to in subrule (1) must
(a) file the trial record at least 14 days before but not morethan 28 days before the scheduled trial date, and
(b) promptly after filing, serve a copy of the filed trialrecord on the other parties of record.
Amended trial record
(4)Ifthe whole or any part of a pleading is amended after service of the trialrecord, the party who filed the notice of trial must
(a) amend the trial record by substituting the amended pleadingfor the version of the pleading that had previously been included, and
(b) at least one day before the trial,
(i) file the amended trial record, and
(ii) serve a copy on all parties of record.
Direction as to trialrecord
(5)Ifthe court directs that a proceeding be set down for trial, it may also directone of the parties to prepare, file and serve a trial record.
Rule 12-4 — TrialCertificate
Trial certificate
(1)Eachparty of record must file a trial certificate in Form 42 in the registry wherethe trial is to be held.
When trial certificatemust be filed
(2)Atrial certificate must be filed at least 14 days before but not more than 28days before the scheduled trial date.
What trial certificatemust contain
(3)Atrial certificate must contain the following:
(a) a statement that the party filing the trial certificate willbe ready to proceed on the scheduled trial date;
(b) a statement certifying that the party filing the trialcertificate has completed all examinations for discovery that the party intendsto conduct;
(c) the party's current estimate of the length of the trial;
(d) a statement that a trial management conference has beenconducted in the action.
[am.B.C. Reg. 119/2010, Sch. A, s. 27.]
Service
(4)Promptlyafter filing a trial certificate, the filing party must serve a copy of thefiled trial certificate on all parties of record.
Failure to file
(5)Unlessthe court otherwise orders, if no party of record files a trial certificate,the trial must be removed from the trial list.
[am.B.C. Reg. 95/2011, Sch. A, s. 4.]
Applications prohibited
(6)Aparty who fails to file a trial certificate under subrule (1) is not, withoutleave of the court, entitled to make further applications.
Rule 12-5 — Evidence andProcedure at Trial
Application
(1)Thisrule does not apply to summary trials under Rule 9-7, except as provided inthat rule.
Proof of Facts and Documents
Court may vary order
(2)Anorder made under this rule concerning the mode of proving a fact or document orof tendering evidence may be revoked or varied by a subsequent order made at orbefore the trial.
Failure to prove amaterial fact
(3)If aparty omits or fails to prove some fact material to the party's case, the courtmay proceed with the trial, subject to that fact being afterwards proved as thecourt directs, and,
(a) if the case is being tried by a jury, the court may directthe jury to find a verdict as if that fact had been proved, and
(b) unless the court otherwise orders, judgment must be enteredaccording to whether or not that fact is or is not afterwards proved asdirected.
No Evidence and Insufficient Evidence Applications
No evidence application
(4)Atthe close of the plaintiff's case, the defendant may apply to have the actiondismissed on the ground that there is no evidence to support the plaintiff'scase.
Defendant need not electwhether to call evidence
(5)Adefendant is entitled to apply under subrule (4) without being called on toelect whether or not to call evidence.
Insufficient evidenceapplication
(6)Atthe close of the plaintiff's case, the defendant may apply to have the actiondismissed on the ground that the evidence is insufficient to make out theplaintiff's case.
Defendant must elect notto call evidence
(7)Unlessthe court otherwise orders, an application under subrule (6) may be made onlyafter the defendant has elected not to call evidence.
Documentary and Other Exhibits
Notice to produce
(8)Byserving a notice in Form 43 at least 2 days before a trial, a party of recordmay require any other party of record to bring to the trial
(a) any document listed by the other party in a list ofdocuments prepared under Rule 7-1, and
(b) any physical object in the other party's possession orcontrol that the party serving the notice contemplates tendering at the trialas an exhibit, but the notice must identify the object.
Numbering exhibit pages
(9)If acopy of a document is tendered as an exhibit,
(a) each page of the exhibit must be numbered sequentially,beginning with the first page of the exhibit and ending with the last page ofthe exhibit, or
(b) if the exhibit is divided by tabs,
(i) each page of the exhibit that is not behind a tab must benumbered sequentially, beginning with the first of those pages and ending withthe last of those pages, and
(ii) each page of the exhibit that is behind a tab must benumbered sequentially, beginning with the first page behind the tab and endingwith the last page behind the tab.
Opportunity to inspectexhibit
(10)Unlessthe court otherwise orders or the parties of record otherwise agree, no plan,photograph or object may be received in evidence at the trial of an actionunless, at least 7 days before the start of the trial, the parties of recordhave been given an opportunity to inspect it.
Registrar to take chargeof exhibits
(11)Aregistrar must
(a) take charge of each document or object put in as an exhibit,
(b) mark or label each exhibit with a number, and
(c) make a list of the exhibits, giving a short description ofeach and stating by whom it was tendered.
Return of exhibits
(12)Subjectto subrule (13), after the time for appeal from judgment has expired or afterthe disposition of an appeal, new trial or further appeal, whichever is latest,a registrar may return an exhibit to the party who tendered it.
Other returns
(13)Theparties of record may agree or the court may order that an exhibit be returnedat an earlier time or to a person other than the party who tendered it.
Disposal of exhibitsafter final disposition
(14)Aregistrar may, with the approval of the Deputy Attorney General, destroy orotherwise dispose of an exhibit tendered in evidence in a proceeding if thereturn of the exhibit has not been applied for within one year after the laterof
(a) the date of the judgment at trial in, or any other finaldisposition of, the proceeding, and
(b) the date of the judgment on, or any other final dispositionof, any appeal, new trial or further appeal.
Notice respectingdisposal of exhibits before final disposition
(15)Ifan exhibit is tendered in evidence in a proceeding and nothing is filed in thatproceeding for a period of 2 years, a registrar may notify the parties ofrecord that the registrar intends to destroy or otherwise dispose of theexhibit unless, within 30 days after the date of the notice,
(a) an application is made for the return of the exhibit, or
(b) a notice of intention to proceed in Form 44 is served on allparties of record and a copy of the notice and proof of its service is filed inthe proceeding.
Disposal of exhibitsbefore final disposition
(16)Aftergiving notice of the intended destruction or disposition of an exhibit undersubrule (15), a registrar may,
(a) if, within 30 days after the date of the notice, a personapplies to the registrar for a return of the exhibit, return the exhibit to theparty who tendered it or to such other person as the parties of record mayagree or the court may order, or
(b) if no such application is made and if none of the partiescomply with subrule (15) (b) within 30 days after the date of the notice,destroy or otherwise dispose of the exhibit with the approval of the DeputyAttorney General.
If exhibit disposed of
(17)Ifan exhibit is disposed of under subrule (14) or (16) (b),
(a) any money received as a result of the disposition must bepaid to the Minister of Finance, and
(b) the exhibit list must be endorsed to indicate the date andmethod of disposition and the amount of any money recovered.
If exhibit destroyed
(18)Ifan exhibit is destroyed under subrule (14) or (16) (b), the exhibit list mustbe endorsed to indicate the date and method of destruction.
Adverse Witnesses
"Adverse party"defined
(19)Forthe purpose of subrules (20) to (23), "adverse party" meansa party who is adverse in interest.
Adverse witness
(20)Subrules(21) to (24) apply if a party wishes to call as a witness at the trial
(a) an adverse party, or
(b) a person who, at the time the notice referred to in subrule(21) is served, is a director, officer, partner, employee or agent of anadverse party.
