Physical Examination and Inspection
(1) Where the physical or mental condition of a person is in issue in a proceeding, the court may order that the person submit to examination by a medical practitioner or other qualified person, and if the court makes an order, it may make
(a) an order respecting any expenses connected with the examination, and
(b) an order that the result of the examination be put in writing and that copies be made available to interested parties.
(2) The court may order a further examination under this rule.
(3) A person who is making an examination under this rule may ask any relevant question concerning the medical condition or history of the person being examined.
(4) Where the court considers it necessary or expedient for the purpose of obtaining full information or evidence, it may order the production, inspection and preservation of any property and authorize samples to be taken or observations to be made or experiments to be conducted on or with the property.
(5) For the purpose of enabling an order under this rule to be carried out, the court may authorize a person to enter upon any land or building.
(6) Rule 27 (26) applies to examinations and inspections ordered under this rule.
(1) By delivery of a notice to admit in Form 23, a party may request any other party to admit, for the purposes of a proceeding only, the truth of a fact or the authenticity of a document specified in the notice.
(2) Unless the court otherwise orders, the truth of a fact or the authenticity of a document specified in the notice to admit shall be deemed to be admitted, for the purposes of the proceeding only, unless, within 14 days, the party receiving the notice delivers to the party giving the notice a written statement that
(a) specifically denies the truth of that fact or the authenticity of that document,
(b) sets forth in detail the reasons why the party cannot make the admission, or
(c) states that the refusal to admit the truth of that fact or the authenticity of that document is made on the grounds of privilege or irrelevancy or that the request is otherwise improper, and sets forth in detail the reasons for the refusal.
(3) Unless the court otherwise orders, a copy of a document specified in a notice to admit shall be attached to the notice when it is delivered.
(4) Where a party unreasonably denies or refuses to admit the truth of a fact or the authenticity of a document, the court may order the party to pay the costs of proving the truth of the fact or the authenticity of the document and may award as a penalty additional costs, or deprive a party of costs, as the court thinks just.
(5) A party is not entitled to withdraw
(a) an admission made in response to a notice to admit,
(b) a deemed admission under subrule (2), or
(c) an admission made in a pleading
except by consent or with leave of the court.
(6) An application for judgment or any other application may be made to the court using as evidence
(a) admissions of the truth of a fact or the authenticity of a document made
(i) if in an affidavit or pleading filed by a party,
(ii) in an examination for discovery of a party or a person examined for discovery on behalf of a party,
(iii) in response to a notice to admit, or
(b) admissions of the truth of a fact or the authenticity of a document deemed to be made under subrule (2)
and the court may, without waiting for the determination of any other question between the parties, make any order it thinks just.
(7) Each party shall, not less than 45 days before the day fixed for the trial to begin, deliver to each of the other parties adverse in interest, a notice in Form 21 requesting those other parties to admit those facts, set out in the notice, that the party delivering the notice considers are not in dispute.
(8) Where a party
(a) fails to deliver a notice under subrule (7), or
(b) unreasonably refuses to admit the truth of a fact contained in a notice to admit delivered under that subrule,
the court may, on application, award additional costs against that party or deprive that party of costs, as the court thinks just.
(9) In respect of proceedings commenced before September 1, 1990, subrules (7) and (8) apply only to proceedings where notice of trial had been issued before that date.
Inquiries, Assessments and Accounts
(1) At any stage of a proceeding the court may direct an inquiry, assessment or accounting to be held by a master, registrar or special referee.
(2) The court may direct that the result of an inquiry, assessment or accounting held by a master, registrar or special referee be certified by that person, and the certificate, when filed, shall be binding on the parties to the proceeding.
(3) Where the court does not direct that the result of an inquiry, assessment or accounting be certified, then the result of the inquiry, assessment or accounting shall be stated in the form of a report and recommendation to the court.
(4) On application by a party, the court may vary or confirm the recommendation or remit the matter.
(5) A master, registrar or special referee may hold a hearing at a convenient time and place, may adjourn it from time to time, may administer oaths, take evidence, direct production of documents and give general directions for the conduct of the hearing.
(6) A party proceeding with an inquiry, assessment or accounting shall take out an appointment in Form 24 and shall serve notice of it upon all parties of record or as directed by the court.
(7) A party to a proceeding in which an inquiry, assessment or accounting is held may subpoena any person, including a party, to give evidence at the hearing and to produce documents.
(8) A master, registrar or special referee shall state the result of an inquiry, assessment or accounting in the form of a certificate or report and recommendation as directed, with or without reasons, and shall provide the party who took out the appointment with the certificate or report and recommendation and the party shall file it and deliver a copy to all persons served with notice under subrule (6).
