29.1 Beginning and opposite parties
(cf SCR Part 34, rule 1; DCR Part 26, rule 1A; LCR Part 21, rule 1A)
Subject to any directions given by the court, for the purposes of this Part:(a) if the burden of proof on any issue lies on the plaintiff, the plaintiff is to be the beginning party and the defendant the opposite party, and(b) if the burden of proof on all the issues lies on the defendant, the defendant is to be the beginning party and the plaintiff the opposite party.
29.2 Applications, elections and requisitions for jury
(cf SCR Part 34, rule 3; DCR Part 12, rule 5)
(1) Applications generally
Except as provided by subrule (3), an application for proceedings to be tried by jury must be made by notice of motion.(2) Filing of requisitions for juries
For the purposes of section 85 of the Supreme Court Act 1970 and section 76A of the District Court Act 1973, a requisition for a jury must be filed at the same time as the notice of motion referred to in subrule (1) is filed.(3) Elections under section 21 of Defamation Act 2005
A party who intends to make an election under section 21 of the Defamation Act 2005 to have proceedings for defamation tried by jury (an election for trial by jury) must file a notice of intention to do so.(4) Unless the court otherwise orders, an election for trial by jury must be made, by means of an announcement in open court before a judicial officer, at the first hearing that takes place more than 3 days after service on the active parties of the notice of intention to make the election.(4A) A party who makes an election for trial by jury must, at the hearing referred to in subrule (4), produce to the court a copy of the notice of intention filed under subrule (3).(5) At a hearing referred to in subrule (4), any party may, without notice of motion having been filed or served, apply to the court for an order under section 21 (3) of the Defamation Act 2005 that the trial not be by jury and, if such an application is made, the court may determine the application on the day it is made or on any later day fixed by the court.(6) Time for filing notice of motion or intention
Unless the court otherwise orders, a notice of motion under subrule (1) or notice of intention under subrule (3) must be filed:(a) if the notice is filed by the plaintiff:(i) within 56 days after service on the defendant of the statement of claim, or(ii) if a defence is served on the plaintiff within that period, within 28 days after service of the defence on the plaintiff, or(b) if the notice is filed by the defendant:(i) within 28 days after service on the defendant of the statement of claim, or(ii) if, pursuant to rule 14.3, the court directs some other date for the filing of a defence, within 28 days after the date fixed by the court’s direction.
(cf SCR Part 34, rule 4)
The court may make such order as it thinks fit for fixing the time and place of trial.
29.4 Trial to deal with all questions and issues
(cf SCR Part 33, rule 4)
Unless the court orders otherwise, proceedings are to be listed for trial generally, that is, for hearing of all questions and issues arising on every claim for relief in the proceedings.
29.5 Conduct of trials generally
(cf SCR Part 34, rule 6 (1))
The court may give directions as to the order of evidence and addresses and generally as to the conduct of the trial.
29.6 Order of evidence and addresses
(cf SCR Part 34, rule 6; DCR Part 26, rule 6; LCR Part 21, rule 4)
(1) Subject to these rules and to any direction of the court:(a) if the only parties are one plaintiff and one defendant, and there is no statement of cross-claim or cross-summons, the order of evidence and addresses is to be as provided by this rule, and(b) in any other case, the order of evidence and addresses is to be as provided by this rule, subject to any modifications that the nature of the case requires.(2) The beginning party may make an address opening his or her case and may then adduce evidence.(3) If, at the conclusion of the beginning party’s evidence, no document or thing has been admitted in evidence on tender by the opposite party, the opposite party may elect to adduce evidence or not to adduce evidence.(4) If the opposite party elects to adduce evidence:(a) the opposite party may make an opening address before adducing evidence, and(b) after adducing evidence, the opposite party may make an address closing his or her case, and(c) after the close of the opposite party’s case, the beginning party may make an address closing his or her case.(5) If the opposite party elects not to adduce evidence:(a) the beginning party may make an address closing his or her case, and(b) after the close of the beginning party’s case, the opposite party may make an address stating his or her case.
29.7 Procedure to be followed if party is absent
(cf SCR Part 5, rule 9, Part 13, rule 5A, Part 34, rule 5; DCR Part 26, rule 5A; LCR Part 21, rule 2)
(1) This rule applies when a trial is called on.(2) If any party is absent, the court:(a) may proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or(b) may adjourn the trial.(3) If, in relation to a liquidated claim, the plaintiff appears, but a defendant does not appear, the court may, without proceeding to trial, give judgment against that defendant on evidence of:(a) the amount then due to the plaintiff in respect of the cause of action for which the proceedings were commenced, and(b) any payments made or credits accrued since the commencement of the proceedings in reduction of the amount of the plaintiff’s claim or costs.(4) If, in relation to any proceedings, the defendant appears, but the plaintiff does not appear, the court may dismiss the proceedings.(5) Subrules (3) and (4) do not limit the court’s powers under subrule (2).
