Short Title

Marginal note:Short title

1 These Rules may be cited as the Federal Courts Rules.

PART 1Application and Interpretation

APPLICATION

Marginal note:Application

• 1.1 (1) These Rules apply to all proceedings in the Federal Court of Appeal and the Federal Court unless otherwise provided by or under an Act of Parliament.

• Marginal note:Inconsistency with Act

  (2) In the event of any inconsistency between these Rules and an Act of Parliament or a regulation made under such an Act, that Act or regulation prevails to the extent of the inconsistency.

INTERPRETATION

Marginal note:Definitions

2 The following definitions apply in these Rules.

Act

Loi

Act means the Federal Courts Act. (Loi) (Loi)

action

action

action means a proceeding referred to in rule 169. (action) (action)

address for service

adresse aux fins de signification

address for service means

• (a) in respect of a party who has no solicitor of record,

  • (i) the address shown on the last document filed by the party that indicates an address in Canada, or

  • (ii) where the party is the Crown or the Attorney General of Canada, the office of the Deputy Attorney General of Canada in Ottawa; and

• (b) in respect of a party who has a solicitor of record, the address of the solicitor of record shown on the last filed document that indicates an address. (adresse aux fins de signification) (adresse aux fins de signification)

Administrator

administrateur

Administrator means the Chief Administrator appointed under section 5 of the Courts Administration Service Act, or a person acting on his or her behalf. (administrateur) (administrateur)

Admiralty action

action en matière d'amirauté

Admiralty action means an action in which the Court exercises jurisdiction under section 22 of the Act. (action en matière d'amirauté) (action en matière d'amirauté)

appeal

appel

appeal means a proceeding referred to in rule 335. (appel) (appel)

applicant

demandeur

applicant means a party bringing an application. (demandeur) (demandeur)

application

demande

application means a proceeding referred to in rule 300. (demande) (demande)

assessment officer

officier taxateur

assessment officer means an officer of the Registry designated by an order of the Court, a judge or a prothonotary, and includes, in respect of a reference, the referee presiding in the reference. (officier taxateur) (officier taxateur)

business day

jour ouvrable

business day means a day that is not a holiday. (jour ouvrable) (jour ouvrable)

case management judge

juge responsable de la gestion de l'instance

case management judge means a judge assigned under paragraph 383(a) or rule 383.1 and includes a prothonotary assigned under paragraph 383(b). (juge responsable de la gestion de l'instance) (juge responsable de la gestion de l'instance)

certified copy

copie certifiée conforme

certified copy, in respect of a document in the custody of the Registry, means a copy of the document certified by an officer of the Registry. (copie certifiée conforme) (copie certifiée conforme)

Christmas recess

vacances judiciaires de Noël

Christmas recess means the period beginning on December 21 in a year and ending on January 7 in the following year. (vacances judiciaires de Noël) (vacances judiciaires de Noël)

Court

Cour

Court means, as the circumstances require,

• (a) the Federal Court of Appeal, including, in respect of a motion, a single judge of that court; or

• (b) the Federal Court, including a prothonotary acting within the jurisdiction conferred under these Rules. (Cour) (Cour)

Court file

dossier de la Cour

Court file means the file maintained pursuant to rule 23 or 24. (dossier de la Cour) (dossier de la Cour)

dispute resolution conference

conférence de règlement des litiges

dispute resolution conference means a conference ordered under rule 386. (conférence de règlement des litiges) (conférence de règlement des litiges)

filed

déposé

filed, in respect of a document, means accepted for filing under rule 72. (déposé) (déposé)

garnishee

tiers saisi

garnishee means a person in respect of whom an order attaching a debt to a judgment debtor has been made under rule 449. (tiers saisi) (tiers saisi)

Hague Convention

Convention de La Haye

Hague Convention means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters signed at The Hague on November 15, 1965. (Convention de La Haye) (Convention de La Haye)

hearing

audience

hearing includes a conference held under these Rules. (audience) (audience)

holiday

jour férié

holiday means a Saturday, Sunday or any other day defined as a holiday in subsection 35(1) of the Interpretation Act. (jour férié) (jour férié)

intervener

intervenant

intervener means a person who has been granted status as an intervener under rule 109. (intervenant) (intervenant)

issued

délivré

issued means

• (a) in respect of an originating document, dated, signed, sealed with the seal of the Court and assigned a Court file number by the Administrator; and

• (b) in respect of any other document, dated, signed and sealed with the seal of the Court by the Administrator. (délivré) (délivré)

local office

bureau local

local office means an office of the Registry of the Court established by the Administrator other than the principal office. (bureau local) (bureau local)

motion

requête

motion means a request to the Court under, or to enforce, these Rules. (requête) (requête)

oath

serment

oath includes a solemn affirmation within the meaning of subsection 14(1) of the Canada Evidence Act. (serment) (serment)

order

ordonnance

order includes

• (a) a judgment;

