INTRODUCTION
These instructions are directed to parties who are not represented by legal counsel. They briefly summarize procedures to be followed at trial in Rule 76 simplified procedure cases under the Rules of Civil Procedure.
The trial judge must be neutral and fair to both sides and cannot give legal advice. The judge can explain the procedure and will answer questions about the way the trial will be conducted, but you must determine how to present your case.
The steps in the trial described below will be taken by a lawyer where a party is represented, except where the plaintiff or defendant is testifying as a witness.
In every civil (non-criminal) case, the plaintiff has the burden of proof to establish on a balance of probabilities the allegations contained in the statement of claim. This means that the plaintiff must present evidence that will convince the judge that, more likely than not (i.e. greater than a 50% chance), it would be correct to rule in favour of the plaintiff.
A Rule 76 trial must be completed within five days.
The parties are required to present their evidence in written documents called affidavits instead of by calling witnesses to give their information in oral testimony. If a party is relying on expert opinions, they must be set out in writing and attached to an affidavit. Affidavits are written statements that are sworn or affirmed in front of a Commissioner for Taking Affidavits. An affirmation is a solemn promise to tell the truth. It has the same legal significance as a sworn oath.
THE PRE-TRIAL CONFERENCE
The Court rules require that the parties agree on a trial management plan before the pretrial conference takes place. The trial management plan must set out:
- A list of every witness, including every expert witness, whose affidavit evidence each party intends to present at
- The amount of time for each party to:
- make an opening statement,
- “read in” evidence from an examination for discovery (see rule 11),
- cross-examine deponents of the opposing party’s affidavits (i.e. question the persons that swore/affirmed affidavits supporting the opposing party’s case),
- re-examine a party’s own deponents, who were cross-examined by the opposing party, and
- make concluding arguments (closing submissions).
Court is typically in session five hours per day, so the total number of hours for the trial must be 25 hours or less.
At least five days before the pre-trial conference, you must file the following documents with the court:
- the trial management plan,
- your affidavit of documents and copies of specific documents that you will rely on to make your case,
- a copy of any expert affidavits on which you will be relying (with expert reports attached),
- a summary of your case (up to 3-pages long) that sets out the issues in your case and your position on each issue, and
- a trial management checklist (Form 76D).
If you have not been able to agree on the trial management plan in advance of the pre- trial, include your version of the trial management plan.
WHAT HAPPENS AT THE TRIAL?
Opening statement
The plaintiff may begin with an opening statement, which gives an overview of the plaintiff’s case, including what judgment or order the plaintiff wants the judge to make. What the plaintiff says in an opening statement is not itself evidence and cannot be relied upon to prove any of the facts that must be established in the action.
After the plaintiff’s opening statement, the defendant will have an opportunity to make an opening statement.
The defendant may choose to do so at that time or may decide to wait until the plaintiff’s case is complete and give an opening statement at the beginning of the defendant’s own case.
Evidence (or Information) Phase
The trial judge will read all of the affidavit evidence filed by the parties before the trial starts. This shortens the evidence phase of the trial because the party and the party’s witnesses do not also have to repeat that evidence in oral testimony before they are cross-examined.
The people who swore/affirmed the affidavits must be available at the courthouse at the time of the trial, in accordance with the trial management plan that is approved at the pre-trial, in order to be cross-examined by the opposing party.
The plaintiff puts forward their case first. At that time, the defendant may cross-examine the plaintiff and any other people who provided the affidavits submitted by the plaintiff.
There may also be a limited right to re-examination, discussed below.
The plaintiff may also “read in” evidence given by the defendant in an examination for discovery if examinations for discovery were conducted before trial. See below for more information about evidence obtained during examinations for discovery.
After the plaintiff has finished presenting his or her case, the defendant’s case begins. The defendant may make an opening statement (if it was not done previously). The plaintiff may then cross-examine the defendant and any other people who provided the affidavits submitted by the defendant. There may also be a limited right to re- examination, discussed below.
