Acts and Regulations


Full text
Current to 1 January 2024
39.01By Affidavit
(1)On a motion or application evidence may be given by affidavit unless directed otherwise by these rules or by order.
(2)A party serving a Notice of Motion or Notice of Application shall serve with it any affidavits which he intends to use at the hearing.
(2.1)The judge who fixes the date for the making of a motion or the judge who fixes the return date for a Notice of Application may dispense with the requirement for service of any of the exhibits to the affidavits referred to in paragraph (2).
(3)Where a motion or application is made without notice, it shall be sufficient to file any affidavit in support of the motion or application on or before the hearing thereof.
(4)Subject to section 34 of the Judicature Act, an affidavit for use on a motion need not be confined to statements of fact within the personal knowledge of the deponent, but may contain statements as to the deponent’s information and belief, if the source of the deponent’s information and the deponent’s belief in the statements are specified in the affidavit.
(5)An affidavit for use on an application shall be confined to facts within the personal knowledge of the deponent; but the affidavit may contain statements as to the information and belief of the deponent with respect to facts which are not contentious, if the source of his information and his belief therein are specified in the affidavit.
87-111; 2016-73
39.02By Examination of a Witness
Prior to the Hearing
(1)Prior to the hearing of a motion or application, a person who is not a party to the proceeding may be examined, cross-examined and re-examined, for the purpose of having a transcript of his evidence available for use upon the hearing thereof, and the procedure set out in Rule 33 applies.
On the Hearing
(2)With leave of the presiding judge, a person may be orally examined or cross-examined on the hearing of a motion or application.
39.03Cross-Examination on Affidavit
On the application of any party, the court may order the attendance for cross-examination of any person making an affidavit for use upon a motion or application.
39.04Service of Affidavits
Except for the person giving Notice of Application or Notice of Motion, any person who intends to give affidavit evidence at the hearing shall serve a copy of such affidavit
(a) on the person giving the notice, and
(b) on each person served with the notice,
at least 4 days prior to the date set for the hearing.
39.05Language of Proceeding
(1)On a motion or application, a party who intends to proceed in or present evidence in an official language other than the official language in which any other party intends to proceed or present evidence, shall so advise the clerk at least 7 days before the hearing.
(2)On being advised pursuant to paragraph (1), the clerk shall arrange to have an interpreter present at the hearing.