(9) Before the master, registrar or special referee has concluded a hearing he or she may, in a summary or other manner, ask the opinion of the court on any matter arising in the hearing.
(10) A person may apply by petition for the furnishing of accounts by the executor or administrator of an estate, a trustee, a receiver, a liquidator, guardian or partner.
(11) The court may give special directions as to the manner in which an inquiry, assessment or accounting is to be taken or made, and the directions may include
(a) the manner in which the inquiry, assessment or accounting is to be prosecuted,
(b) the evidence to be adduced in support,
(c) the parties required to attend all or any part of the proceedings,
(d) the time within which each proceeding is to be taken, and
(e) a direction that persons whose interest can be classified shall constitute a class and be represented by the same solicitor and, where the persons cannot agree on the solicitor to represent them, the court may appoint the solicitor to represent them,
and the court may fix a time for the further attendance of the parties.
(12) The court may vary or rescind a direction given under subrule (11).
(13) Where an account is directed to be taken, unless the court otherwise orders, the accounting party shall make out that party's account and verify it by an affidavit to which the account shall be exhibited. The items on each side of the account shall be numbered consecutively, and the accounting party shall file the affidavit and the account and deliver copies to all parties of record.
(14) A party who alleges that there are errors or omissions in an account shall file and deliver to all parties of record a notice thereof with brief particulars.
(15) Where an accounting is directed, the certificate or report and recommendation shall state the result of the accounting and must specify which of the items have been disallowed or varied and what additions or deletions have been made by way of surcharge or otherwise.
(16) Where in a proceeding relating to
(i) the administration of the estate of a deceased person,
(ii) the execution of a trust, or
(iii) the sale of any property,
the court makes an order which directs any inquiry, assessment or accounting to be taken or made, the court may direct notice of the order in Form 25 to be served on any person interested in the estate or under the trust or in the property, and any person served with notice of an order in accordance with this rule shall, subject to subrule (18), be bound by the order to the same extent as the person would have been if the person had originally been made a party to the action.
(17) The court may dispense with service on a person in any case where it appears it is impractical for any reason to serve the person and may also order that person shall be bound by any order made to the same extent as if the person had been served with notice of the order, and the person shall be bound accordingly except where the order was obtained by fraud or non-disclosure of material facts.
(18) A person served with notice, within 28 days after service of the notice on him, without entering an appearance, may apply to the court to vary or rescind the order.
(19) A person served with notice may, after entering an appearance in Form 7, take part in the proceeding.
(1) The parties to a proceeding may concur in stating a question of law or fact, or partly of law and partly of fact, in the form of a special case for the opinion of the court.
(2) The court may order a question or issue arising in a proceeding, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be stated in the form of a special case.
(3) A special case must
(a) be divided into paragraphs numbered consecutively,
(b) state concisely such facts and set out or refer to such documents as may be necessary to enable the court to decide the questions stated, and
(c) be signed by the parties or their solicitors.
(4) On the hearing of a special case, the court and the parties may refer to any document mentioned in the special case, and the court may draw from the stated facts and documents any inference, whether of fact or law, that might have been drawn from them if proved at a trial or hearing.
(5) With the consent of the parties, on any question in a special case being answered, the court may grant specific relief or order judgment to be entered.
Proceedings on a Point of Law
(1) A point of law arising from the pleadings may, by consent of the parties or by order of the court, be set down by praecipe for hearing and disposed of at any time before the trial.
(2) Where, in the opinion of the court, the decision on the point of law substantially disposes of the whole action or of any distinct claim, ground of defence, set-off, counterclaim or reply, the court may dismiss the action or make any order it thinks just.
(1) A party, having delivered or received a notice of trial, may request the holding of a pre-trial conference at a time and place to be fixed by the registrar.
(2) On a request being received or on his or her own initiative at any stage of an action, a judge or master may direct that a pre-trial conference, mini-trial or settlement conference be held.
(3) A pre-trial conference shall be attended by the solicitors for the parties, or the parties themselves, and shall consider
(a) the simplification of the issues,
(b) the necessity or desirability of amendments to pleadings,
(c) the possibility of obtaining admissions which might facilitate the trial,
(d) the quantum of damages,
(e) fixing a date for the trial, and
(f) any other matters that may aid in the disposition of the action or the attainment of justice.
