Rule 18 – Evidence at Trial

Affidavit

18.01 At the trial of an undefended action, the plaintiff’s case may be proved by affidavit, unless the trial judge orders otherwise.  O. Reg. 258/98, r. 18.01.

Written Statements, Documents and Records

18.02 (1) A document or written statement or an audio or visual record that has been served, at least 30 days before the trial date, on all parties who were served with the notice of trial, shall be received in evidence, unless the trial judge orders otherwise.  O. Reg. 78/06, s. 36 (1).

(2) Subrule (1) applies to the following written statements and documents:

1. The signed written statement of any witness, including the written report of an expert, to the extent that the statement relates to facts and opinions to which the witness would be permitted to testify in person.

2. Any other document, including but not limited to a hospital record or medical report made in the course of care and treatment, a financial record, a receipt, a bill, documentary evidence of loss of income or property damage, and a repair estimate.  O. Reg. 258/98, r. 18.02 (2); O. Reg. 78/06, s. 36 (2).

Details about Witness or Author

(3) A party who serves on another party a written statement or document described in subrule (2) shall append to or include in the statement or document,

(a) the name, telephone number and address for service of the witness or author; and

(b) if the witness or author is to give expert evidence, a summary of his or her qualifications.  O. Reg. 78/06, s. 36 (3).

(4) A party who has been served with a written statement or document described in subrule (2) and wishes to cross-examine the witness or author may summon him or her as a witness under subrule 18.03 (1).  O. Reg. 258/98, r. 18.02 (4).

Where Witness or Author is Summoned

(5) A party who serves a summons to witness on a witness or author referred to in subrule (3) shall, at the time the summons is served, serve a copy of the summons on every other party.  O. Reg. 78/06, s. 36 (4).

(6) Service of a summons and the payment or tender of attendance money under this rule may be proved by affidavit (Form 8A).  O. Reg. 78/06, s. 36 (4).

Adjournment

(7) A party who is not served with a copy of the summons in accordance with subrule (5) may request an adjournment of the trial, with costs.  O. Reg. 78/06, s. 36 (4).

Summons to Witness

18.03 (1) A party who requires the attendance of a person in Ontario as a witness at a trial may serve the person with a summons to witness (Form 18A) requiring him or her to attend the trial at the time and place stated in the summons.  O. Reg. 258/98, r. 18.03 (1).

(2) The summons may also require the witness to produce at the trial the documents or other things in his or her possession, control or power relating to the matters in question in the action that are specified in the summons.  O. Reg. 258/98, r. 18.03 (2).

(3) A summons to witness (Form 18A) shall be served in accordance with subrule 8.01 (7).  O. Reg. 78/06, s. 37 (1).

(4) Service of a summons and the payment or tender of attendance money may be proved by affidavit (Form 8A).  O. Reg. 78/06, s. 37 (1).

(5) A summons to witness continues to have effect until the attendance of the witness is no longer required.  O. Reg. 258/98, r. 18.03 (5).

Interpreter

(5.1) If a party serves a summons on a witness who requires an interpreter, the party shall arrange for a qualified interpreter to attend at the trial unless the interpretation is from English to French or French to English and an interpreter is provided by the Ministry of the Attorney General.  O. Reg. 78/06, s. 37 (2).

(5.2) If a party does not comply with subrule (5.1), every other party is entitled to request an adjournment of the trial, with costs.  O. Reg. 78/06, s. 37 (2).

Failure to Attend or Remain in Attendance

(6) If a witness whose evidence is material to the conduct of an action fails to attend at the trial or to remain in attendance in accordance with the requirements of a summons to witness served on him or her, the trial judge may, by warrant (Form 18B) directed to all police officers in Ontario, cause the witness to be apprehended anywhere within Ontario and promptly brought before the court.  O. Reg. 258/98, r. 18.03 (6).

Identification Form

(6.1) The party who served the summons on the witness may file with the clerk an identification form (Form 20K) to assist the police in apprehending the witness.  O. Reg. 78/06, s. 37 (3).

(7) On being apprehended, the witness may be detained in custody until his or her presence is no longer required or released on such terms as are just, and may be ordered to pay the costs arising out of the failure to attend or remain in attendance.  O. Reg. 258/98, r. 18.03 (7).

Abuse of Power to Summon Witness

(8) If satisfied that a party has abused the power to summon a witness under this rule, the court may order that the party pay directly to the witness an amount as compensation for inconvenience and expense.  O. Reg. 258/98, r. 18.03 (8).