• (b) a decision or other disposition of a tribunal; and

• (c) a determination of a reference under section 18.3 of the Act. (ordonnance) (ordonnance)

originating document

acte introductif d'instance

originating document means a document referred to in rule 63. (acte introductif d'instance) (acte introductif d'instance)

party

parties

party means

• (a) in respect of an action, a plaintiff, defendant or third party;

• (b) in respect of an application,

  • (i) where a tribunal brings a reference under section 18.3 of the Act, a person who becomes a party in accordance with rule 323,

  • (ii) where the Attorney General of Canada brings a reference under section 18.3 of the Act, the Attorney General of Canada and any other person who becomes a party in accordance with rule 323, and

  • (iii) in any other case, an applicant or respondent;

• (c) in respect of an appeal, an appellant or respondent; and

• (d) in respect of a motion, the person bringing the motion or a respondent thereto. (parties) (parties)

person

personne

person includes a tribunal, an unincorporated association and a partnership. (personne) (personne)

plaintiff

demandeur

plaintiff

• (a) except in the case of a class action, includes a person on whose behalf an action is commenced; and

• (b) in the case of a class action, means

  • (i) in respect of the common questions of law or fact, the representative plaintiff, and

  • (ii) in respect of individual questions, the member to whom those questions apply. (demandeur)

pleading

acte de procédure

pleading means a document in a proceeding in which a claim is initiated, defined, defended or answered. (acte de procédure) (acte de procédure)

principal office

bureau principal

principal office means the head office of the Registry of the Court established by the Administrator. (bureau principal) (bureau principal)

referee

arbitre

referee means a person to whom a matter has been referred under rule 153. (arbitre) (arbitre)

Registry

Registry[Repealed, SOR/2004-283, s. 3]

sheriff

shérif

sheriff includes a marshal, peace officer or other person to whom a writ, warrant or other process is directed and, in the Province of Quebec, a member of the Ordre professionnel des huissiers de justice du Québec. (shérif) (shérif)

simplified action

action simplifiée

simplified action means an action referred to in rule 292. (action simplifiée) (action simplifiée)

solicitor

avocat

solicitor means a person referred to in subsection 11(3) of the Act. (avocat) (avocat)

solicitor of record

avocat inscrit au dossier

solicitor of record means a solicitor determined under rule 123. (avocat inscrit au dossier) (avocat inscrit au dossier)

specially managed proceeding

instance à gestion spéciale

specially managed proceeding means a proceeding managed in accordance with rules 383 to 385. (instance à gestion spéciale) (instance à gestion spéciale)

statement of claim

déclaration

statement of claim means a document by which an action is commenced. (déclaration) (déclaration)

summer recess

vacances judiciaires d'été

summer recess means the months of July and August in each year. (vacances judiciaires d'été) (vacances judiciaires d'été)

swear

Version anglaise seulement

swear, in respect of an oath, includes affirm. (Version anglaise seulement) (Version anglaise seulement)

third party

tierce partie

third party includes a fourth or subsequent party. (tierce partie) (tierce partie)

tribunal

Version anglaise seulement

tribunal has the same meaning as federal board, commission or other tribunal in the Act. (Version anglaise seulement) (Version anglaise seulement)

unincorporated association

association sans personnalité morale

unincorporated association means an organization of two or more persons, other than a partnership, that operates under a common name for a common purpose or undertaking. (association sans personnalité morale) (association sans personnalité morale)

writ of execution

bref d'exécution

writ of execution includes a writ of seizure and sale, a writ of possession, a writ of delivery and a writ of sequestration, and any further writ in aid thereof. (bref d'exécution) (bref d'exécution)

Marginal note:General principle

3 These Rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.

Marginal note:Matters not provided for

4 On motion, the Court may provide for any procedural matter not provided for in these Rules or in an Act of Parliament by analogy to these Rules or by reference to the practice of the superior court of the province to which the subject-matter of the proceeding most closely relates.

Marginal note:Forms

5 Where these Rules require that a form be used, the form may incorporate any variations that the circumstances require.

COMPUTATION, EXTENSION AND ABRIDGEMENT OF TIME

Marginal note:Interpretation Act

• 6 (1) Subject to subsections (2) and (3), the computation of time under these Rules, or under an order of the Court, is governed by sections 26 to 30 of the Interpretation Act.

• Marginal note:Period of less than seven days

  (2) Where a period of less than seven days is provided for in these Rules or fixed by an order of the Court, a day that is a holiday shall not be included in computing the period.

• Marginal note:Christmas recess

  (3) Unless otherwise directed by the Court, a day that falls within the Christmas recess shall not be included in the computation of time under these Rules for filing, amending or serving a document.

Marginal note:Extension by consent

• 7 (1) Subject to subsections (2) and (3), a period provided by these Rules may be extended once by filing the consent in writing of all parties.

• Marginal note:Limitation

  (2) An extension of a period under subsection (1) shall not exceed one half of the period sought to be extended.