Notice to call adversewitness
(21)Ifa party wishes to call as a witness a person referred to in subrule (20) (a) or(b), the party must serve on the adverse party a notice in Form 45 together withproper witness fees at least 7 days before the date on which the attendance ofthe intended witness is required.
Exceptions
(22)Despitesubrule (21), a party may
(a) call as a witness, without payment of witness fees orprevious notice, a person referred to in subrule (20) (a) or (b) if the personcalled is in attendance at the trial, or
(b) subpoena a person referred to in subrule (20) (a) or (b).
Application to set noticeaside
(23)Thecourt may set aside a notice served under subrule (21) on the grounds that
(a) the adverse party is unable to procure the attendance of theperson named in the notice,
(b) the evidence of the person is unnecessary,
(c) it would work a hardship on the person or the adverse partyto require the person to attend the trial, or
(d) the person named in the notice is not a person referred toin subrule (20) (a) or (b).
Court may make order
(24)Onan application under subrule (23), the court may make any order it considerswill further the object of these Supreme Court Civil Rules, including, withoutlimitation, an order adjourning the trial.
Refusal to comply withnotice
(25)Ifa person called as a witness in accordance with subrule (21) or (22) refuses orneglects to attend at the trial, to be sworn or to affirm, to answer a properquestion put to the person or to produce a document that the person is requiredto produce, the court may do one or more of the following:
(a) grant judgment in favour of the party who called thewitness;
(b) adjourn the trial;
(c) make an order as to costs;
(d) make any other order it considers will further the object ofthese Supreme Court Civil Rules.
Adverse party as witnessmay be cross-examined
(26)If,in accordance with subrule (21) or (22), a party calls as a witness a personreferred to in subrule (20) (a) or (b), the following apply:
(a) the party calling the witness is entitled to cross-examinethe witness generally on one or more issues;
(b) the adverse party must not cross-examine the witness exceptto obtain an explanation of matters brought out in the examination-in-chief;
(c) other parties may cross-examine the witness generally on oneor more issues, as the court may direct;
(d) the party calling the witness must not re-examine thewitness except in relation to new matters brought out in cross-examination.
Rules Applicable to All Witnesses
Witness to testify orally
(27)Subjectto any enactment and these Supreme Court Civil Rules,
(a) a witness at a trial of an action must testify in opencourt, and
(b) unless the parties otherwise agree, the witness must testifyorally.
Witness must be listed inwitness list
(28)Unlessthe court otherwise orders, a party must not, at trial, lead evidence from awitness unless that witness is listed in a witness list.
Examination of witnesses
(29)Thecourt may permit a party
(a) to examine a witness, either generally or with respect toone or more issues,
(i) by the use of leading questions,
(ii) by referring the witness to a prior statement made by thewitness, whether or not made under oath,
(iii) respecting the interest of the witness, if any, in theoutcome of the proceeding, or
(iv) respecting any relationship or connection between thewitness and a party, or
(b) to cross-examine a witness, either generally or with respectto one or more issues.
Any party may contradicttestimony
(30)Aparty may contradict or impeach the testimony of any witness.
Party may prepare andserve subpoena
(31)Aparty of record may prepare a subpoena and serve it on any person.
Form of subpoena
(32)Asubpoena must be in Form 25 and may contain any number of names.
Subpoena not to be filedor sealed
(33)Asubpoena need not be filed in or bear the seal of the court.
Service of subpoena
(34)Asubpoena must be served and, if an affidavit is filed for the purpose ofproving the service, the affidavit must state when, where, how and by whomservice was effected.
Fees to accompanysubpoena
(35)Aperson served with a subpoena is entitled to tender of the proper fees at thetime of service.
Production of documentsand physical objects
(36)Aparty of record, by subpoena in Form 25, may require any person other than aparty of record or a representative of a party of record to bring to the trial
(a) any document in the person's possession or control relatingto the matters in question in the action, without the necessity of identifyingthe document, and
(b) any physical object in the person's possession or controlthat the party contemplates tendering at the trial as an exhibit, but thesubpoena must identify the object to be brought.
Order for attendance ofwitness in custody
(37)Thecourt may order the attendance of a witness who is in the lawful custody ofanother person, including the custodian of a penal institution.
Failure of witness toattend, etc.
(38)Onproof
(a) of the service of a subpoena on a witness who fails toattend or to remain in attendance in accordance with the requirements of thesubpoena,
(b) that proper witness fees have been paid or tendered to thatwitness, and
(c) that the presence of that witness is material to the ends ofjustice,
the court, by its warrant in Form 46 directed to a sheriff orother officer of the court or to a peace officer, may cause that witness to beapprehended and promptly brought before the court and to be detained in custodyor released on terms the court may order, and the court may order that witnessto pay the costs arising from his or her failure to attend or to remain inattendance.
Order setting asidesubpoena
(39)Aperson who has been served with a subpoena may apply to the court for an ordersetting aside the subpoena on the grounds that compliance with it isunnecessary or that it would work a hardship on the person, and the court maymake any order, as to postponement of the trial or otherwise, it considers willfurther the object of these Supreme Court Civil Rules.
Deposition Evidence
Use of depositionevidence
(40)Atranscript or video recording of a deposition under Rule 7-8 may be given inevidence at the trial by any party and, even though the deposition of a witnesshas or may be given in evidence, the witness may be called to testify orally atthe trial.
Use of videotape or film
(41)Ifa video recording of a deposition is given in evidence under subrule (40) ofthis rule, a transcript of the deposition may also be given.
Certified transcript
(42)Ifa transcript of a deposition is certified as an accurate transcription by theperson taking the deposition, the transcript may be tendered in evidencewithout proof of the signature of that person.
Video recording ofdeposition evidence
(43)Avideo recording of a deposition may be tendered in evidence without proof ofits accuracy or completeness, but the court may order an investigation toverify the accuracy or completeness of the video recording.
Video recording ofevidence becomes exhibit
(44)Avideo recording of a deposition tendered in evidence becomes an exhibit at thetrial.
Deposition to be given infull
(45)Ifa transcript or video recording of a deposition is given in evidence,
(a) subrule (56) applies, and
(b) the deposition must be presented in full, unless otherwiseagreed by the parties or ordered by the court.
Evidence from Examinations for Discovery
Persons against whomdiscovery evidence is admissible
(46)Ifotherwise admissible, the evidence given on an examination for discovery by aparty or by a person examined under Rule 7-2 (5) to (10) may be tendered inevidence at trial by any party adverse in interest, unless the court otherwiseorders, but the evidence is admissible against the following persons only:
(a) the adverse party who was examined;
(b) the adverse party whose status as a party entitled theexamining party to conduct the examination under Rule 7-2 (5) to (10);
(c) if the person was examined under section 17 of the Class Proceedings Act asa member of a class, the members of that class.
Notice required ofevidence
(47)Ifa person examined for discovery was, at the time of the examination, a formerdirector, officer, employee, agent or external auditor of a party, any part ofhis or her evidence may be tendered at trial if notice has been served on allparties of record at least 14 days before trial specifying the part of theevidence intended to be given at trial.
