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Evidence by witnesses
46.01. (1) Unless it is otherwise ordered or a statute or rule otherwise provides, a witness shall be examined orally and in open court.
(2) The Court may at any stage of a trial direct that a witness be recalled for further examination.
Scope of examination and cross-examination of witnesses
46.02. (1) The Court shall exercise reasonable control over the mode of interrogation of a witness so as
(a) to make such interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and
(b) to protect the witness from undue harassment or embarrassment.
(2) A party may interrogate an unwilling or hostile witness by leading questions.
(3) A party may call an adverse party or an officer, director or manager of an adverse party and may interrogate the adverse party by leading questions and contradict and impeach him or her in all respects as if the party had been called by the adverse party and such witness may also be contradicted and impeached by or on behalf of the adverse party but may be cross-examined by such adverse party only upon the subject matter of the examination-in-chief.
(4) The Court may disallow any question put in cross-examination of any witness that appears to the Court to be vexatious and not relevant to any matter proper to be inquired into in the proceeding.
Evidence by affidavit
46.03. (1) The Court may by order permit
(a) any fact to be proved by affidavit; or
(b) the affidavit of any witness to be read at a trial, and
unless the Court otherwise orders, the deponent shall not be subject to cross-examination and need not attend the trial.
(2) An order under rule 46.03(1) may be made on such terms as to filing and service of the affidavit and to the production of the deponent for cross-examination as the Court thinks just.
Evidence of particular facts
46.04. The Court may by order permit the evidence of any particular fact to be given
(a) by affidavit as provided in rule 46.03;
(b) by the production of documents or entries in books, or of true copies thereof; or
(c) where the fact is or was a matter of common knowledge either generally or in a particular district, by the production of a specific newspaper which contains a statement of that fact.
Limitation of expert evidence
46.05. The Court may order that the number of expert witnesses, including medical witnesses, to be called at a trial shall be limited.
Limitation of plans, etc. in evidence
46.06. Unless an opposite party, at least ten days before the commencement of a trial, has been given an opportunity to inspect any plan, photograph or model and to agree to its admission without further proof, the plan, photograph, or model shall not be admissible in evidence at the trial without the approval of the Court, which may be granted on such terms as are just.
Expert witness; evidence of and report
46.07. Unless an opposite party has, at least ten days before the commencement of a trial, been given a report of an expert witness who is expected to give evidence on a trial, the evidence shall not be admissible without the approval of the Court, which may be granted on such terms as are just.
Proof of any fact or document subsequent to trial
46.08. Where through an accident, mistake or other cause a party fails to prove any material fact or document, the Court may, subject to such terms as may be just,
(a) on a trial without a jury, proceed with the trial subject to the fact or document being subsequently proved in such manner and at such time and place as the Court directs; and
(b) on a trial with a jury
(i) adjourn the trial and require the attendance of the jury upon a date to be fixed by the Court, or
(ii) if satisfied that the fact or document is one, formal proof of which could not be seriously controverted, direct the jury to find a verdict as if such fact or document had been proved before them, and the verdict shall take effect on such fact or document being subsequently proved as directed by the Court, and if not so proved, judgment shall be entered for the opposite party unless the Court otherwise orders.
General power of Court regarding evidence
46.09. The Court may, at a trial, make an order directing the method of proving any fact or document or of adducing any evidence if it appears that the order can be safely made having due regard to the interests of justice.
Revocation or variation of orders made under foregoing rules
46.10. An order made under the foregoing rules, including an order made on appeal, may be revoked or varied by a subsequent order of the Court made before or at the trial, and on such terms as are just.
Depositions: when receivable in evidence at trial
46.11. (1) No deposition shall be received in evidence at a trial unless
(a) the deposition was taken under rule 47.01; or
(b) it is admissible as provided in rule 30.13.
(2) A party intending to use any deposition in evidence at a trial shall, at least two days before the trial, give notice of the intention to do so to the other party.
(3) A deposition purporting to be signed by the person before whom it was taken shall be receivable in evidence without proof of the signature.
Use of evidence obtained on discovery
46.12. At a trial a party may use
(a) all or in any part of a deposition taken on an examination for discovery as provided by rule 30.13;
(b) any answer or part of any answer to an interrogatory as provided by rule 31.06;
(c) any medical report as provided by rule 34.05; and
(d) any report of a court expert as provided by rule 35.02.
Use of evidence taken in another proceeding
46.13. Evidence taken in another proceeding may, if admissible, be read
(a) on an ex parte application, by leave of the Court obtained at the time of making the application; and
(b) in any other case, upon the party desiring to use the evidence giving two days' previous notice to every opposing party of the intention to read the evidence.
Limitations on admissibility of documents
46.14. (1) Unless the Court orders, no document shall be admissible in evidence on behalf of a party unless
(a) reference to it appears in the pleadings, or in a list of documents filed and served under rule 32.01 by any party;
(b) it has been produced by any party or an officer, director or managing agent of a party on an examination for discovery;
(c) it has been produced by a witness who is not, in the opinion of the Court, under the control of the party; or
(d) it is a plan, photograph or model in respect of which the requirement of rule 46.06 has been satisfied.