• Marginal note:Exception

  (3) No extension may be made on consent of the parties in respect of a period fixed by an order of the Court or under subsection 203(1), 304(1) or 339(1).

Marginal note:Extension or abridgement

• 8 (1) On motion, the Court may extend or abridge a period provided by these Rules or fixed by an order.

• Marginal note:When motion may be brought

  (2) A motion for an extension of time may be brought before or after the end of the period sought to be extended.

• Marginal note:Motions for extension in Court of Appeal

  (3) Unless the Court directs otherwise, a motion to the Federal Court of Appeal for an extension of time shall be brought in accordance with rule 369.

PART 2Administration of the Court

OFFICERS OF THE COURT

9 to 11 [Repealed, SOR/2004-283, s. 4]

Marginal note:Court registrars

• 12 (1) The Administrator shall arrange that there be in attendance at every sitting of the Court a duly qualified person to act as court registrar for the sitting, who shall, subject to the direction of the Court,

  • (a) make all arrangements necessary to conduct the sitting in an orderly, efficient and dignified manner;

  • (b) keep a record of every material event that transpires during the sitting;

  • (c) keep and be responsible for all books and records of the Court used at the sitting; and

  • (d) keep and be responsible for all exhibits filed during the sitting and mark them, record them and indicate by whom they were filed.

• Marginal note:Other officers of the Court

  (2) The Administrator shall arrange for the attendance at every sitting of the Court of all persons who are necessary for the proper conduct of the Court at the sitting.

COURT SEALS

Marginal note:Court seals

• 13 (1) The seal of each court — the Federal Court of Appeal and the Federal Court — shall be approved by its Chief Justice and shall be kept in the principal office.

• Marginal note:Facsimiles of seal

  (2) The Chief Justice of each court may authorize one or more facsimiles of the seal of their court to be kept at the Registry.

REGISTRY

Marginal note:Registry functions

14 Registry functions may be performed by an officer of the Registry at any place and at any time.

Marginal note:Hours of operation

• 15 (1) The Registry shall be open for business on every day except holidays from 9:00 a.m. until 5:00 p.m., unless otherwise directed by the Administrator, following consultation with the Chief Justice of each court.

• Marginal note:Special hours of operation

  (2) The Registry shall also be open at such other times as may be required for the proper judicial functioning of the Court.

Marginal note:Recommendation boxes

16 To provide the public with an opportunity to make comments regarding the administration or rules of the Court, two small locked boxes — one for the Federal Court of Appeal and one for the Federal Court — shall be maintained in every office of the Registry, located and constructed so that members of the public can conveniently insert envelopes into them and identified by a sign indicating

• (a) “RECOMMENDATIONS FOR THE FEDERAL COURT OF APPEAL” or “RECOMMENDATIONS FOR THE FEDERAL COURT”, as the case may be;

• (b) that recommendations are invited for amendments to the Federal Courts Rules and improvements in the administration of the Court; and

• (c) that every recommendation will be sent unopened directly to the Chief Justice of the court in question.

Marginal note:Local offices

17 In addition to the principal office in Ottawa established under section 14 of the Act, offices of the Court are hereby continued in Calgary, Charlottetown, Edmonton, Fredericton, Halifax, Montreal, Quebec City, Regina, Saint John, Saskatoon, St. John's, Toronto, Vancouver, Whitehorse, Winnipeg and Yellowknife.

Marginal note:Requests and requisitions

18 A request or requisition to the Administrator under these Rules shall be made in Form 18.

FEES

Marginal note:Registry fees

19 A party shall pay to the Registry for a service or procedure set out in Tariff A the fees set out in that Tariff.

Marginal note:Sheriff’s fees

• 20 (1) Subject to subsection (2), a sheriff is entitled to the fees for service and disbursements set out in Tariff A.

• Marginal note:Modification by Court

  (2) On motion, the Court may increase or decrease the fee payable to a sheriff on execution.

COURT RECORDS

Marginal note:Books and records

21 The Administrator shall keep, in the National Capital Region, all books and records necessary for recording the proceedings of the Court and shall enter therein all orders, directions, foreign judgments ordered to be registered, pleadings and other documents filed in proceedings.

Marginal note:Caveat register

• 22 (1) The Administrator shall keep in the Registry a caveat register, in which all caveats, withdrawals of caveats and orders affecting caveats shall be entered.

• Marginal note:Entry of caveat

  (2) On the filing of a caveat under subsection 493(1), (2) or (3), the Administrator shall enter the caveat in the caveat register.

Marginal note:Court files

• 23 (1) The Administrator shall maintain a file in the National Capital Region in respect of every proceeding in the Court, in which shall be kept, stamped with the date and time of filing and bound permanently in the order of filing,

  • (a) every document filed under these Rules, an order of the Court or an Act of Parliament, other than affidavits or other material filed in support of a motion or as evidence at trial;

  • (b) all correspondence between a party and the Registry;

  • (c) all orders;

  • (d) copies of all writs issued in the proceeding; and

  • (e) such other documents relating to the proceeding as the Court may direct.