Attendance at trial maybe required
(48)Anyparty of record may require the attendance at trial of a person whose evidencetaken on examination for discovery is intended to be tendered under subrule(47), and, if the evidence is tendered, all parties of record may cross-examinethat person.
Court may consider wholeexamination
(49)Ifpart of an examination for discovery is tendered in evidence, the court mayreview the whole of that examination and if, following the review, the courtconsiders that another part of the examination is closely connected with thepart tendered in evidence, it may direct that the other part be tendered asevidence.
Discovery evidence ofperson under disability
(50)If,at the time of an examination for discovery, the person examined was an infantor a mentally incompetent person, the examination must not be tendered inevidence unless the trial judge, at the time the evidence is tendered,determines that the person, at the time of the examination, was competent togive evidence.
Transcripts of discoveryevidence
(51)Ifa transcript of an examination for discovery is certified as an accuratetranscription by the official reporter, the transcript may be tendered inevidence without proof of the reporter's signature.
Pre-trial Examinations
Use of pre-trialexamination of a witness
(52)Aparty may tender in evidence at the trial all or part of the examination of aperson taken under Rule 7-5
(a) to contradict or impeach the testimony of the person attrial, or
(b) if it is necessary in the interests of justice and
(i) the person is dead,
(ii) the person is unable to attend and testify because of age,infirmity, sickness or imprisonment,
(iii) the person is out of the jurisdiction, or
(iv) the person's attendance cannot be secured by subpoena.
Court may consider wholepre-trial examination
(53)Ifpart of an examination of a person taken under Rule 7-5 is tendered inevidence, the court may review the whole of that examination and if, followingthe review, the court considers that another part of the examination is soclosely connected with the part tendered in evidence that the last mentionedpart ought not to be used without the other part, it may direct that the otherpart be tendered as evidence.
Transcripts and Interrogatories
Use of transcript ofother proceedings
(54)Ifa witness is dead, or is unable to attend and testify because of age,infirmity, sickness or imprisonment or is out of the jurisdiction or his or herattendance cannot be secured by subpoena, the court may permit a transcript ofany evidence of that witness taken in any proceeding, hearing or inquiry atwhich the evidence was taken under oath, whether or not involving the sameparties, to be put in as evidence, but reasonable notice must be given of theintention to give that evidence.
Transcript for the court
(55)Inan action in which evidence or argument is taken down by an official reporteror is recorded digitally or on audio tape, it is the duty of the plaintiff, ifrequired by the court, to furnish the court with a certified transcript of theevidence or argument or any portion of it, the costs of which form part of thecosts of the action, but if payment of the costs of providing a transcriptwould be a hardship on a party, the court may order that the transcript beprepared at the expense of the government.
Objection to transcriptevidence at trial
(56)Ata trial, a party may object to the admissibility of any question and answer ina transcript or video recording tendered in evidence, although no objection wastaken at the examination.
Custody of transcripts
(57)Ifa transcript is made of a deposition examination, examination for discovery orpre-trial examination of a witness, the party at whose instance the examinationwas held must keep the original transcript unmarked and must have it availableat the trial.
Use of interrogatories attrial
(58)Atthe trial of an action, a party may give in evidence an answer, or part of ananswer, to interrogatories, but the court may look at the whole of the answersand, if it is of the opinion that any other answer or part of an answer is soconnected with an answer or part of it given in evidence that the one ought notto be used without the other, it may direct that the other answer or part of itbe put in as evidence.
Evidence Given by Affidavit
Affidavit evidence
(59)Onthe application of a party of record at or before trial, a judge or master mayorder that the evidence in chief of a witness may be given by affidavit.
Copy of affidavit must befurnished
(60)Aparty seeking to tender evidence by affidavit must serve a copy of theaffidavit on all parties of record at least 28 days, or such lesser period asmay be ordered by the court, before the application referred to in subrule(59).
Cross-examination
(61)Ifa copy of an affidavit of a witness is served under subrule (60), any partymay, unless the court otherwise orders, require the witness to be called forcross-examination at trial, provided that that party gives to the party seekingto tender the evidence by affidavit notice of the requirement within 14 daysafter receiving the affidavit.
Court may extend orabridge time to require witness attendance
(62)Ifa copy of an affidavit is served under subrule (60) less than 28 days beforethe application referred to in subrule (59), the court may extend or abridgethe time referred to in subrule (61) within which parties may require theattendance of the witness at trial for cross-examination.
Contents
(63)Theperson swearing or affirming an affidavit referred to in subrule (59) may stateonly what he or she would be permitted to state were the evidence to be givenorally.
Cross-examination notlimited
(64)Cross-examinationunder subrule (61) or (62) is not confined to matters contained in theaffidavit.
Costs where attendanceunnecessary
(65)Ifa witness has been required to give evidence under subrule (61) or (62), andthe court is of the opinion that the evidence obtained does not materially addto the information in the affidavit furnished under subrule (60), the court mayorder the party that required the attendance of the witness to pay, as costs,an amount the court considers appropriate.
Trial Procedures
Trial with assessor
(66)Thecourt may at any time order a trial to be heard wholly or partially by thecourt sitting with an assessor, and the court may fix the remuneration for theassessor and the remuneration forms part of the costs of the action.
Trial of one questionbefore others
(67)Thecourt may order that one or more questions of fact or law arising in an actionbe tried and determined before the others.
Trial by different modesof trial
(68)Thecourt may order that different questions of fact arising in an action be triedby different modes of trial.
Calculation of amount byofficer of the court
(69)Inan action in which it appears that the amount to be recovered is substantiallya matter of calculation, the court may direct an inquiry, assessment oraccounting under Rule 18-1.
Use of recording device
(70)Ifauthorized by the court to do so, a party may use a recording device to record evidence.
Evidence of particularfacts
(71)Ator before a trial, the court may order that evidence of a fact or document maybe presented at the trial in any manner, including
(a) by statement on oath of information and belief,
(b) by documents or entries in books,
(c) by copies of documents or entries in books, or
(d) by a specified publication that contains a statement of thatfact.
Order of speeches
(72)Addressesto the jury or the court must be as follows:
(a) the party on whom the onus of proof lies may open his or hercase before giving evidence;
(b) at the close of the case of the party who began, theopposite party, if that party announces his or her intention to give evidence,may open his or her case;
(c) at the close of all of the evidence, the party who began mayaddress the jury or the court, and the opposite party may then address the juryor the court and the party who began may then reply and the court may allow theopposite party to be heard in response to a point raised in the reply;
(d) if a defendant claims relief against another defendant, thedefendant claiming relief may address the jury after the defendant against whomrelief is claimed;
(e) if a party is represented by a lawyer, the rights conferredby this rule must be exercised by the party's lawyer.
Court may make orderrespecting submissions
(73)Ator before a trial, the court may make one or both of the following orders inrespect of a party's submissions to the court at the trial:
(a) an order that all or any part of the submissions be inwriting;
(b) an order that all or any part of the submissions be oflimited length.
Clerk to note time oftrial
(74)Oneach day of a trial, the clerk must record the following:
(a) the time the trial begins and ends;
(b) the name of each witness;
(c) the time the witness' evidence begins and ends.
Failure to Attend
Failure of all parties toappear at trial
(75)Withoutlimiting any other power of the court under these Supreme Court Civil Rules, ifno party is in attendance when the trial of an action is called, the actionmust be struck off the trial list unless the court otherwise orders.
