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Trial Process

The Plaintiff presents their case first. The Defendant presents their case once the Plaintiff is done. In the Court of King’s Bench both parties address the court at the start of the trial with the Plaintiff going first. In Small Claims Court the parties generally start their cases by testifying themselves to give the court an overview of the case.

Once the trial is underway it can be adjourned by the court as the court sees fit. If you want to ask for an adjournment because a witness did not appear you must apply to the court. With your application you must include an Affidavit stating that you are not asking just to delay the trial and that you believe you have a provable case or a valid defence.

Calling Witnesses

You generally cannot ask the witness about things the witness does not have personal knowledge of, for example about something they only heard about from someone else but did not see or hear for themselves.

You present your case by calling your witnesses to the stand to testify. You can decide the order to call your witnesses in and decide when and if you want to testify. You can testify at any time during your case but you can only testify once. Both parties can ask that witnesses not be in the courtroom until it is their turn to testify. Once a witness takes the stand they will swear or affirm to tell the truth.

Whoever called the witness will question the witness first. This is called examination-in-chief. When questioning your own witnesses, you must let the witness tell the story. Unless you are asking them something that is not in dispute, you should not ask a question for which the answer is simply yes. That is a called a leading question. For example, "Did the defendant break your window instead of fixing it?" is a leading question. Instead, the question should be something like "What did the defendant do to repair your window?"

After the examination-in-chief the other party may cross-examine your witness. During cross-examination leading questions are allowed. However you still need to frame your questions as questions. The purpose of cross-examination is to test the observations, recollections and truthfulness of the witness. Matters that were not brought up in the witness’s testimony can be brought up in cross-examination, if they are relevant to issues in the case or to whether the witness is being truthful.

After the cross-examination the party who called the witness can re-examine the witness. However, re-examination can only be used to clear up things that were brought up in the cross-examination. It is not a chance to just generally get the witness to give more testimony or to cross-examine your own witness or ask leading questions.

When You Are On the Witness Stand

  • Tell the truth – It is a crime to knowingly lie when you are testifying.
  • Take as much time as you need to answer any questions.
  • If you do not understand a question ask the lawyer to explain it.
  • If you do not remember or you do not know the answer to a question, say so.
  • Tell what you know – not things you heard about from someone else.
  • Include facts, not opinions – provide information about what has happened not about what you think or how you feel about what happened.
  • Be precise and use names and exact dates.
  • Use simple language and short sentences – organize the facts so that your story is easy to understand.
  • Keep it as short as you can – include all the relevant information without repeating.

Presenting Documents

There are very specific rules concerning expert witnesses, appraisals and medical reports. If your case is in the Court of King’s Bench and you are going to use any of this kind of evidence you need to look at Part 5 Division 3 of the King’s Bench Rules of Court that deals with Experts and Expert Reports.

Most people will have materials to support their case. These could include things like a contract between the parties, an invoice, a diagram you have made to explain your case or a photograph taken of something relevant to the case. You must give the other party copies of all these documents before the trial. In the Court of King’s Bench this is done through your Affidavit of Documents. In Small Claims Court your documents should be served on the other party and filed with the court before your Case Management Conference and must be brought to the conference. You and the other party may agree before the trial to submit certain documents to the judge as evidence. These documents are then given to the court at the start of the trial and marked as Exhibits.

Before the trial all your supporting material should be organized by numbering each document and creating a master list. You should also have four copies of each document in court - one for you, one for the other party, one for the witness and one for the court. For ease of reference and simplicity, the master list with the attached numbered documents may be presented to the judge at the outset of the trial and then presented to witnesses during the course of the trial.

When your materials are entered as Exhibits they become evidence in the case. To enter a document as an Exhibit you normally need to call the person who prepared the document, created the diagram or took the photo (or was there when it was taken) etc. as a witness. The original document is shown to the witness who created it and then given to the judge. It is then marked as an Exhibit and becomes evidence in the case.

Some documents can be submitted without calling a witness to testify about the document if the other party does not object. For example, a medical report or an appraisal can be submitted without calling the doctor or the appraiser, unless the other party objects. You can also apply to submit the report of an expert witness without calling the expert. An expert is different than other witnesses because they testify about their opinion, not just about the facts.


Your argument itself is not evidence but must be based on the evidence that was presented to the court.

Once both parties have called all their witnesses and cross-examination has finished each party has a chance to make closing arguments to the court. It may be useful to make a list of points you wish to cover for argument. The Plaintiff goes first.

Your closing argument should briefly summarize the evidence and explain why it supports the outcome you are requesting. You cannot refer to anything that the court ruled could not be used as evidence. Evidence that the court does not allow is called inadmissible. You can refer to laws or cases that you think support your case.

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