The defendant may also “read in” evidence given by the plaintiff at an examination for discovery.
Note that if you decide not to submit evidence about an issue in the case, an inference may be drawn against you that there is no evidence to contradict the other party’s position on that issue.
Submissions (Interpretation or Concluding Arguments) Phase
After all evidence has been presented, the plaintiff and defendant will have the opportunity to present concluding arguments. This is the time when you make submissions to the trial judge about the conclusions you believe the judge should reach based upon the evidence previously presented. This is when you have the opportunity to persuade the judge why he or she should decide the case in your favour.
Only a party or counsel can make a concluding argument, and not until the “submissions” phase of the trial, which comes after all evidence has been presented, including cross- examinations.
Some specific procedures that will be followed during the different phases of trial are highlighted below.
CROSS-EXAMINING WITNESSES ON THEIR AFFIDAVITS
The purpose of cross-examination is to obtain answers from the witness that will test the accuracy or truthfulness of the written evidence or bring out facts that may help your case.
All questions asked of witnesses must be relevant to the matters at issue in the case.
If new things come up during cross-examination that need to be explained, or if there are matters that need clarification as a result of the cross-examination, the party who put forward that witness may be able to re-examine the witness on those matters, but only to clarify ambiguities or explain new things raised for the first time on cross-examination.
EXHIBITS
You may wish to introduce documents or other evidence such as photographs or physical objects as exhibits. Photographs and document exhibits should be attached and referred to in one of the affidavits you file in your case. If your exhibit is a physical object, seek the consent of the other parties to have it introduced at trial and then ask the trial judge whether the object can be marked as a trial exhibit.
If you need to introduce a document or photograph that was not previously filed, bring at least four copies to the trial: one which will potentially be stamped as the exhibit; one for the judge; one for the opposing party; and one for your own use. Any documents to be given to the judge while in the courtroom are to be handed to the court clerk who will then pass them up to the judge.
You should provide opposing parties with advance notice of any exhibits that you intend to try to introduce at trial.
Remember that you should have attached all the documents you need to your affidavits. Depending on the document, you may also be able to introduce it if you are doing a cross- examination, but you should not assume that you will be able to do so.
OBJECTIONS
During cross-examination you or one of the other parties may object to a question that is being asked. The purpose of an objection is to have the trial judge decide whether the answer can become part of the evidence in case. The trial judge has the right to disallow any question that the judge believes is improper. If you object to a particular question being asked, stand up and let the trial judge know that you object. The judge will then ask you to state the reason for your objection and will ask the other parties to respond. Some examples of objections are that the evidence has nothing to do with the case (irrelevance) or that it is hearsay (described below). If the trial judge decides that your objection is justified, he or she will disallow that particular question. If the trial judge decides that the question is permitted, the witness must answer.
Similarly, if you object to the introduction of any document or other object that a party is trying to have marked as an exhibit, you may stand up and object to its admission by saying “objection, Your Honour” to the trial judge.
EVIDENCE
Hearsay Evidence
Hearsay is an out-of-court statement that is offered to prove the truth of its contents. The issue of hearsay arises when a witness attempts to testify about what someone else said. The person who made the statement may not actually be testifying at the trial.
For example, if someone said something to Mr. “B” outside of the courtroom and Mr. “B” then takes the witness stand to tell the court what the person said, Mr. “B” may not be allowed to share the information because it is hearsay.
Hearsay statements are generally excluded because a court relies upon the calling of witnesses who give their evidence under oath and who are subject to cross-examination by opposing parties. If the statement in question was not made by a witness available to be cross-examined, the truth of the statement can be called into question.
There are a number of exceptions to the hearsay rule. For example, hearsay evidence may be permitted if it meets the test of necessity and reliability. During the course of the trial, the trial judge may make rulings on whether hearsay evidence is permissible.