Failure of one party toappear at trial
(76)Ifa party is not in attendance when the trial of an action is called, the courtmay proceed with the trial, including hearing a counterclaim, in the absence ofthat party.
Court may set asidejudgment
(77)Thecourt may set aside a verdict or judgment obtained if a party does not attendthe trial.
Rule 12-6 — Jury Trials
Trial without jurygenerally
(1)Subjectto subrule (3), a trial must be heard by the court without a jury.
Trial without jury incertain proceedings
(2)Atrial must be heard by the court without a jury if the trial relates to
(a) the administration of the estate of a deceased person,
(b) the dissolution of a partnership or the taking ofpartnership or other accounts,
(c) the redemption or foreclosure of a mortgage,
(d) the sale and distribution of the proceeds of propertysubject to any lien or charge,
(e) the execution of trusts,
(f) the rectification, setting aside or cancellation of a deedor other written instrument,
(g) the specific performance of a contract,
(h) the partition or sale of real estate,
(i) the custody or guardianship of an infant or the care of aninfant's estate, or
(j) a proceeding referred to in Rule 2-1 (2).
Notice requiring jurytrial
(3)Subjectto Rule 15-1 (10) and subrules (2) and (4) of this rule, a party may requirethat the trial of an action be heard by the court with a jury by doing thefollowing:
(a) within 21 days after service of the notice of trial but atleast 45 days before trial,
(i) filing a notice in Form 47, and
(ii) serving a copy of the filed notice on all parties ofrecord;
(b) at least 45 days before trial, paying to the sheriff a sumsufficient to pay for the jury and the jury process.
[am.B.C. Regs. 95/2011, Sch. A, s. 5; 65/2013, Sch. A, s. 2.]
Jury notice not toprevent transfer of proceeding
(4)Thecourt may transfer a proceeding to the Provincial Court of British Columbiaunder section 15 of the Supreme Court Act eventhough a party has filed a notice under subrule (3).
Court may refuse jurytrial
(5)Exceptin cases of defamation, false imprisonment and malicious prosecution, a partyon whom a notice under subrule (3) has been served may apply
(a) within 7 days after service for an order that the trial orpart of it be heard by the court without a jury on the ground that
(i) the issues require prolonged examination of documents or accountsor a scientific or local investigation that cannot be made conveniently with ajury,
(ii) the issues are of an intricate or complex character, or
(iii) the extra time and cost involved in requiring that thetrial be heard by the court with a jury would be disproportionate to the amountinvolved in the action, or
(b) at any time for an order that the trial be heard by thecourt without a jury on the ground that the trial relates to a fast trackaction or to one of the proceedings referred to in subrule (2).
No application forjudgment necessary
(6)Anapplication for judgment is not necessary unless an enactment or these SupremeCourt Civil Rules otherwise provides.
Judgment impossible onjury findings
(7)If,after any redirection the court considers appropriate, a jury answers some butnot all of the questions directed to it, or if the answers are conflicting, sothat judgment cannot be pronounced on the findings, the action must be retried.
Only partial judgmentpossible on jury findings
(8)Ifthe answers of the jury entitle either party to judgment in respect of some butnot all of the claims for relief in the notice of civil claim, the court maypronounce judgment on those claims and the remaining claims must be retried.
Jury failing to reachverdict
(9)Ifthe jury fails to reach a verdict in accordance with the Jury Act, theaction must be retried.
Retrial
(10)Aretrial under subrules (7) to (9) may take place at the same or subsequentsittings as the court may direct.
Continuing trial withoutjury
(11)If,for any reason other than the misconduct of a party or the party's lawyer, atrial with a jury would be retried, the court, with the consent of the partywho required a jury trial, may continue the trial without a jury.
Trial may continuewithout jury
(12)If,by reason of the misconduct of a party or the party's lawyer, a trial with ajury would be retried, the court, with the consent of all parties adverse ininterest to the party whose conduct, or whose lawyer's conduct, is complainedof, may continue the trial without a jury.



 楼主| 发表于 8/31/2017 01:30:23 | 显示全部楼层
Trial Management Conference
Date for trial managementconference
(1)Unlessthe court otherwise orders, a trial management conference must take place atleast 28 days before the scheduled trial date, at a time and place to be fixedby a registrar.
Trial managementconference must be conducted by judge
(2)Atrial management conference must be conducted by a judge or master and, ifreasonably practicable, is to be conducted by the judge who will preside at thetrial.
[am.B.C. Reg. 58/2012, Sch. A, s. 1.]
Trial brief required
(3)Unless the court otherwise orders, the plaintiff must, at least 28 days before the date set for the trial management conference,
(a) file a trial brief in Form 41, and
(b) serve a copy of the filed trial brief on all other parties of record.
[en.B.C. Reg. 3/2016, s. 1 (a).]
Trial brief — other parties of record
(3.1)Unless the court otherwise orders, each party of record, other than the plaintiff, must, no later than 21 days before the date set for the trial management conference,
(a) file a trial brief in Form 41, and
(b) serve a copy of the filed trial brief on all other parties of record.
[en.B.C. Reg. 3/2016, s. 1 (a).]
Failure to serve trial brief
(3.2)If a party of record has failed to comply with subrule (3) (b) or (3.1) (b), the judge or master at a trial management conference may order costs against that party.
[en.B.C. Reg. 3/2016, s. 1 (a).]
Trial removed from triallist
(3.3)Unless the court otherwise orders, a trial must be removed from the trial list if no trial brief has been filed under subrule (3) or (3.1).
[en.B.C. Reg. 3/2016, s. 1 (a).]
Application for consent order
(3.4)Despite subrule (1), the parties of record may, no later than 14 days before the date set for a trial management conference, apply under Rule 8-3 (1) for an order by consent dispensing with the need for a trial management conference.
[en.B.C. Reg. 3/2016, s. 1 (a).]
Application materials
(3.5)In addition to the materials required under Rule 8-3 (1), an application referred to in subrule (3.4) of this rule must include a copy of each filed trial brief.
[en.B.C. Reg. 3/2016, s. 1 (a), as am. by B.C. Reg. 162/2016.]
Consent order
(3.6)A judge or master may make the order referred to in subrule (3.4) if satisfied that the matter is ready to proceed to trial and can be completed within the time reserved for it.
[en.B.C. Reg. 3/2016, s. 1 (a).]
Who must attend the trial management conference
(4)Unlessthe court otherwise orders, the following persons must attend a trialmanagement conference in person:
(a) each lawyer representing a party of record;
(b) subject to the exception set out in subrule (5), each partyof record.
Absent parties must beavailable and accessible by telephone or other means
(5)Aparty of record need not attend the trial management conference in person ifthe party is represented by a lawyer and one of the following is readilyavailable for consultation during the trial management conference, either inperson or by telephone:
(a) the party;
(b) an individual who
(i) has full authority to make decisions for that partyconcerning the action, or
(ii) has ready access to a person who has, or to a group ofpersons who collectively have, full authority to make decisions for that partyconcerning the action.
Application must be madeby requisition
(6)Anapplication under subrule (4) for an order respecting the manner in which a personis to attend a trial management conference or exempting a person from attendinga trial management conference
(a) must be made by requisition in Form 17, and
(b) must be supported by a letter signed by the person or theperson's lawyer setting out the reasons why the order is sought.