• Marginal note:Annexes

  (2) An annex to the Court file shall be maintained in respect of every proceeding in the Court, in which shall be kept

  • (a) all affidavits;

  • (b) all exhibits; and

  • (c) all other documents and material in the custody of the Court or the Registry that are not required under subsection (1) to be kept in the Court file.

Marginal note:Files for notices of motion

• 24 (1) Where, in respect of an action, application or appeal that has not yet been commenced, a notice of motion for an extension of time, for leave to appeal or for any other order under a statute, rule or other enactment is filed, the notice of motion, any affidavits filed in respect thereof and any order made pursuant to the motion shall be kept in Court files maintained for notices of motion of that category.

• Marginal note:Copies on file

  (2) Where a proceeding referred to in subsection (1) is subsequently commenced, a copy of the order and related material referred to in that subsection shall be placed in the Court file maintained for the proceeding.

Marginal note:Transmission of documents filed in local office

25 A document filed in a local office shall be transmitted forthwith by the Administrator to the principal office of the Registry and a certified copy of all such documents shall be kept at the local office and transmitted to any other local office where a copy is required for the business of the Court.

Marginal note:Inspection of files

• 26 (1) Where the necessary facilities are available, any person may, with supervision and without interfering with the business of the Court, inspect a Court file or annex.

• Marginal note:Removal of documents from file

  (2) Nothing shall be removed from a Court file or annex except

  • (a) under an order of the Court;

  • (b) by an officer of the Registry acting in the course of his or her duties; or

  • (c) in accordance with rule 26.1.

• Marginal note:Removal of files

  (3) Unless otherwise ordered by the Court, no Court file or annex to a Court file shall be removed from the Registry by any person other than

  • (a) a judge, prothonotary or referee; or

  • (b) an officer of the Registry acting in the course of his or her duties.

Marginal note:Definition

• 26.1 (1) In this rule, appeal includes an appeal of an order of a prothonotary, an application for leave to appeal and an appeal to the Supreme Court of Canada.

• Marginal note:Removal of exhibits from file

  (2) Subject to subsection (4), exhibits put into evidence shall remain in the Court file either

  • (a) until the time for an appeal has expired, if no appeal has been taken, or

  • (b) until the appeal is disposed of, if an appeal has been taken.

• Marginal note:Return of exhibits

  (3) On the expiry of the time for appeal or on the disposition of the appeal, the Administrator shall return the exhibits to the respective solicitors or the parties who put the exhibits in evidence.

• Marginal note:Return on consent

  (4) At any time following judgment, on requisition by the solicitor or party who put an exhibit in evidence or the person who produced it and on the filing of the consent of all parties, the Administrator shall return the exhibit to the person making the requisition.

UNCLAIMED EXHIBITS

Marginal note:Directions

• 27 (1) If exhibits are not returnable to a party, solicitor or person or have not been claimed by a party, solicitor or person within one year after the expiry of the time for appeal or the disposition of the appeal referred to in subsection 26.1(3), the Administrator may seek directions from the Court as to their disposition.

• Marginal note:Disposal of exhibits

  (2) The Court may, at the request of the Administrator, order that any exhibits not claimed by, or returnable to, a party, solicitor or other person be vested in Her Majesty in right of Canada or be destroyed.

HEARINGS

Marginal note:Sitting of Court

28 The Court may sit at any time and at any place.

Marginal note:Public hearings

• 29 (1) Subject to subsection (2) and rule 30, hearings of the Court, other than pre-trial or dispute resolution conferences, shall be open and accessible to the public.

• Marginal note:Hearing in camera

  (2) On motion, the Court may direct that all or part of a proceeding be heard in camera if it is satisfied that the hearing should not be open to the public.

Marginal note:Orders out of court

• 30 (1) A judge or prothonotary who is not sitting in court may make an order on a motion if

  • (a) the judge or prothonotary is satisfied that all parties affected have consented thereto;

  • (b) the motion was brought in accordance with rule 369; or

  • (c) for any other reason the judge or prothonotary considers that the order can be made without a hearing without prejudice to any party.

• Marginal note:Variance

  (2) On motion, the Court may set aside or vary an order made under paragraph (1)(a) on the ground that a party did not consent to it.

Marginal note:Interpreter

31 A request by a party under the Official Languages Act for an interpreter at a hearing shall be made in writing and be sent to the Administrator as soon as is practicable before the hearing begins.

Marginal note:Remote conferencing

32 The Court may order that a hearing be conducted in whole or in part by means of a telephone conference call, video-conference or any other form of electronic communication.

Marginal note:Technological assistance

33 The Court may give directions to facilitate the conduct of a hearing by the use of any electronic or digital means of communication or storage or retrieval of information, or any other technology it considers appropriate.

