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There are several important things to do before a trial takes place. The parties must disclose relevant documents to each other. The parties can also be questioned by each other to clarify the issues. You must also obtain a trial date and make sure your witnesses appear for trial.
Part 9 of the King’s Bench Rules deals with trials.
Before your trial, it is important to be familiar with evidence you will rely on to prove your case. Evidence generally includes documents and witness testimony. You will also need to research the law that applies to your case to assist with the arguments you will make.
For every document and witness you plan to use, you should know what part they play in proving your case. If possible, you should meet with each witness to review the testimony they will give. You should also make note of the points you want to make regarding evidence the other party will be providing to the court.
The rules about disclosure are set out in subdivision 2 of Part 5 of the King’s Bench Rules.
Generally, you cannot use documents to support your case at trial unless they have been disclosed to the other party. To disclose documents, each party must prepare an affidavit of documents using Form 5-6 of the King’s Bench Forms. This affidavit must inform the other party about all documents you have or once had that are relevant to the case. Even if you have never had any documents relevant to the case, you must still prepare this affidavit stating that you have no documents.
Documents that must be listed include those physically in your possession as well as ones you have the right to obtain without anyone's permission. For example, your medical records may be held by your doctor, but you have the right to obtain them. You also have to list relevant documents you had at one time but no longer have. You need to say why you no longer have them and where they are now if you know.
Certain documents do not need to be disclosed because they are privileged. You can object to disclosing these documents. An example of a privileged document is a letter to you from your lawyer about the matter. You must still list this document and say why you object, but you do not need to show it to the other party. If a document is not privileged, it must be disclosed even if it hurts your case.
You must give the other party a date and time when they can look at the documents that you do not object to disclosing. This must be within 10 days of when you serve the affidavit of documents. The other party will come to the address you gave for service unless you both agree on another place. If the documents are in constant use, the other party will need to come to where they are usually kept to view them.
The rules about disclosure are set out in subdivision 3 of Part 5 of the King’s Bench Rules.
The King’s Bench Rules allow each party to ask the other party questions while under oath. This is called questioning. People who are not one of the parties to an action can also be questioned, but only with a court order.
Understanding more about the other party’s case can help you to prepare for trial. It can also help you and the other party reach a settlement. Questioning can be costly, however. Parties must pay a fee to have a court reporter present which can cost $1,000 per day or more. If a party refuses to be questioned, their claim or defence may be struck out.
Unlike disclosure of documents, you can decide whether you want or need to question the other party. Written questions can be used instead of or in addition to in-person questioning. You can have the other party answer up to 25 written questions in writing unless they agree otherwise.
Unless you and the other party agree or the court orders it, you cannot question the other party until you have served your affidavit of documents. If you are starting an action, you must wait until the other party serves the statement of defence on you or the time for serving it has passed. If you are defending an action, you can question the other party once you have filed a statement of defence.
You and the other party can set up the questioning by agreeing to a date and time to appear before a court reporter. If the parties do not agree, one party can apply for an appointment for questioning. Form 5-23 of the King’s Bench Forms is used for this. Once it is issued by the court, it must be served on the other party at least 10 days before the date of questioning. Alternatively, the other party can be served with a subpoena. In either case, witness fees must be provided to the other party.
To prepare for questioning, both parties must inform themselves about any relevant documents and bring those with them. The parties must tell the other party the names and addresses of anyone who might reasonably be expected to have relevant information, if asked.
To prepare for questioning:
The parties and their lawyers, if they have one, meet at a court reporter’s office. There is no judge present. Each side can ask the other side to answer questions under oath about the dispute. The court reporter records the questions and answers. If a party objects to answering a question, the objection is recorded and the court can decide if the party has to answer.
If a person being questioned does not know the answer right away, they can sign an undertaking to provide the information later. If you sign an undertaking, you must follow through and provide the answer later. Questioning is a chance for you to learn about the other party’s case and the facts they must prove. If a person agrees to a fact during questioning, they do not need to be called as a witness at the trial. Their statement can be read from the transcript of the questioning.
If there are any witnesses that you think may not appear voluntarily to testify in your case, you need to serve them with a subpoena. If you do not take this step, the court could refuse to adjourn the case because your witness is not there.
You first need to request that the court issue a subpoena by using Form 9-7 of the King’s Bench Forms. On this form, you state whether you want a subpoena ad testificandum or a subpoena duces tecum. A subpoena ad testificandum is used if you need the witness to appear and give testimony. A subpoena duces tecum is used if you need the witness to testify and bring certain documents. After you have filed the request for a subpoena, you fill out Form 9-8A, for a subpoena ad testificandum, or Form 9-8B, for a subpoena duces tecum. You then bring it to the court to be issued.
Witnesses may testify by phone if the parties consent or the court orders that they can testify by phone.
The issued subpoena and a witness fee must be served on the witness in person. The amount of the witness fee is set out in the Tariff of Costs. A witness who is not a professional or a consultant is currently entitled to $50 per day or part of the day they attend. If the witness has to travel, they are also entitled to expenses for travel, accommodation and meals at the rate that is approved for members of the Public Service.
The local registrar schedules trials. They will take your schedule as well as the other party’s schedule into account when assigning a trial date. Making the best use of the court’s time is the main consideration, however. Unless the court orders otherwise, you need to accept the trial date you are given.
You cannot be assigned a trial date until after the pre-trial conference is held.
If both parties agree, the parties may ask the registrar to move the trial date as long as the trial is not scheduled to take more than 5 days. In all other cases, only the court can change the trial date. If you need to change the date, make an application to the court and explain your reasons in an affidavit.
For information about King's Bench trials see Civil Trials.
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