(c) Repealed. [B.C. Reg. 3/2016, s. 1 (b).]
[am.B.C. Reg. 3/2016, s. 1 (b).]
Non-attendance at trialmanagement conference
(7)If aperson who, under subrule (4), is required to attend a trial managementconference fails to attend at that trial management conference, the trialmanagement conference judge or master may do one or more of the following:
(a) proceed in the absence of the person who failed to attend;
(b) adjourn the trial management conference;
(c) order that the person, or the party on whose behalf theperson was to attend, pay costs to one or more other parties.
[am.B.C. Reg. 58/2012, Sch. A, s. 1.]
Proceedings must berecorded
(8)Proceedingsat a trial management conference must be recorded, but no part of thatrecording may be made available to or used by any person without court order.
Orders at a trialmanagement conference
(9)Thejudge or master presiding at a trial management conference may consider thefollowing and, without limiting the ability of the trial judge or master tomake other orders at trial, may, whether or not on the application of a party,make orders respecting one or more of the following:
(a) a plan for how the trial should be conducted;
(b) whether or not the trial or any part of it is to be heardwithout a jury, on any of the grounds set out in Rule 12-6 (5);
(c) amendment of pleadings within a fixed time;
(d) admissions of fact at trial;
(e) admission of documents at trial, including
(i) agreements as to the purposes for which documents may beadmitted, and
(ii) the preparation of common books of documents and documentagreements;
(f) imposing time limits for the direct examination orcross-examination of witnesses, opening statements and final submissions;
(g) directing that a party provide a summary of the evidencethat the party expects one or more of the party's witnesses will give at trial;
(h) directing that evidence of witnesses be presented at trialby way of affidavit;
(i) respecting experts, including, without limitation, ordersthat the parties' experts must, before the service of their respective reports,confer to determine and report on those matters on which they agree and thosematters on which they do not agree;
(j) directing that the parties present opening statements andfinal submissions in writing;
(k) respecting when and how an issue between the party filing athird party notice and the third party may be tried;
(l) adjournment of the trial;
(m) directing that the number of days reserved for the trial bechanged;
(n) directing the parties to attend a settlement conference;
(o) adjourning the trial management conference;
(p) directing the parties to attend a further trial management conference at a specified date and time;
(q) any other matter that may assist in making the trial more efficient;
(r) any other matter that may aid in the resolution of the proceeding;
(s) any orders the judge or master considers will further the object of these Supreme Court Civil Rules.
[am.B.C. Reg. 58/2012, Sch. A, s. 1.]
When approval in writing by lawyer not required
(10)Without limiting Rule 13-1 (2), if an order under subrule (9) of this rule is signed or initialed by the trial management conference judge or master, that order need not be approved in writing by a lawyer or by a party.
[am.B.C. Reg. 58/2012, Sch. A, s. 1.]
Prohibited orders
(11)A trial management conference judge or master must not, at a trial management conference,
(a) hear any application for which affidavit evidence is required, or
(b) make an order for final judgment, except by consent.
[am.B.C. Reg. 58/2012, Sch. A, s. 1.]

 楼主| 发表于 8/31/2017 01:34:42 | 显示全部楼层
Rule 12-3 — Trial Record
Trial record for the court
(1)The party who files a notice of trial must file a trial record for the court, which trial record must contain
(a) the pleadings,
(b) particulars served under a demand, together with the demand made,
(c) the case plan order, if any,
(d) any order relating to the conduct of the trial, and
(e) any document required by a Registrar under sub-rule (2).
[am.B.C. Reg. 119/2010, Sch. A, s. 26.]
Powers of registrar respecting trial records
(2)A registrar may direct inclusion in the trial record of any document the Registrar thinks necessary or may reject a trial record that, in the registrar's opinion,
(a) does not contain all the documents required under subrule(1),
(b) contains a document that is not a document required under subrule (1), or
(c) is illegible.
Filing and service of trial record
(3)The party referred to in subrule (1) must
(a) file the trial record at least 14 days before but not more than 28 days before the scheduled trial date, and
(b) promptly after filing, serve a copy of the filed trial record on the other parties of record.
Amended trial record
(4)If the whole or any part of a pleading is amended after service of the trial record, the party who filed the notice of trial must
(a) amend the trial record by substituting the amended pleading for the version of the pleading that had previously been included, and
(b) at least one day before the trial,
(i) file the amended trial record, and
(ii) serve a copy on all parties of record.
Direction as to trial record
(5)If the court directs that a proceeding be set down for trial, it may also direct one of the parties to prepare, file and serve a trial record.

 楼主| 发表于 8/31/2017 01:40:26 | 显示全部楼层
Rule 12-4 — Trial Certificate
Trial certificate
(1)Each party of record must file a trial certificate in Form 42 in the registry where the trial is to be held.
When trial certificate must be filed
(2)The trial certificate must be filed at least 14 days before but not more than 28days before the scheduled trial date.
What trial certificate must contain
(3)The trial certificate must contain the following:
(a) a statement that the party filing the trial certificate will be ready to proceed on the scheduled trial date;
(b) a statement certifying that the party filing the trial certificate has completed all examinations for discovery that the party intends to conduct;
(c) the party's current estimate of the length of the trial;
(d) a statement that a trial management conference has been conducted in the action.
[am.B.C. Reg. 119/2010, Sch. A, s. 27.]
Service
(4)Promptly after filing a trial certificate, the filing party must serve a copy of the filed trial certificate on all parties of record.
Failure to file
(5)Unless the court otherwise orders, if no party of record files a trial certificate, the trial must be removed from the trial list.
[am.B.C. Reg. 95/2011, Sch. A, s. 4.]
Applications prohibited
(6)A party who fails to file a trial certificate under subrule (1) is not, without leave of the court, entitled to make further applications.

 楼主| 发表于 8/31/2017 02:25:01 | 显示全部楼层
本帖最后由 郭国汀 于 8/31/2017 02:26 编辑

Rule 12-5 — Evidence and Procedure at Trial
Application
(1)This rule does not apply to summary trials under Rule 9-7, except as provided in that rule.
Proof of Facts and Documents
Court may vary order
(2)An order made under this rule concerning the mode of proving a fact or document or of tendering evidence may be revoked or varied by a subsequent order made at or before the trial.
Failure to prove a material fact
(3)If a party omits or fails to prove some fact material to the party's case, the court may proceed with the trial, subject to that fact being afterward proved as the court directs, and,
(a) if the case is being tried by a jury, the court may direct the jury to find a verdict as if that fact had been proved, and
(b) unless the court otherwise orders, judgment must be entered according to whether or not that fact is or is not afterward proved as directed.
No Evidence and Insufficient Evidence Applications
No evidence application
(4)At the close of the plaintiff's case, the defendant may apply to have the action dismissed on the ground that there is no evidence to support the plaintiff's case.
Defendant need not elect whether to call evidence
(5)A defendant is entitled to apply under subrule (4) without being called on to elect whether or not to call evidence.
Insufficient evidence application
(6)At the close of the plaintiff's case, the defendant may apply to have the action dismissed on the ground that the evidence is insufficient to make out the plaintiff's case.
Defendant must elect not to call evidence
(7)Unless the court otherwise orders, an application under subrule (6) may be made only after the defendant has elected not to call evidence.