Marginal note:General Sittings of Trial Division

• 34 (1) General Sittings of the Federal Court for the hearing of motions shall be held, except during the Christmas or summer recess or on a holiday,

  • (a) at Ottawa, every Tuesday and Thursday;

  • (b) at Montreal, Toronto and Vancouver, every Monday; and

  • (c) in every province other than Ontario, Quebec and British Columbia, at least once per month, on a day and in a place fixed by the Chief Justice of the Federal Court.

• Marginal note:Cancellation

  (2) General Sittings may be cancelled by the Chief Justice of the Federal Court if no notice of a motion to be presented at the Sittings has been filed

  • (a) in Ottawa, Montreal, Toronto or Vancouver, at least two days before the day of the Sittings; and

  • (b) in any other place, at least one week before the day of the Sittings.

• Marginal note:Summer recess

  (3) General Sittings during the summer recess will be announced by the Chief Justice of the Federal Court before June 15 each year.

Marginal note:Hearing dates

• 35 (1) Subject to rule 298 and paragraph 385(1)(b), motions that can conveniently be heard at the General Sittings of the Federal Court may be made returnable accordingly.

• Marginal note:Special hearing dates

  (2) A request may be made informally to the Judicial Administrator of the Federal Court of Appeal or the Federal Court, as the case may be, for an appointment of a special time and place

  • (a) for sittings of the Federal Court of Appeal or of a judge of that court to hear a motion; or

  • (b) for sittings of a judge of the Federal Court or of a prothonotary to hear a motion that is likely to be lengthy or a motion to be heard other than at General Sittings.

Marginal note:Adjournment

• 36 (1) A hearing may be adjourned by the Court from time to time on such terms as the Court considers just.

• Marginal note:Adjournment to fixed day

  (2) Where a hearing is adjourned to a fixed day, a party who appeared at the hearing is deemed to have had notice of the adjournment.

• Marginal note:Notice dispensed with

  (3) Where a party has failed to appear at a hearing, that party need not be served with notice of an adjournment of the hearing.

Marginal note:Failure to give notice

37 Where at a hearing the Court considers that any person to whom notice of the hearing has not been given ought to have had such notice, the Court may adjourn the hearing or dismiss the proceeding or motion.

Marginal note:Absence of party

38 Where a party fails to appear at a hearing, the Court may proceed in the absence of the party if the Court is satisfied that notice of the hearing was given to that party in accordance with these Rules.

Marginal note:Inability to continue

39 If a judge or referee of the Federal Court of Appeal or a Judge, prothonotary or referee of the Federal Court is for any reason unable to continue in a proceeding or to render a judgment that has been reserved, the Chief Justice of the court in question may order that the proceeding be reheard or retried, on any terms that the Chief Justice considers just.

Marginal note:Rota of Judges for Vancouver

• 40 (1) On or before July 1 in each year, the Chief Justice of the Federal Court shall, in consultation with the other judges of that court, establish a rota of judges for Vancouver for the twelve months commencing on September 1 of that year, excluding the Christmas recess.

• Marginal note:Powers of Chief Justice of the Federal Court

  (2) The Chief Justice of the Federal Court may make changes to the Vancouver rota, including the substitution of one judge for another during all or part of the judge’s period of assignment.

• Marginal note:Responsibilities of judges

  (3) A judge assigned to Vancouver shall reside in Vancouver for the period of the assignment and hold sittings and otherwise transact the judicial business of the Federal Court in Vancouver and in such other places as may be required.

• Marginal note:Assignment period

  (4) Except with a judge’s consent, the Chief Justice of the Federal Court shall not

  • (a) assign the judge to Vancouver for a period exceeding two months; or

  • (b) reassign the judge to Vancouver for a second assignment within two months after the end of the first.

SUMMONING OF WITNESSES OR OTHER PERSONS

Marginal note:Subpoena for witness

• 41 (1) Subject to subsection (4), on receipt of a written request, the Administrator shall issue, in Form 41, a subpoena for the attendance of a witness or the production of a document or other material in a proceeding.

• Marginal note:Issuance in blank

  (2) A subpoena may be issued in blank and completed by a solicitor or party.

• Marginal note:Multiple names

  (3) Any number of names may be included in one subpoena.

• Marginal note:Where leave required

  (4) No subpoena shall be issued without leave of the Court

  • (a) for the production of an original record or of an original document, if the record or document may be proven by a copy in accordance with an Act of Parliament or of the legislature of a province;

  • (b) to compel the appearance of a witness who resides more than 800 km from the place where the witness will be required to attend under the subpoena; or

  • (c) to compel the attendance of a witness at a hearing other than a trial or a reference under rule 153.

• Marginal note:Ex parte motion

  (5) Leave may be granted under subsection (4) on an ex parte motion.

Marginal note:Personal service of subpoena

42 No witness is required to attend under a subpoena unless the subpoena has been personally served on the witness in accordance with paragraph 128(1)(a) and witness fees and travel expenses have been paid or tendered to the witness in the amount set out in Tariff A.

