Inventory of Reforms

Nova Scotia Civil Rules Revision Project - Discovery and Disclosure

Description	New Supreme Court rules imposing limits on pre-trial discovery and revising the standard of disclosure.
Status	Permanent Implementation
Jurisdiction	Nova Scotia
Court	Supreme Court of Nova Scotia
Body responsible	Nova Scotia Civil Rules Revision Project
Subjects	discovery rules of court Supreme Court of Nova Scotia
Timeline
2004	Issues Memorandum released
2005	Working Group Report released
February 2008	Draft Rules received tentative approval
June 2008	Rules formally approved
January 2009	Rules went into effect

Publications
Nova Scotia Civil Procedure Rules Revision Project: Consultation with the Bar - Issue memorandum (Law Reform Commission of Nova Scotia, 2004). [Issues Memorandum] Rules Revision Project (website) (The Courts of Nova Scotia, 2005). (http://www.courts.ns.ca/rules_revision/revision.htm) [Website] Nova Scotia Civil Procedure Rules Revision Project, Final Report of the Discovery and Disclosure Working Group (Courts of Nova Scotia, 2005). (http://www.courts.ns.ca/rules_revision/reports/discovery.pdf) [Working Group Report] New Civil Procedure Rules of Nova Scotia (Courts of Nova Scotia, 2008). (http://www.courts.ns.ca/Rules/rules_table_of_contents_08_06_20.htm) Nova Scotia Civil Procedure Rules (2008) Training Materials (Nova Scotia Barristers' Society Continuing Legal Education Program, September 2008). (http://www.nsbs.org/documents%5Ccpd%5CCPD092208_CPRTier1.pdf) [Training Materials] Nova Scotia, Civil Procedure Rules. (http://www.courts.ns.ca/Rules/toc.htm)
Development
The first phase of the Nova Scotia Rules Revision Project, the review and discussion of policy issues, was completed in 2004-5. It included the development of an Issues Memorandum and the reports of several working groups which made specific recommendations on various issues. Based on the recommendation of the Discovery and Disclosure Working Group, the draft Rules included changes to the disclosure and the discovery process. The draft Rules received tentative approval by the Nova Scotia judiciary and were released in February 2008. The new Rules were formally approved in June, 2008 and went into effect January 1st, 2009, except Part 13 - Family Proceedings which is expected to be completed sometime in 2009.
Purpose
Although the Rules have served the province well, concerns about delays, costs, and undue complexity of court proceedings point to the need for the Rules to be examined in detail and re-written where required. The Supreme Court of Nova Scotia, has been conducting a comprehensive review and revision of the Rules. At the invitation of the Supreme Court, the Law Reform Commission, the Nova Scotia Barristers' Society, and the Nova Scotia Department of Justice are also participating in the Rules revision project. Website.
Description of reforms
Examinations for discovery Rule 18, governing the examinations for discovery, has been substantially revised. The old Rules allowed any party to examine any person on any matter relevant to the proceeding without a court order, with limitations on examinations only where they are unnecessary, improper or vexatious. The Working Group recommended adopting the approach of Ontario's Rule 31, which limits examination of parties to the action, and requires a court order to examine non-parties. Under the new Rules: an obligation is imposed on a party seeking to examine any witness to "consider whether the discovery would promote the just, speedy, and inexpensive resolution of the proceeding" (r.18.02(1)(a)). a subpoena, agreement, or court order is required to examine a party or non-party witness. In applying for a subpoena, a party must show "that the party believes the discovery would promote the just, speedy, and inexpensive resolution of the proceeding, including a concise statement of the grounds for the belief and an explanation of why a discovery subpoena is required instead of, or in addition to, an agreement" (r.18.04(2)(b), r.18.05(2)(a)(ii)). Standard of disclosure The old Rules set a document discovery standard as an obligation to produce all documents "relating to every matter in question" (r. 20.01). The courts applied the "semblance of relevance" test based on this wording. Consultation by the Working Group revealed this standard was excessively broad. Comparable approaches in Ontario and Alberta were considered. The Working group initially proposed a test of "relevant and material," but concern was raised that this would form a narrower standard than the simple "relevance" required to admit documents at trial. Ultimately the Working Group left the question, finding that the issue would need to be decided through a definition of "relevance". The new Rules specify on obligation to disclose "relevant" documents. (r. 15.02(1)(b)). Interrogatories Rule 19, allowing service of interrogatories on parties and non-parties, has been retained and appears under the same number in a revised form in the new Rules. Disclosure of Electronic Information Rule 16 - Disclosure of Electronic Information is the first Canadian Civil Procedure Rule specifically directed at disclosure of electronic information. It is based on principles developed by The Sedona Conference, generally referred to as Sedona Principles. Rule 16 codifies the obligation to identify and preserve relevant electronic information, then sort and disclose it in a second affidavit of documents. Training Materials, Module 3 at 13
Related reforms
Part of Nova Scotia Civil Rules Revision Project
Revision History
This summary was created on 2007-07-17 It was last reviewed to ensure currency on 2009-08-12 2008-02-27 — Updated following release of draft Rules. 2008-11-19 — Updated to reflect formal approval of new Rules 2009-05-08 — Updated to reflect the coming into force of the new Rules.

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If you have updates, changes, or additional information regarding this reform, please contact our Librarian, Brad Albrecht, at balbrecht@cfcj-fcjc.org.

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http://cfcj-fcjc.org/inventory/reform.php?id=28

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