Documentary and Other Exhibits
Notice to produce
(8)By serving a notice in Form 43 at least 2 days before a trial, a party of record may require any other party of record to bring to the trial
(a) any document listed by the other party in a list of documents prepared under Rule 7-1, and
(b) any physical object in the other party's possession or control that the party serving the notice contemplates tendering at the trial as an exhibit, but the notice must identify the object.
Numbering exhibit pages
(9)If a copy of a document is tendered as an exhibit,
(a) each page of the exhibit must be numbered sequentially, beginning with the first page of the exhibit and ending with the last page of the exhibit, or
(b) if the exhibit is divided by tabs,
(i) each page of the exhibit that is not behind a tab must be numbered sequentially, beginning with the first of those pages and ending with the last of those pages, and
(ii) each page of the exhibit that is behind a tab must be numbered sequentially, beginning with the first page behind the tab and ending with the last page behind the tab.
Opportunity to inspect exhibits
(10)Unless the court otherwise orders or the parties of record otherwise agree, no plan, photograph or object may be received in evidence at the trial of an action unless, at least 7 days before the start of the trial, the parties of record have been given an opportunity to inspect it.
Registrar to take charge of exhibits
(11)A registrar must
(a) take charge of each document or object put in as an exhibit,
(b) mark or label each exhibit with a number, and
(c) make a list of the exhibits, giving a short description of each and stating by whom it was tendered.
Return of exhibits
(12)Subject to subrule (13), after the time for appeal from judgment has expired or after the disposition of an appeal, new trial or further appeal, whichever is latest, a registrar may return an exhibit to the party who tendered it.
Other returns
(13)The parties of record may agree or the court may order that an exhibit be returned at an earlier time or to a person other than the party who tendered it.
Disposal of exhibits after final disposition
(14)A registrar may, with the approval of the Deputy Attorney General, destroy or otherwise dispose of an exhibit tendered in evidence in a proceeding if the return of the exhibit has not been applied for within one year after the later of
(a) the date of the judgment at trial in, or any other final disposition of, the proceeding, and
(b) the date of the judgment on, or any other final disposition of, any appeal, new trial or further appeal.
Notice respecting disposal of exhibits before final disposition
(15)Ifan exhibit is tendered in evidence in a proceeding and nothing is filed in that proceeding for a period of 2 years, a registrar may notify the parties of record that the registrar intends to destroy or otherwise dispose of the exhibit unless within 30 days after the date of the notice,
(a) an application is made for the return of the exhibit, or
(b) a notice of intention to proceed in Form 44 is served on all parties of record and a copy of the notice and proof of its service is filed in the proceeding.
Disposal of exhibits before final disposition
(16)After giving notice of the intended destruction or disposition of an exhibit under subrule (15), a registrar may,
(a) if, within 30 days after the date of the notice, a person applies to the registrar for a return of the exhibit, return the exhibit to the party who tendered it or to such other person as the parties of record may agree or the court may order, or
(b) if no such application is made and if none of the parties comply with subrule (15) (b) within 30 days after the date of the notice, destroy or otherwise dispose of the exhibit with the approval of the DeputyAttorney General.
If exhibit disposed of
(17)Ifan exhibit is disposed of under subrule (14) or (16) (b),
(a) any money received as a result of the disposition must be paid to the Minister of Finance, and
(b) the exhibit list must be endorsed to indicate the date and method of disposition and the amount of any money recovered.
If exhibit destroyed
(18)Ifan exhibit is destroyed under subrule (14) or (16) (b), the exhibit list must be endorsed to indicate the date and method of destruction.
Adverse Witnesses
"Adverse party" defined
(19)For the purpose of sub-rules (20) to (23), "adverse party" means a party who is adverse in interest.
Adverse witness
(20)Subrules(21) to (24) apply if a party wishes to call as a witness at the trial
(a) an adverse party, or
(b) a person who, at the time the notice referred to in subrule(21) is served, is a director, officer, partner, employee or agent of the anadverse party.
Notice to call adverse witness
(21)If a party wishes to call as a witness a person referred to in subrule (20) (a) or(b), the party must serve on the adverse party a notice in Form 45 together with proper witness fees at least 7 days before the date on which the attendance of the intended witness is required.
Exceptions
(22)Despite subrule (21), a party may
(a) call as a witness, without payment of witness fees or previous notice, a person referred to in subrule (20) (a) or (b) if the person called is in attendance at the trial, or
(b) subpoena a person referred to in subrule (20) (a) or (b).
Application to set notice aside
(23)The court may set aside a notice served under subrule (21) on the grounds that
(a) the adverse party is unable to procure the attendance of the person named in the notice,
(b) the evidence of the person is unnecessary,
(c) it would work a hardship on the person or the adverse party to require the person to attend the trial, or
(d) the person named in the notice is not a person referred to in subrule (20) (a) or (b).
Court may make order
(24)Onan application under subrule (23), the court may make any order it considers will further the object of these Supreme Court Civil Rules, including, without limitation, an order adjourning the trial.
Refusal to comply with notice
(25)If a person called as a witness in accordance with subrule (21) or (22) refuses or neglects to attend at the trial, to be sworn or to affirm, to answer a proper question put to the person or to produce a document that the person is required to produce, the court may do one or more of the following:
(a) grant judgment in favor of the party who called the witness;
(b) adjourn the trial;
(c) make an order as to costs;
(d) make any other order it considers will further the object of these Supreme Court Civil Rules.
Adverse party as witness may be cross-examined
(26)If, in accordance with subrule (21) or (22), party calls as a witness a person referred to in subrule (20) (a) or (b), the following apply:
(a) the party calling the witness is entitled to cross-examine the witness generally on one or more issues;
(b) the adverse party must not cross-examine the witness except to obtain an explanation of matters brought out in the examination-in-chief;
(c) other parties may cross-examine the witness generally on one or more issues, as the court may direct;
(d) the party calling the witness must not re-examine the witness except in relation to new matters brought out in cross-examination.
Rules Applicable to All Witnesses
Witness to testify orally
(27)Subject to any enactment and these Supreme Court Civil Rules,
(a) a witness at a trial of an action must testify in open court, and
(b) unless the parties otherwise agree, the witness must testify orally.
Witness must be listed in witness list
(28)Unless the court otherwise orders, a party must not, at trial, lead evidence from a witness unless that witness is listed in a witness list.
Examination of witnesses
(29)The court may permit a party
(a) to examine a witness, either generally or with respect to one or more issues,
(i) by the use of leading questions,
(ii) by referring the witness to a prior statement made by the witness, whether or not made under oath,
(iii) respecting the interest of the witness, if any, in the outcome of the proceeding, or
(iv) respecting any relationship or connection between the witness and a party, or
(b) to cross-examine a witness, either generally or with respect to one or more issues.
Any party may contradict testimony
(30)A party may contradict or impeach the testimony of any witness.
Party may prepare and serve subpoena
(31)A party of record may prepare a subpoena and serve it on any person.
Form of subpoena
(32)A subpoena must be in Form 25 and may contain any number of names.
Subpoena not to be filed or sealed
(33)A subpoena need not be filed in or bear the seal of the court.
Service of subpoena
(34)A subpoena must be served and, if an affidavit is filed for the purpose of proving the service, the affidavit must state when, where, how and by whom service was effected.