Marginal note:Witness fees

43 Where a witness is required under these Rules to attend a proceeding other than pursuant to a subpoena, the witness is entitled to witness fees and travel expenses in the amount set out in Tariff A.

44 [Repealed, SOR/2002-417, s. 7]

Marginal note:Compelling attendance of detainee

45 On motion, the Court may make an order in Form 45 requiring that any person who is in the custody of a prison or penitentiary be brought before the Court.

Marginal note:Failure to obey

46 Where a witness who is required to attend at a hearing fails to do so, on motion, the Court may, by a warrant in Form 46, order that the witness be apprehended anywhere in Canada, brought before the Court and

• (a) detained in custody until the witness’s presence is no longer required; or

• (b) released on a recognizance, with or without sureties, on condition that the witness attend to give evidence.

PART 3Rules Applicable to All Proceedings

GENERAL

Powers

Marginal note:Court's discretionary powers

• 47 (1) Unless otherwise provided in these Rules, the discretionary powers of the Court under these Rules may be exercised by the Court of its own initiative or on motion.

• Marginal note:Exercise of powers on motion

  (2) Where these Rules provide that powers of the Court are to be exercised on motion, they may be exercised only on the bringing of a motion.

48 [Repealed, SOR/2004-283, s. 10]

Marginal note:Transfer of proceedings

49 If a proceeding has been commenced in the Federal Court of Appeal or the Federal Court, a judge of that court may order that the proceeding be transferred to the other court.

Marginal note:Prothonotaries

• 50 (1) A prothonotary may hear, and make any necessary orders relating to, any motion under these Rules other than a motion

  • (a) in respect of which these Rules or an Act of Parliament has expressly conferred jurisdiction on a judge;

  • (b) in the Federal Court of Appeal;

  • (c) for summary judgment other than

    • (i) in an action referred to in subsection (2), or

    • (ii) in respect of a claim referred to in subsection (3);

  • (d) to hold a person in contempt at a hearing referred to in paragraph 467(1)(a);

  • (e) for an injunction;

  • (f) relating to the liberty of a person;

  • (g) to stay, set aside or vary an order of a judge, other than an order made under paragraph 385(a), (b) or (c);

  • (h) to stay execution of an order of a judge;

  • (i) to appoint a receiver;

  • (j) for an interim order under section 18.2 of the Act;

  • (k) to appeal the findings of a referee under rule 163; or

  • (l) for the certification of an action as a class action.

• Marginal note:Actions not over $50,000

  (2) A prothonotary may hear an action exclusively for monetary relief, or an action in rem claiming monetary relief, in which no amount claimed by a party exceeds $50,000 exclusive of interest and costs.

• Marginal note:Class actions

  (3) A prothonotary may hear a claim in respect of one or more individual questions in a class action in which the amount claimed by the member of the class does not exceed $50,000 exclusive of interest and costs.

Appeals of Prothonotaries' Orders

Marginal note:Appeal

• 51 (1) An order of a prothonotary may be appealed by a motion to a judge of the Federal Court.

• Marginal note:Service of appeal

  (2) Notice of a motion under subsection (1) shall be

  • (a) served within 10 days after the day on which the order under appeal was made and at least four days before the day fixed for hearing the motion; and

  • (b) filed not later than two days before the day fixed for the hearing of the motion.

Assessors

Marginal note:Role of assessor

• 52 (1) The Court may call on an assessor

  • (a) to assist the Court in understanding technical evidence; or

  • (b) to provide a written opinion in a proceeding.

• Marginal note:Fees and disbursements

  (2) An order made under subsection (1) shall provide for payment of the fees and disbursements of the assessor.

• Marginal note:Communications with assessor

  (3) All communications between the Court and an assessor shall be in open court.

• Marginal note:Form and content of question

  (4) Before requesting a written opinion from an assessor, the Court shall allow the parties to make submissions in respect of the form and content of the question to be asked.

• Marginal note:Answer by assessor

  (5) Before judgment is rendered, the Court shall provide the parties with the questions asked of, and any opinion given by, an assessor and give them an opportunity to make submissions thereon.

• Marginal note:Expert witnesses

  (6) A party may call an expert witness to testify notwithstanding that an assessor has been called on under subsection (1).

Orders and Directions

Marginal note:Orders on terms

• 53 (1) In making an order under these Rules, the Court may impose such conditions and give such directions as it considers just.

• Marginal note:Other orders

  (2) Where these Rules provide that the Court may make an order of a specified nature, the Court may make any other order that it considers just.

Marginal note:Motion for directions

54 A person may at any time bring a motion for directions concerning the procedure to be followed under these Rules.

Varying Rules and Dispensing with Compliance

Marginal note:Varying rule and dispensing with compliance

55 In special circumstances, in a proceeding, the Court may vary a rule or dispense with compliance with a rule.

Failure to Comply with Rules

Marginal note:Effect of non-compliance

56 Non-compliance with any of these Rules does not render a proceeding, a step in a proceeding or an order void, but instead constitutes an irregularity, which may be addressed under rules 58 to 60.