29.8 Dismissal of proceedings on plaintiff’s application
(cf SCR Part 34, rule 6A; DCR Part 26, rule 6A; LCR Part 21, rule 5 (1))
(1) On the application of the plaintiff in any proceedings, the court may make an order for the dismissal of the proceedings to the extent to which they concern:(a) the whole or any part of the plaintiff’s claim for relief, and(b) any cause of action relevant to that claim or part of the claim.(2) Subject to subrule (3), such an order may be made at any time.(3) In the case of a trial with a jury, such an order may be made only if the application for the order is made before the jury gives a verdict.
29.9 Dismissal of proceedings on defendant’s application
(cf SCR Part 34, rule 7; DCR Part 26, rule 7; LCR Part 21, rule 5 (2)–(7))
(1) A defendant in proceedings in which the plaintiff is the beginning party may apply to the court for an order:(a) for the dismissal of the proceedings, or(b) for the dismissal of the proceedings to the extent to which they concern any cause of action relevant to the plaintiff’s claim for relief against that defendant,on the ground that, on the evidence given, a judgment for the plaintiff could not be supported.(2) Such an application may be made at any time after the conclusion of the evidence for the plaintiff in his or her case in chief.(3) The plaintiff may argue, or decline to argue, the question raised by the application.(4) The court may not make an order under this rule unless the plaintiff argues the question raised by the application and the defendant satisfies the court that, on the evidence given, a judgment for the plaintiff could not be supported.(5) If the plaintiff declines to argue the question raised by the application, or if the defendant fails to satisfy the court that, on the evidence given, a judgment for the plaintiff could not be supported, the defendant:(a) may adduce evidence or further evidence, or(b) may make an application under rule 29.10.(6) If fewer than all defendants apply to the court under subrule (1), the court must not deal with any such application before the conclusion of the evidence given for all parties.
29.10 Judgment for want of evidence
(cf SCR Part 34, rule 8; DCR Part 26, rule 8; LCR Part 21, rule 6)
(1) An opposite party may apply to the court to give judgment for the opposite party, either generally or on any claim for relief in the proceedings, on the ground that, on the evidence given, a judgment for the beginning party could not be supported.(2) Such an application may be made at any time after the conclusion of the evidence for the beginning party in his or her case in chief.(3) The court may not give judgment under this rule unless the opposite party satisfies the court that, on the evidence given, a judgment for the beginning party could not be supported.(4) If the opposite party fails to satisfy the court that, on the evidence given, a judgment for the beginning party could not be supported, the opposite party may not adduce evidence or further evidence in the proceedings generally or on the claim for relief concerned, as the case may be, except by leave of the court.(5) If not all opposite parties apply to the court under subrule (1), the court must not deal with any such application before the conclusion of the evidence given for all parties.
29.11 Judgment despite verdict, finding or assessment
(cf SCR Part 34, rule 8A)
If, at a trial with a jury, a verdict is given or a finding or assessment is made, the court may give judgment as it thinks fit despite the verdict, finding or assessment.
29.12 Death of party before judgment
(cf SCR Part 34, rule 10)
(1) If a party dies after the verdict or finding on the questions of fact, the court may give judgment, and judgment may be entered, despite the death.(2) Subrule (1) does not limit the court’s power to make orders for the joinder, removal or re-arrangement of parties under Part 6.
29.13 Record of trial to be kept
(cf SCR Part 34, rule 9; DCR Part 26, rule 8A)
The associate, or other officer of the court present at the trial, is to maintain and complete a record of the trial.
29.14 Court may refuse to hear proceedings if fees unpaid
(cf Supreme Court Regulation 2000, clause 12; District Court Regulation 2000, clause 9A)
The court may refuse to hear, or to continue to hear, proceedings in respect of which a hearing allocation fee or hearing fee remains due and unpaid.
29.15 Statement in open court about settled defamation proceedings
(cf SCR Part 67, rule 21; DCR Part 49, rule 19)
With the leave of the court, a party to proceedings for defamation that have been settled may make in open court such statement about the proceedings as has been approved by the court in private.
29.16 Offers to make amends for defamatory publications: determination of questions
(cf SCR Part 67, rule 22; DCR Part 49, rule 20)
The court may hear an application and determine any question under section 9F (2) of the Defamation Act 1974 or section 15 (3) of the Defamation Act 2005 in the absence of the public.