Rule 46.14(1) does not apply to a document that is used solely as a foundation for, or as part of a question in cross-examination or re-examination.
Documents received in evidence under The Evidence Act
46.15. Documents and photographic prints shall be received in evidence as provided by The Evidence Act.
Evidence of consent of new trustee to act
46.16. A document purporting to contain the written consent of a person to act as trustee, and to bear his or her signature verified by some other person, shall be evidence of the consent.
Service of notice
46.17. Service of a document may, in the absence of an admission of service be proved by affidavit as provided in rule 6.14(1).
1986 c42 Sch D rule 46.17; 9/03 s8
Evidence at trial may be used at any subsequent stage of the proceeding
46.18. Any evidence taken at a trial may be used at any subsequent stage of the proceeding.
Order to produce documents at a trial
46.19. Where a person may be compelled to produce a document at a trial, the Court may order such person to attend at any time to produce the document.
Objections to questions
46.20. (1) When on a trial, an objection to a question asked a witness is sustained by the Court, the examining solicitor may, out of the hearing of a jury if there is one, state what the examining solicitor expects to prove by the answer of the witness, or what the witness would answer to the question excluded, and the Court may enter on the record a further statement which sets out the character of the evidence, the questions and answers or other evidence, the objection made and the decision thereon.
(2) When the decision of the Court is one admitting any evidence, despite a timely objection, the Court shall, on the request of any party or on its own motion, cause the objection and decision thereon to be entered on the record.
46.21. The Court may appoint an interpreter, fix the interpreter's reasonable compensation, and order the compensation to be paid out of funds, if any, provided by law for that purpose or by one or more of the parties as costs.
Determination of foreign law
46.22. (1) A party who intends to raise an issue concerning the law of another jurisdiction shall give notice of it in the pleadings or otherwise in writing at least ten days before the trial or hearing. The Court, in determining the law of another jurisdiction, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under Rule 46. The Court's determination shall be treated as a decision on a question of law.
(2) When a law of another jurisdiction cannot be determined in a proceeding, the Court may
(a) assume that the parties acquiesced in the application of the law of the forum and apply that law; or
(b) dismiss the proceeding and reserve the right of any plaintiff to recommence it.
46.23. (1) When a party desires to call any person as a witness at a trial, the party may serve the person with a subpoena in Form 46.23A requiring the person to attend at the time and place stated therein and, if required, to produce certain documents at the trial.
(2) A subpoena shall be issued by the Registrar after a copy is filed with the Court.
(3) The names of any number of persons may be included in a subpoena.
(4) No person is bound to appear pursuant to a subpoena or give evidence unless that person is paid or tendered the witness fee provided by these rules.
(5) The Court may make an order in Form 46.23B for the attendance of a witness who is in the custody of any other person, including the custodian of any penal institution.
1986 c42 Sch D rule 46.23; 36/14 s54
Amendment of a subpoena
46.24. (1) Where a subpoena has been issued but not served, the Registrar may, upon request, withdraw the original subpoena and issue a new subpoena.
(2) Where a subpoena has been served, it may be amended by filing an amended subpoena, endorsed with the words "amended and reissued", with the Court for reissue and serving a copy thereof on each person who has been served with the original subpoena.
Service of a subpoena
46.25. (1) A subpoena shall be served by serving a copy on the witness personally and at the same time tendering the witness fee to the witness, and if the witness so requests the original subpoena shall be shown to the witness.
(2) A subpoena shall be served within ten weeks after the date of its issue.
(3) Service of a subpoena and payment or tender of the witness fee may be proved by affidavit.
Duration of subpoena
46.26. A subpoena continues to have effect until the conclusion of the trial at which the attendance of the witness is required.
Subpoena of opposing party
46.27. A party who desires to call an opposing party as a witness at a trial shall serve the opposing party or the opposing party's solicitor at least five days prior to the trial with a subpoena and tender to the opposing party or the opposing party's solicitor, the proper witness fee, and if the opposing party does not attend the trial, the Court may enter judgment against the opposing party or postpone the trial upon such terms as it thinks just.
Failure to obey subpoena
46.28. Where a witness fails to obey a subpoena, the witness may be deemed to be in contempt of court and the Court may issue a warrant in Form 46.28A.
Application to trials of issues, references, etc.
46.29. The provisions of Rule 46 shall, with any necessary modification, apply to trials of issues on questions of fact or law, references, inquiries and assessments of damages as they apply to the trial of a proceeding.
46.30 (1) Unless a judge orders otherwise, where a party to a proceeding intends to submit a document in evidence which is, or is in part, written in a language other than English, the document must be accompanied by:
(a) a translation of the document into English; and
(b) an affidavit sworn or affirmed by the person that completed the translation, attesting to the translators qualifications and the accuracy of the translation.