Expert Evidence
A party may file an expert report attached to an affidavit. A non-expert (or “lay”) witness can usually only swear an affidavit that describes facts which they have observed or events or circumstances they have experienced. An expert witness, such as a doctor, is allowed to give his or her opinion in the area of his or her established expertise.
The court rules have specific requirements for expert witnesses that the parties must comply with (Rule 53).
If you do not think that the “expert” put forward by another party is qualified, you may cross-examine the witness on his or her qualifications. If you agree that the expert is qualified to give an opinion, you still have the right to cross-examine the expert about the facts that he or she relied on in order to form the opinion and to question the opinion itself.
Evidence Obtained During Discovery Examination
If you have questioned the opposing party at an examination for discovery before the trial, you may be able to use questions and answers from the examination for discovery that help your case (Rule 31.11). Usually these will be admissions made by the other party that you will want to rely on to prove your case. Because the answer has been made under oath at the examination for discovery, you will not have to prove the point again at trial as long as it is “read in” to evidence.
To do this, you read out the relevant questions and answers from the examination for discovery transcript (i.e. not from your notes or from a summary of what was said at the examination for discovery) and those questions and answers become trial evidence. The evidence must be admissible, so the opposing party may make objections and the trial judge will decide what will be permitted. You should have the discovery transcript available, and the opposite party may request that additional questions and answers also be read in to evidence to qualify or explain the portions of the transcript that you have read in.
You can also use the examination for discovery transcript if a witness answers a question during cross-examination differently than he or she did at the discovery. You may prefer the discovery answer, or you may want to attack the credibility of the witness by showing that the witness gave different answers to the same question at different times. In that case, during cross-examination you may refer to the discovery transcript and question the witness about an answer given at discovery that contradicts his or her testimony at trial.
SUBMISSIONS OR CONCLUDING ARGUMENTS
After all cross-examinations, re-examinations and reading in of discovery evidence is completed, the trial judge will ask each party to give concluding arguments. This is the time for you to tell the judge what judgment or order you want the judge to make and why.
In your concluding arguments:
- summarize the law – briefly state the law you are relying on and refer to any case law that you believe supports your position;
- summarize evidence and how it relates to the law – refer to the evidence presented to the judge at trial that supports what it is that you are trying to prove;
- address any arguments made by the other party – explain why, in your view, the other party’s arguments should not be accepted by the judge; and
- conclude – restate the order that you are asking the judge to
It is important to note that the trial judge will make his or her decision only on the basis of the evidence presented at trial. The evidence includes the affidavit evidence filed, cross- examinations and re-examinations of witnesses, discovery evidence “read in”, and evidence that has been introduced and marked as exhibits. Statements made outside of the witness box, including statements made during concluding arguments, are not testimony and cannot be considered by the trial judge as evidence. These statements are your suggestions about how the trial judge should interpret the evidence.
Please Note:
- These are general instructions The parties are responsible for obtaining whatever legal advice and information that they made need to put forward their case at trial. Note that the trial judge and court staff cannot give anyone legal advice.
- The court will usually sit in the morning from 10:00 m. to about 1:00 p.m., with a 15-minute break at about 11:30 a.m. In the afternoon the court will usually sit from 2:15 p.m. until 4:30 p.m., with a short break between 3:00 p.m. and 3:15 p.m. These times may be varied or extended to accommodate witness availability. Plan to arrive at the courtroom door by 9:30 a.m. at the latest to avoid delaying the trial. Also be prepared to stay later than 4:30 p.m.
- You should summons or otherwise have available all the witnesses whose affidavits you put forward so that they are present for cross-examination, in order that the trial will be able to proceed without
- Although the case is proceeding to trial, you can still agree before or during the trial to settle your differences with other This is not part of the trial itself and the trial judge is not to be told about specific settlement negotiations. However, if you reach a settlement on any or all of the issues in dispute, put it in writing and present it to the trial judge. The judge will make a court order reflecting the terms of the settlement.
- If at any time during the trial you do not understand a question or terms which are used by anyone in the courtroom, please let the trial judge know.