(4) At a pre-trial conference, the judge or master may, whether or not on the application of a party, order that
(a) the trial, or part of it, be heard by the court without a jury, on any of the grounds set out in Rule 39 (27),
(b) the pleadings be amended or closed within a fixed time,
(c) a party file and deliver, within a fixed time, to each other party as specified by the judge, a list of documents or an affidavit verifying a list of documents in accordance with the directions that the judge or master may give,
(d) interlocutory applications be brought within a fixed time or by a specified date,
(e) a statement of agreed facts be filed within a fixed time or by a specified date,
(f) a general application for directions be brought within a fixed time or by a specified date,
(g) all procedures for discovery be conducted in accordance with a schedule and plan that the court directs, and the plan may set limitations on those discovery procedures,
(h) the obligation to pay conduct money to any of the parties or persons to be examined be allocated in the manner specified in the order,
(i) a party deliver a written summary of the proposed evidence of a witness within a fixed time or by a specified date,
(j) the parties attend a mini-trial or a settlement conference,
(k) experts who have been retained by the parties confer, on a without prejudice basis, to determine those matters on which they agree and to identify those matters on which they do not agree, and
(1) the action be set for trial on a particular date or on a particular trial list, subject to the approval of the Chief Justice,
and, on making an order under this subrule, the judge or master may give other directions that he or she thinks just or necessary.
(5) Where the judge or master orders or directs that the parties attend a mini-trial, the parties shall attend before a judge or master who shall, in camera and without hearing witnesses, give a non-binding opinion on the probable outcome of a trial of the proceeding.
(6) Where the judge or master orders or directs that the parties attend a settlement conference, the parties shall attend before a judge or master who shall, in camera and without hearing witnesses, explore all possibilities of settlement of the issues that are outstanding.
(7) A judge who presides at a pre-trial conference is not seized of the action, and a trial of the action may be heard by that judge or by any other judge.
(8) A judge who has heard a mini-trial or who has attended at a settlement conference shall not preside at the trial, unless all parties of record consent.
Discontinuance and Withdrawal
(1) At any time before an action is set down for trial, a plaintiff may discontinue it in whole or in part against a defendant by filing and delivering a notice of discontinuance in Form 26 to each party of record.
(2) After an action has been set down for trial, a plaintiff may discontinue it in whole or in part against a defendant with the consent of all parties of record or by leave of the court.
(3) A defendant may withdraw his or her defence or any part of it with respect to any plaintiff at any time by filing a notice of withdrawal in Form 27 and delivering a copy of it to each party of record.
(4) Subject to subrule (2), a person wholly discontinuing an action or wholly withdrawing his defence against a party shall pay the costs of that party to the date of delivery of the notice of discontinuance or withdrawal and if a plaintiff, liable for costs under this rule, subsequently brings a proceeding for the same or substantially the same claim before paying those costs, the court may order the proceeding to be stayed until the costs are paid.
(5) Where a plaintiff discontinues the whole or any part of an action in which a person has been joined as a third party, the third party, if the discontinuance disposes of the claim against the third party, is entitled to costs and may apply to the court for a direction as to who should pay them.
(6) A plaintiff's right to recover costs from a defendant under subrule (4) does not preclude the plaints from recovering other costs properly incurred.
(7) Where a defendant wholly or partly withdraws his defence under this rule, the plaintiff may proceed under Rule 25 as though the defendant had delivered no statement of defence or only a partial statement of defence.
(8) Unless otherwise ordered, the discontinuance of an action in whole or in part is not a defence to a subsequent proceeding for the same or substantially the same cause of action.
(9) This rule applies to a counterclaim, a third party proceeding and a petition.
Payment Into and Out of Court
(1) At any time before the commencement of the trial, a defendant may pay into court a sum of money in satisfaction of the whole or part of a claim for which the plaintiff sues.
(2) Where money belonging to a defendant is paid into court pursuant to a garnishing order or other order of the court, the defendant may allocate all or part of it as a payment into court under this rule.
(3) Money paid into court shall remain in court subject to further order unless the plaintiff elects to accept it under this rule.
(4) At any time before the commencement of the trial a third party may pay into court a sum of money in satisfaction of the whole or part of the defendant's claim against that third party.
(5) Payment of money into court shall not be deemed an admission of liability.
(6) Where a tender before action is pleaded, the sum alleged to have been tendered shall be paid forthwith into court.
(7) When a party pays moneys into court the party shall file a notice of payment in Form 28 and shall forthwith deliver a copy to each party of record, and, unless otherwise ordered by the court, the notice must specify the party for whom and the claim in respect of which payment in is made, and may specify the sum paid in respect of each claim.
(8) Subject to subrules (9) and (10), where money is paid into court under this rule, except under subrule (6), a party, at any time before the commencement of the trial, may accept and take out of court the whole sum or any one or more of the specified sums paid in, in satisfaction of that party's claim or claims, by filing and delivering to each party of record a notice in Form 29.
(9) Money paid into court by a third party shall not be taken out of court by a defendant without leave of the court.