Fees to accompany subpoena
(35)A person served with a subpoena is entitled to the tender of the proper fees at the time of service.
Production of documents and physical objects
(36)A party of record, by subpoena in Form 25, may require any person other than a party of record or a representative of a party of record to bring to the trial
(a) any document in the person's possession or control relating to the matters in question in the action, without the necessity of identifying the document, and
(b) any physical object in the person's possession or control that the party contemplates tendering at the trial as an exhibit, but the subpoena must identify the object to be brought.
Order for attendance of witness in custody
(37)The court may order the attendance of a witness who is in the lawful custody of another person, including the custodian of a penal institution.
Failure of witness to attend, etc.
(38)Proof
(a) of the service of a subpoena on a witness who fails to attend or to remain in attendance in accordance with the requirements of the subpoena,
(b) that proper witness fees have been paid or tendered to that witness, and
(c) that the presence of that witness is material to the ends of justice,
the court, by its warrant in Form 46 directed to a sheriff or other officer of the court or to a peace officer, may cause that witness to be apprehended and promptly brought before the court and to be detained in custody or released on terms the court may order, and the court may order that witness to pay the costs arising from his or her failure to attend or to remain in attendance.
Order setting aside subpoena
(39)A person who has been served with a subpoena may apply to the court for an order setting aside the subpoena on the grounds that compliance with it is unnecessary or that it would work a hardship on the person, and the court may make any order, as to postponement of the trial or otherwise, it considers will further the object of these Supreme Court Civil Rules.
Deposition Evidence
Use of deposition evidence
(40)A transcript or video recording of a deposition under Rule 7-8 may be given in evidence at the trial by any party and, even though the deposition of a witness has or may be given in evidence, the witness may be called to testify orally at the trial.
Use of videotape or film
(41)If a video recording of a deposition is given in evidence under subrule (40) of this rule, a transcript of the deposition may also be given.
Certified transcript
(42)If a transcript of a deposition is certified as an accurate transcription by the person taking the deposition, the transcript may be tendered in evidence without proof of the signature of that person.
Video recording of deposition evidence
(43)A video recording of a deposition may be tendered in evidence without proof of its accuracy or completeness, but the court may order an investigation to verify the accuracy or completeness of the video recording.
Video recording of evidence becomes exhibit
(44)A video recording of a deposition tendered in evidence becomes an exhibit at the trial.
Deposition to be given in full
(45)If a transcript or video recording of a deposition is given in evidence,
(a) subrule (56) applies, and
(b) the deposition must be presented in full, unless otherwise agreed by the parties or ordered by the court.
Evidence from Examinations for Discovery
Persons against whom discovery evidence is admissible
(46)If otherwise admissible, the evidence given on an examination for discovery by a party or by a person examined under Rule 7-2 (5) to (10) may be tendered in evidence at trial by any party adverse in interest, unless the court otherwise orders, but the evidence is admissible against the following persons only:
(a) the adverse party who was examined;
(b) the adverse party whose status as a party entitled the examining party to conduct the examination under Rule 7-2 (5) to (10);
(c) if the person was examined under section 17 of the Class Proceedings Act as a member of a class, the members of that class.
Notice required of evidence
(47)If a person examined for discovery was, at the time of the examination, a former director, officer, employee, agent or external auditor of a party, any part of his or her evidence may be tendered at trial if notice has been served on all parties of record at least 14 days before trial specifying the part of the evidence intended to be given at trial.
Attendance at trial may be required
(48)Any party of record may require the attendance at trial of a person whose evidence taken on the examination for discovery is intended to be tendered under subrule(47), and, if the evidence is tendered, all parties of record may cross-examine that person.
Court may consider whole examination
(49)If part of an examination for discovery is tendered in evidence, the court may review the whole of that examination and if, following the review, the court considers that another part of the examination is closely connected with the part tendered in evidence, it may direct that the other part be tendered as evidence.
Discovery evidence of person under disability
(50)If, at the time of an examination for discovery, the person examined was an infant or a mentally incompetent person, the examination must not be tendered in evidence unless the trial judge, at the time the evidence is tendered, determines that the person, at the time of the examination, was competent to give evidence.
Transcripts of discovery evidence
(51)If a transcript of an examination for discovery is certified as an accurate transcription by the official reporter, the transcript may be tendered in evidence without proof of the reporter's signature.
Pre-trial Examinations
Use of pre-trial examination of a witness
(52)A party may tender in evidence at the trial all or part of the examination of a person taken under Rule 7-5
(a) to contradict or impeach the testimony of the person at trial, or
(b) if it is necessary in the interests of justice and
(i) the person is dead,
(ii) the person is unable to attend and testify because of age, infirmity, sickness or imprisonment,
(iii) the person is out of the jurisdiction, or
(iv) the person's attendance cannot be secured by subpoena.
Court may consider whole pre-trial examination
(53)If part of an examination of a person taken under Rule 7-5 is tendered in evidence, the court may review the whole of that examination and if, following the review, the court considers that another part of the examination is so closely connected with the part tendered in evidence that the last mentioned part ought not to be used without the other part, it may direct that the other part be tendered as evidence.
Transcripts and Interrogatories
Use of transcript of other proceedings
(54)If a witness is dead, or is unable to attend and testify because of age, infirmity, sickness or imprisonment or is out of the jurisdiction or his or her attendance cannot be secured by subpoena, the court may permit a transcript of any evidence of that witness taken in any proceeding, hearing or inquiry at which the evidence was taken under oath, whether or not involving the same parties, to be put in as evidence, but reasonable notice must be given of the intention to give that evidence.
Transcript for the court
(55)Inan action in which evidence or argument is taken down by an official reporter or is recorded digitally or on audio tape, it is the duty of the plaintiff, if required by the court, to furnish the court with a certified transcript of the evidence or argument or any portion of it, the costs of which form part of the costs of the action, but if payment of the costs of providing a transcript would be a hardship on a party, the court may order that the transcript be prepared at the expense of the government.
Objection to transcript evidence at trial
(56)Ata trial, a party may object to the admissibility of any question and answer in a transcript or video recording tendered in evidence, although no objection was taken at the examination.
Custody of transcripts
(57)If a transcript is made of a deposition examination, examination for discovery or pre-trial examination of a witness, the party at whose instance the examination was held must keep the original transcript unmarked and must have it available at the trial.
Use of interrogatories at trial
(58)At the trial of an action, a party may give in evidence an answer, or part of an answer, to interrogatories, but the court may look at the whole of the answers and, if it is of the opinion that any other answer or part of an answer is so connected with an answer or part of it given in evidence that the one ought not to be used without the other, it may direct that the other answer or part of it be put in as evidence.
Evidence Given by Affidavit
Affidavit evidence
(59)On the application of a party of record at or before trial, a judge or master may order that the evidence in chief of a witness may be given by affidavit.
Copy of affidavit must be furnished
(60)A party seeking to tender evidence by affidavit must serve a copy of the affidavit on all parties of record at least 28 days, or such lesser period as may be ordered by the court, before the application referred to in subrule(59).
Cross-examination
(61)If a copy of an affidavit of a witness is served under subrule (60), any party may, unless the court otherwise orders, require the witness to be called for cross-examination at trial, provided that that party gives to the party seeking to tender the evidence by affidavit notice of the requirement within 14 days after receiving the affidavit.
