INTRODUCTION
These instructions are directed to parties who are not represented by legal counsel. They briefly summarize procedures to be followed at trial. There are additional procedures that only apply to jury trials, which are not described in this document.
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.
PHASES OR SECTIONS OF 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
During this stage of the trial, the parties may call witnesses to give evidence and present documents to establish the facts they feel the trial judge needs to know in order to decide the case.
The plaintiff will call witnesses first. The defendant may cross-examine each of the plaintiff’s witnesses.
After the plaintiff’s witnesses have testified, the defendant (may make an opening statement and) will call their witnesses.
Following presentation of the defendant’s evidence, the plaintiff has the right to call reply evidence to respond to any new matters which arise in the defendant’s case. However, the plaintiff should not “save” witnesses to testify in reply after the defendant’s evidence – the right to call a witness in reply is limited, and only occurs if the defendant raises something which was not addressed by the plaintiff’s witness.
You decide who will take the witness stand and testify in support of your own case. You may testify yourself, and may also have other persons give evidence on your behalf. You must have your witnesses available at the courthouse and ready to proceed.
While you are a witness, you will be testifying just like any other person and you will not be allowed to argue your case. This means that while you are the witness you will only be able to provide factual information, and cannot interpret the evidence, explain the legal issues or indicate why you feel the court should make a decision in your favour. That type of presentation is “legal argument”, and comes later, during the “submissions phase” of the trial.
The parties may also “read in” evidence given by the opposite party at an examination for discovery.
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.
QUESTIONING WITNESSES
Direct Examination, Cross-examination and Re-examination
Before each witness testifies he/she will be required to take an oath or affirm to tell the truth. The plaintiff will ask each of the plaintiff’s witnesses questions. When a party questions their own witness, it is called direct examination.
During direct examination of your witnesses you are not allowed to ask a witness leading questions. A leading question is one that suggests the answer.
Examples:
Non-leading Question: What is your name? (The answer is not suggested in the question).
Leading Question: Your name is John Doe, isn’t it? (The answer is suggested in the question).
All questions asked of witnesses must be relevant to the matters at issue in the case.
If a party who is not represented by counsel is a witness, there will not be a question and answer format during direct examination; instead the party will give a narrative statement of relevant facts.
If you decide not to call evidence about an issue in the case, an inference may be drawn against you that there is nothing to rebut the other party’s position on that issue.
After the plaintiff has finished questioning a plaintiff’s witness, the defendant will have an opportunity to cross examine the witness. The purpose of cross examination is to obtain answers from the witness that will test the accuracy or honesty of the evidence, or bring out facts that may help the defendant. During cross examination, leading questions (which suggest an answer) are permitted.
A plaintiff who testifies as a witness may be cross examined by the defendant in the same manner as any of the other plaintiff’s witnesses.
Responses on cross examination have the same weight as answers given in direct examination.
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.
After the plaintiff has finished presenting his or her case, the defendant’s case begins. The same procedure is followed, except that the defendant will first ask questions of each of the defendant’s witnesses in direct examination and the plaintiff will be entitled to cross examine each of those witnesses. The defendant will also have the right to re-examine to clarify matters which arise during cross examination.
EXHIBITS
You may wish to introduce documents or other evidence such as photographs or physical objects as exhibits. You may do so by obtaining the consent of the other parties to have them introduced, or by having witnesses identify them. You must then ask the trial judge whether the document or other object can be marked as a trial exhibit.
You should provide opposing parties with advance notice of the exhibits that you intend to introduce. You must have at least four copies of any document that you intend to request be an exhibit in the trial: one for the witness (which will potentially be stamped as the exhibit; one for the judge; one for the opposing party; and one for your own use.
OBJECTIONS
During testimony, 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
Sometimes parties will call expert witnesses to testify. Before any party can call an expert as a witness, they have to convince the trial judge that the person is an expert in the area in which he or she will give evidence. An ordinary (or “lay”) witness can usually only describe facts which they have observed or matters they have experienced, while 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.
If the trial judge decides the witness is qualified to give expert (opinion) evidence, the party calling that witness will then conduct a direct examination of that witness (or enter into evidence a written report, which you must have received in advance of the trial). You will then have an opportunity to cross examine the expert on his or her opinion.
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 witnesses have testified and all parties have closed their case, 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 your 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 make.
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 oral testimony, 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 only. 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 a.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 you believe have relevant evidence to give at the trial in order that the trial will be able to proceed without interruptions.
- Although the case is proceeding to trial, you can still agree before or during the trial to settle your differences with other parties. This is not part of the trial itself and the trial judge is not to be told about 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.
[1] For Rule 76 cases, see the Instructions for Self-Represented Parties Preparing for Rule 76 Simplified Procedure Trials.