Marginal note:Wrong originating document

57 An originating document shall not be set aside only on the ground that a different originating document should have been used.

Marginal note:Motion to attack irregularity

• 58 (1) A party may by motion challenge any step taken by another party for non-compliance with these Rules.

• Marginal note:When motion to be brought

  (2) A motion under subsection (1) shall be brought as soon as practicable after the moving party obtains knowledge of the irregularity.

Marginal note:Orders on motion

59 Subject to rule 57, where, on a motion brought under rule 58, the Court finds that a party has not complied with these Rules, the Court may, by order,

• (a) dismiss the motion, where the motion was not brought within a sufficient time after the moving party became aware of the irregularity to avoid prejudice to the respondent in the motion;

• (b) grant any amendments required to address the irregularity; or

• (c) set aside the proceeding, in whole or in part.

Marginal note:Non-compliance with Rules or gap in case

60 At any time before judgment is given in a proceeding, the Court may draw the attention of a party to any gap in the proof of its case or to any non-compliance with these Rules and permit the party to remedy it on such conditions as the Court considers just.

COMMENCEMENT OF PROCEEDINGS

Manner of Bringing Proceeding

Marginal note:Actions

• 61 (1) Subject to subsection (4), a proceeding referred to in rule 169 shall be brought as an action.

• Marginal note:Applications

  (2) Subject to subsection (4), a proceeding referred to in rule 300 shall be brought as an application.

• Marginal note:Appeals

  (3) A proceeding referred to in rule 335 shall be brought as an appeal.

• Marginal note:Exception

  (4) Where by or under an Act of Parliament a person is given the option of bringing a proceeding referred to in rule 169 or 300 as either an action or an application, the person may commence the proceeding as an action or as an application.

Originating documents

Marginal note:Commencement of proceedings

• 62 (1) Subject to subsection (2), all actions, applications or appeals shall be commenced by the issuance of an originating document.

• Marginal note:Exception

  (2) A counterclaim or third party claim in an action brought only against persons who are already parties to the action shall be commenced by the service and filing of the counterclaim or third party claim.

Marginal note:Types of originating documents

• 63 (1) Unless otherwise provided by or under an Act of Parliament, the originating document for the commencement of

  • (a) an action, including an appeal by way of an action, is a statement of claim;

  • (b) a counterclaim against a person who is not yet a party to the action is a statement of defence and counterclaim;

  • (c) a third party claim against a person who is not yet a party to the action is a third party claim;

  • (d) an application is a notice of application; and

  • (e) an appeal is a notice of appeal.

• Marginal note:Other originating documents

  (2) Where by or under an Act of Parliament a proceeding is to be commenced by way of a document different from the originating document required under these Rules, the rules applicable to the originating document apply in respect of that document.

Marginal note:Declaratory relief available

64 No proceeding is subject to challenge on the ground that only a declaratory order is sought, and the Court may make a binding declaration of right in a proceeding whether or not any consequential relief is or can be claimed.

COURT DOCUMENTS

Form

Marginal note:Format of documents on paper

65 A document prepared for use in a proceeding shall be printed, typewritten or reproduced legibly, on good quality white or off-white paper measuring 21.5 cm by 28 cm (8½ in. by 11 in.),

• (a) in respect of a document other than a book of authorities, on one side of the paper only;

• (b) in a type not smaller than 12 point;

• (c) with top and bottom margins of not less than 2.5 cm and left and right margins of not less than 3.5 cm; and

• (d) with no more than 30 lines per page, exclusive of headings.

Marginal note:Heading

• 66 (1) The first page of a document prepared for use in a proceeding shall have a heading in Form 66 that sets out

  • (a) the name of the court and the Court file number; and

  • (b) the style of cause in accordance with rule 67.

• Marginal note:Content of document

  (2) A document prepared for use in a proceeding shall contain

  • (a) the title of the document;

  • (b) its date; and

  • (c) the name, address, telephone number and fax number of the solicitor filing the document or, where a party is not represented by a solicitor, the party's name, an address for service in Canada, a telephone number and any fax number.

• Marginal note:Signature

  (3) A document prepared for use in a proceeding shall be signed by the solicitor or party filing it.

Marginal note:Style of cause in originating document

• 67 (1) An originating document shall contain a style of cause that sets out the names of all parties and the capacity of any party that is not acting in its personal capacity.

• Marginal note:Style of cause in action

  (2) The style of cause in an action shall name each party commencing the action as a plaintiff and each adverse party as a defendant.

• Marginal note:Style of cause in application

  (3) The style of cause in an application shall name each party commencing the application as an applicant and each adverse party as a respondent and state any legislative provision or rule under which the application is made.