Court may extend or abridge time to require witness attendance
(62)If a copy of an affidavit is served under subrule (60) less than 28 days before the application referred to in subrule (59), the court may extend or abridge the time referred to in subrule (61) within which parties may require the attendance of the witness at trial for cross-examination.
Contents
(63)The person swearing or affirming an affidavit referred to in subrule (59) may state only what he or she would be permitted to state were the evidence to be given orally.
Cross-examination not limited
(64)Cross-examination under subrule (61) or (62) is not confined to matters contained in the affidavit.
Costs where attendance unnecessary
(65)If a witness has been required to give evidence under subrule (61) or (62), and the court is of the opinion that the evidence obtained does not materially add to the information in the affidavit furnished under subrule (60), the court may order the party that required the attendance of the witness to pay, as costs,an amount the court considers appropriate.
Trial Procedures
Trial with assessor
(66)The court may at any time order a trial to be heard wholly or partially by the court sitting with an assessor, and the court may fix the remuneration for the assessor and the remuneration forms part of the costs of the action.
Trial of one question before others
(67)The court may order that one or more questions of fact or law arising in an action be tried and determined before the others.
Trial by different modesof trial
(68)Thecourt may order that different questions of fact arising in an action be triedby different modes of trial.
Calculation of amount byofficer of the court
(69)Inan action in which it appears that the amount to be recovered is substantiallya matter of calculation, the court may direct an inquiry, assessment oraccounting under Rule 18-1.
Use of recording device
(70)Ifauthorized by the court to do so, a party may use a recording device to record evidence.
Evidence of particularfacts
(71)Ator before a trial, the court may order that evidence of a fact or document maybe presented at the trial in any manner, including
(a) by statement on oath of information and belief,
(b) by documents or entries in books,
(c) by copies of documents or entries in books, or
(d) by a specified publication that contains a statement of thatfact.
Order of speeches
(72)Addresses to the jury or the court must be as follows:
(a) the party on whom the onus of proof lies may open his or her case before giving evidence;
(b) at the close of the case of the party who began, the opposite party, if that party announces his or her intention to give evidence, may open his or her case;
(c) at the close of all of the evidence, the party who began may address the jury or the court, and the opposite party may then address the jury or the court and the party who began may then reply and the court may allow the opposite party to be heard in response to a point raised in the reply;
(d) if a defendant claims relief against another defendant, the defendant claiming relief may address the jury after the defendant against whom relief is claimed;
(e) if a party is represented by a lawyer, the rights conferred by this rule must be exercised by the party's lawyer.
Court may make order respecting submissions
(73)Ator before a trial, the court may make one or both of the following orders in respect of a party's submissions to the court at the trial:
(a) an order that all or any part of the submissions be in writing;
(b) an order that all or any part of the submissions be oflimited length.
Clerk to note time oftrial
(74)Oneach day of a trial, the clerk must record the following:
(a) the time the trial begins and ends;
(b) the name of each witness;
(c) the time the witness' evidence begins and ends.
Failure to Attend
Failure of all parties to appear at trial
(75)Without limiting any other power of the court under these Supreme Court Civil Rules, if no party is in attendance when the trial of an action is called, the action must be struck off the trial list unless the court otherwise orders.
Failure of one party to appear at trial
(76)If a party is not in attendance when the trial of an action is called, the court may proceed with the trial, including hearing a counterclaim, in the absence of that party.
Court may set aside judgment
(77)The court may set aside a verdict or judgment obtained if a party does not attend the trial.

 楼主| 发表于 8/31/2017 02:26:58 | 显示全部楼层
Rule 12-6 — Jury Trials
Trial without jurygenerally
(1)Subjectto subrule (3), a trial must be heard by the court without a jury.
Trial without jury incertain proceedings
(2)Atrial must be heard by the court without a jury if the trial relates to
(a) the administration of the estate of a deceased person,
(b) the dissolution of a partnership or the taking ofpartnership or other accounts,
(c) the redemption or foreclosure of a mortgage,
(d) the sale and distribution of the proceeds of propertysubject to any lien or charge,
(e) the execution of trusts,
(f) the rectification, setting aside or cancellation of a deedor other written instrument,
(g) the specific performance of a contract,
(h) the partition or sale of real estate,
(i) the custody or guardianship of an infant or the care of aninfant's estate, or
(j) a proceeding referred to in Rule 2-1 (2).
Notice requiring jurytrial
(3)Subjectto Rule 15-1 (10) and subrules (2) and (4) of this rule, a party may requirethat the trial of an action be heard by the court with a jury by doing thefollowing:
(a) within 21 days after service of the notice of trial but atleast 45 days before trial,
(i) filing a notice in Form 47, and
(ii) serving a copy of the filed notice on all parties ofrecord;
(b) at least 45 days before trial, paying to the sheriff a sumsufficient to pay for the jury and the jury process.
[am.B.C. Regs. 95/2011, Sch. A, s. 5; 65/2013, Sch. A, s. 2.]
Jury notice not toprevent transfer of proceeding
(4)Thecourt may transfer a proceeding to the Provincial Court of British Columbiaunder section 15 of the Supreme Court Act eventhough a party has filed a notice under subrule (3).
Court may refuse jurytrial
(5)Exceptin cases of defamation, false imprisonment and malicious prosecution, a partyon whom a notice under subrule (3) has been served may apply
(a) within 7 days after service for an order that the trial orpart of it be heard by the court without a jury on the ground that
(i) the issues require prolonged examination of documents or accountsor a scientific or local investigation that cannot be made conveniently with ajury,
(ii) the issues are of an intricate or complex character, or
(iii) the extra time and cost involved in requiring that thetrial be heard by the court with a jury would be disproportionate to the amountinvolved in the action, or
(b) at any time for an order that the trial be heard by thecourt without a jury on the ground that the trial relates to a fast trackaction or to one of the proceedings referred to in subrule (2).
No application forjudgment necessary
(6)Anapplication for judgment is not necessary unless an enactment or these SupremeCourt Civil Rules otherwise provides.
Judgment impossible onjury findings
(7)If,after any redirection the court considers appropriate, a jury answers some butnot all of the questions directed to it, or if the answers are conflicting, sothat judgment cannot be pronounced on the findings, the action must be retried.
Only partial judgmentpossible on jury findings
(8)Ifthe answers of the jury entitle either party to judgment in respect of some butnot all of the claims for relief in the notice of civil claim, the court maypronounce judgment on those claims and the remaining claims must be retried.
Jury failing to reachverdict
(9)Ifthe jury fails to reach a verdict in accordance with the Jury Act, theaction must be retried.
Retrial
(10)Aretrial under subrules (7) to (9) may take place at the same or subsequentsittings as the court may direct.
Continuing trial withoutjury
(11)If,for any reason other than the misconduct of a party or the party's lawyer, atrial with a jury would be retried, the court, with the consent of the partywho required a jury trial, may continue the trial without a jury.
Trial may continuewithout jury
(12)If,by reason of the misconduct of a party or the party's lawyer, a trial with ajury would be retried, the court, with the consent of all parties adverse ininterest to the party whose conduct, or whose lawyer's conduct, is complainedof, may continue the trial without a jury.

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