Witnesses & Subpoenas
Printer-friendly versionWitnesses are people who give evidence to the court so that the judge has information to make a decision. In most cases, witnesses give their evidence in the form of an affidavit. An affidavit is a written statement of facts relating to the issues being dealt with by the court in your case. Witnesses who file affidavits must be present at a hearing or trial to be cross-examined, unless a judge orders otherwise. This means they can be questioned by the other side, or the other side's lawyer, about the information they gave in their affidavit.
Witnesses may also give their evidence in the courtroom (orally, on the witness stand) without an affidavit if the judge allows. Witnesses can be required to attend a hearing or trial if they are served with a subpoena. Talk to a lawyer to decide if you need to have any witnesses for your case and who you should ask to be your witnesses. If you don't have a lawyer, you are responsible for getting your witnesses to prepare affidavits, and you are responsible for preparing and arranging service of any subpoenas needed. You may also have to provide the court with a list of who your witnesses are, and briefly explain why they are being called as witnesses. These are sometimes called ‘will-say statements.’
A subpoena is a court document that requires a person to give evidence at a court proceeding. The subpoena tells a person that they must come to court for a certain date and time to give evidence to the court. They may be required to give evidence by coming to court to answer questions, or by bringing, or providing the court with, documents, or both.
If a person or representative of an organization refuses to come to court or is unable of their own free will to come to court, and you will need them or documents they have to prove your case, you may ask the court to issue a subpoena. The subpoena will require them to come to the court on a certain date. You will need to pay travel money to anyone you subpoena.
You should talk to the person you want to call to court to testify or to a representative of the organization that holds the documents you want to subpoena. Find out:
- if they have the desired documents
- how much it will cost to locate and copy the documents
- whether they will provide copies of the documents that you want without the need for a subpoena [note: even if they give you the documents without a subpoena, you may still need to subpoena the person or representative if you need them to testify, or to make sure the documents are admissible as evidence (accepted by the court)]
Based on this information, ask only for the documents you will need to prove your case. Avoid paying to have documents produced to the court that may be irrelevant and unhelpful. If you are unsure what will be relevant and helpful, or whether or not you should subpoena someone, you should speak to a lawyer.
Once you have gotten legal advice and identified the need for a subpoena, you must fill out the appropriate subpoena form. You can probably get forms from the court, or access them online. You can photocopy a blank form to make as many subpoena forms as you need.
Fill in the subpoena form with the required information. Make an additional 3 copies of the subpoena - one for the person being subpoenaed, one for you, and one for the court.
Take the original subpoena and the 3 copies to the court. A designated court officer must issue (sign) the subpoena before it is valid. If the subpoena complies with the court's rules and the court officer is satisfied with it, they will sign it, and give you back the original and all of the copies, except for one which will remain on the court file. This is called ‘issuing’ the subpoena.
Click here for information on using a subpoena in Family Court.
Click here for Civil Procedure Rule 50, which deals with subpoenas in the Supreme Court. You can also find the interactive Supreme Court subpoena form here.
Subpoenas must be personally served on the person or organization that you are requiring to come to court. This means that you must arrange for someone, other than yourself, to hand-deliver the subpoena into the hands of the person being subpoenaed. You cannot use registered mail or a courier, or fax the person who you have subpoenaed, when personal service is required.
Personal service means that a literate adult (a person over 19 who can read and write) must hand the documents to the person being subpoenaed. You cannot serve any documents, including subpoenas, relating to your own file.
It is best that a process server be hired to serve court documents whenever possible. Process servers are professionally trained to serve court documents, are used to dealing with parties who do not want to be served, and are familiar with Affidavits of Delivery (see below). You will have to pay a fee for this service. Every process server will set their own fees, and how much you will have to pay will depend on things like how far the server had to travel to serve the documents, and how many attempts at service they had to make (for example, how many times they had to go to the person’s home to try to serve them). You can look in the Yellow Pages or online under ‘Process Servers’ or ‘Bailiffs.’ If you have a lawyer, they may know a process server you can use.
Whoever is performing the service must have the original subpoena with them when they serve the person or organization that you have required to come to court. If requested, they must show the original subpoena to the person being served; however, this original copy must be returned to the court file with the Affidavit of Delivery. The person being served is to be given a certified copy of the subpoena, not the original.
In some instances the subpoena may be delivered to the person’s address, if they have a designated address for delivery on the court file. This would rarely happen. If you are not sure whether there is a designated address for delivery on the file for the person being subpoenaed, check with court staff.
Once the person being subpoenaed has been served, an Affidavit of Delivery must be filed by the person who did the service. The Affidavit of Delivery is a sworn or affirmed statement that tells the court that the party named on the subpoena was served, what they were served (in this case, a certified copy of the subpoena), where and when they were served, and by whom. This Affidavit must be sworn or affirmed in front of a lawyer or Commissioner of Oaths. This can usually be done at the court. If you arrange for a process server to do the service, the server will usually have someone in their office who will swear or affirm the Affidavit.
File the subpoena and Affidavit of Delivery with the court before or at the hearing date to prove that the witness, or the documents, or both, were subpoenaed.
Court rules usually do not state a specific time by which subpoenas must be served; however, good practice is to have the subpoena served as soon as possible after it is issued by the court. If you do not give enough notice to the person being subpoenaed, you run the risk that the witness will ask to be excused from attending on that date, and your matter may be delayed.
Witness fees are now called ‘travel money.’ These are fees you must pay to the person you have subpoenaed to court. These fees must be delivered with the subpoena. The amount to be paid is outlined in the Nova Scotia Costs and Fees Act, and usually will include $5.10 per day in court plus 20 cents per mile (12 cents per kilometre), calculated one way from the witness’s home to the court. These monies are meant to help with traveling expenses to enable the witness to come to court. These fees are to be paid in cash.
A subpoena continues to be in effect until the end of the trial or hearing. This includes any adjournments - if the trial or hearing is held over to another date(s), the subpoena remains in effect for those dates.
The subpoena ends with the very end of the trial or hearing, or until one of the following occurs:
a) a judge excuses the witness from the subpoena;
b) the person who asked for the subpoena, or the court if they requested the subpoena, notifies the witness that attendance is no longer required;
c) counsel (the lawyer) who obtained the subpoena notifies the witness that the issues are settled and the trial or hearing is not going ahead.