(10) If a party is not personally entitled to the money, the money may only be accepted and paid out by leave of the court.
(11) If the defendant does not allege tender before action and the plaintiff takes the money in satisfaction of all the plaintiff's claims, the plaintiff may assess costs reasonably incurred up to 7 days after delivery to the plaintiff of a copy of the notice under subrule (7), and the defendant may assess costs reasonably incurred after the expiry of 7 days after delivery to the plaintiff of the notice.
(12) Unless the court otherwise orders, where the defendant alleges tender before action and at the trial succeeds on that defence, the defendant may assess costs and the amount allowed the defendant shall be paid out of the money in court and the balance shall be paid to the plaintiff.
(13) Unless the court otherwise orders, where the defendant alleges tender before action and the plaintiff elects to take the money in satisfaction, the defendant may assess costs and the amount allowed the defendant shall be paid out of the money in court and the balance shall be paid to the plaintiff.
(14) Subject to subrule (15), no party sued jointly with another party may pay money into court except jointly with that other party.
(15) In an action for libel or slander against several defendants sued jointly, a defendant may pay money into court and the plaintiff, at any time before the commencement of the trial, may elect to accept the sum paid into court in satisfaction of the plaintiff's claim against that defendant by filing and delivering to each party of record a notice in Form 28.
(16) Where money has been accepted under this rule, all further proceedings in the action or in respect of the specified claim, or part of the claim, except for recovery of costs, are stayed.
(17) Where the plaintiff proceeds with an action and recovers an amount equal to or less than the amount paid into court,
(a) the plaintiff may assess costs reasonably incurred up to delivery to the plaintiff of a copy of the notice under subrule (7) and, provided the notice was delivered at least 7 days before the commencement of the trial, the defendant may assess costs reasonably incurred after delivery of the notice to the plaintiff,
but if the notice was delivered less than 7 days before the commencement of the trial, the costs of any steps taken by the parties subsequent to delivery shall be in the discretion of the court, and
(b) the amount paid in shall be applied in satisfaction of the plaintiff's judgment after set-off of the defendant's costs, if any, and any balance shall be repaid to the defendant.
(18) Where the plaintiff proceeds with an action and judgment is given for the defendant in respect of the claim, the whole amount paid in by the defendant shall be repaid to the defendant.
(19) Where the defendant proceeds with his third party proceeding and recovers an amount equal to or less than the amount paid into court,
(a) the defendant may assess costs reasonably incurred up to delivery to the defendant of notice under subrule (7), and provided the notice was delivered at least 7 days before the commencement of the trial, the third party may assess costs reasonably incurred after the delivery of the notice to the defendant, but if the notice was delivered less than 7 days before the commencement of the trial, the costs of any steps taken by the parties subsequent to that delivery shall be in the discretion of the court, and
(b) the amount paid in shall be applied in satisfaction of the defendant's judgment after set-off of the third party's costs, if any, and any balance shall be repaid to the third party.
(20) Where the defendant proceeds with his third party proceeding and judgment is given for the third party in respect of the claim, the whole amount paid in by the third party shall be repaid to the third party.
(21) Except in an action to which a defence of tender before action is pleaded, no statement of the fact that money has been paid into court shall be inserted in the pleadings and no communication of that fact shall be made to the court or a jury until all questions of liability and amount of the debt or damages have been decided.
(22) Where a counterclaim is made, a defendant may offer to surrender his counterclaim, or may pay into court a sum of money and offer to surrender the counterclaim, in satisfaction of one or more of the plaintiff's claims in settlement of the action and counterclaim.
(23) Where a counterclaim is accepted in satisfaction or part satisfaction, the counterclaim is stayed.
(24) Subrules (1) to (21) apply to the offer to surrender a counterclaim as though it were payment of money into court.
(25) A plaintiff in an action for libel or slander who takes money out of court may apply to the court for leave to make in open court a statement in terms approved by the court.
(26) Where provision is made in this rule for payment out to a party, the money may, with the party's written authorization, be paid to the party's solicitor.
(27) In special circumstances the court may order that payment out of moneys in court be made to the solicitor for a party entitled to the moneys, rather than to the party.
(28) Where money is paid into court to the credit of an infant, a copy of the birth certificate of the infant, or other proof to the satisfaction of the registrar of the name and date of birth of the infant, shall be filed, unless the registrar dispenses with the filing.
(29) In support of an application for payment out of money paid in under subrule (28), the applicant shall file a declaration in Form 30.
(30) In this rule, a sum of money paid into court in satisfaction of the whole or part of a claim includes interest under the Court Order Interest Act, where applicable, to the date of payment in, but does not include costs.
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