Acts and Regulations

Rule-53 - TAKING EVIDENCE PRIOR TO TRIAL

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Current to 1 January 2024
PREPARATION FOR TRIAL
RULE 53
TAKING EVIDENCE PRIOR TO TRIAL
53.01Where Available
(1)By order of the court or by consent of the parties, a person may be examined on oath before trial for the purpose of having his evidence available to tender at the trial.
(2)In exercising its discretion under paragraph (1) the court shall consider
(a) the convenience of the person sought to be examined,
(b) the possibility that the person may be unavailable to testify at the trial because of infirmity, sickness or absence,
(c) the possibility that the person will be beyond the jurisdiction of the court at the time of trial, and
(d) the expense of bringing the person to the trial.
53.02Procedure
(1)Where an examination under this rule is conducted in New Brunswick, it shall be conducted before the trial judge where possible.
(2)Unless ordered otherwise or provided by this rule, the procedure prescribed by Rule 33 shall apply to the examination of a witness under this rule.
(3)On the examination of a witness under this rule, he may be examined, cross-examined and reexamined.
(4)An order or consent for the examination of a witness under this rule may provide that the examination be recorded by videotape or other similar means either in addition to or in substitution for a typewritten transcript.
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53.03Examination Outside New Brunswick
(1)Where an order is made under this rule for the examination of a witness outside New Brunswick, the order shall provide for
(a) the issuance of a Commission (Form 53A) authorizing the taking of such evidence before the Commissioner therein named; and, if requested,
(b) the issuance of a Letter of Request (Form 53B) directed to the appropriate authority in the jurisdiction in which the witness is to be found, requesting the issuance of such process as may be necessary to compel that witness, or any other witness who may be examined under this rule, to attend and submit to examination before the Commissioner.
(2)The examination under this rule of a witness outside New Brunswick shall take the form of oral questions and answers, unless some other form of examination is required by the order or by the law of the place where the examination is conducted.
(3)At the conclusion of the examination of a witness ordered to be examined under this rule, the Commissioner shall, on the consent of all parties, allow any other witness who is to be found in the same jurisdiction to be examined before him.
53.04Use at Trial
(1)A transcript, videotape or other recording of evidence taken under this rule may, so far as it is admissible, be tendered in evidence at the trial by any party to the action.
(2)Where the evidence of a witness has been taken pursuant to this rule, he shall not be called to give evidence at the trial, except with leave of the trial judge.