• Marginal note:Style of cause in appeal

  (4) The style of cause in an appeal shall name each party bringing the appeal as an appellant and each adverse party as a respondent.

• Marginal note:Short style of cause

  (5) In a document other than an originating document or order, where there are more than two parties to the proceeding, a short style of cause may be used, showing the names of the first party on each side followed by the expression “and others”.

• Marginal note:Motions prior to commencement of proceeding

  (6) Subsections (1) to (4) apply, with such modifications as are required, to a motion brought prior to the commencement of an action, application or appeal.

Marginal note:Language of documents

• 68 (1) Subject to subsection (2), all documents required under these Rules to be filed in a proceeding shall be in English or French or be accompanied by a translation in English or French and an affidavit attesting to the accuracy of the translation.

• Marginal note:Language of pleadings, etc.

  (2) All pleadings, memoranda of fact and law and written representations on motions shall be in English or French.

Marginal note:Notice of constitutional question

69 A notice of a constitutional question referred to in section 57 of the Act shall be in Form 69.

Marginal note:Memorandum of fact and law

• 70 (1) A memorandum of fact and law shall contain, in consecutively numbered paragraphs,

  • (a) a concise statement of fact, as Part I of the memorandum;

  • (b) a statement of the points in issue, as Part II of the memorandum;

  • (c) a concise statement of submissions, as Part III of the memorandum;

  • (d) a concise statement of the order sought, including any order concerning costs, as Part IV of the memorandum;

  • (e) a list of the authorities to be referred to, as Part V of the memorandum;

  • (f) in a proceeding other than an appeal, the provisions of any statutes or regulations cited or relied on that have not been reproduced in another party's memorandum, as Appendix A to the memorandum; and

  • (g) in a proceeding other than an appeal, a book of the authorities to be referred to that have not been included in another party's book of authorities, as Appendix B to the memorandum.

• Marginal note:Enactments in both official languages

  (2) Extracts of federal statutes and regulations in Appendix A to a memorandum of fact and law shall be reproduced in both official languages.

• Marginal note:Appendices

  (3) Appendices to a memorandum of fact and law may be bound separately from the rest of the memorandum.

• Marginal note:Length

  (4) Unless otherwise ordered by the Court, a memorandum of fact and law, exclusive of Part V and appendices, shall not exceed 30 pages in length.

Filing of Documents

Marginal note:How documents may be submitted

• 71 (1) A document may be submitted for filing by being

  • (a) delivered to the Registry;

  • (b) mailed to the Registry; or

  • (c) subject to subsection (2), transmitted to the Registry by fax.

• Marginal note:Limit on documents filed by fax

  (2) The following documents may not be filed by fax without the consent of the Administrator:

  • (a) a motion record, application record, trial record, appeal book or book of authorities; or

  • (b) any other document that is longer than 20 pages.

• Marginal note:Fax cover page

  (3) A document that is submitted for filing by fax shall include a cover page in Form 71.

• Marginal note:Reception by Registry

  (4) A document is not considered to have been submitted until

  • (a) it is received by the Registry and dated by the Administrator; and

  • (b) where a fee for its issuance or filing is payable under Tariff A, the fee is paid.

Marginal note:Irregular documents

• 72 (1) Where a document is submitted for filing, the Administrator shall

  • (a) accept the document for filing; or

  • (b) where the Administrator is of the opinion that the document is not in the form required by these Rules or that other conditions precedent to its filing have not been fulfilled, refer the document without delay to a judge or prothonotary.

• Marginal note:Acceptance, rejection or conditional filing

  (2) On receipt of a document referred under paragraph (1)(b), the judge or prothonotary may direct the Administrator to

  • (a) accept or reject the document; or

  • (b) accept the document subject to conditions as to the making of any corrections or the fulfilling of any conditions precedent.

• Marginal note:Deemed time of filing

  (3) A document that is accepted for filing shall be considered to have been filed at the time the document was submitted for filing, unless the Court orders otherwise.

Marginal note:Proof of service

73 No document required to be served, other than an originating document, shall be filed without proof that it has been served within the time and in the manner provided for by these Rules.

Marginal note:Removal of documents improperly filed

• 74 (1) Subject to subsection (2), the Court may, at any time, order that a document that is not filed in accordance with these Rules or pursuant to an order of the Court or an Act of Parliament be removed from the Court file.

• Marginal note:Opportunity for interested parties to be heard

  (2) An order may be made of the Court’s own initiative under subsection (1) only if all interested parties have been given an opportunity to be heard.

Amendments

Marginal note:Amendments with leave

• 75 (1) Subject to subsection (2) and rule 76, the Court may, on motion, at any time, allow a party to amend a document, on such terms as will protect the rights of all parties.

• Marginal note:Limitation

  (2) No amendment shall be allowed under subsection (1) during or after a hearing unless

  • (a) the purpose is to make the document accord with the issues at the hearing;

  • (b) a new hearing is ordered; or

  • (c) the other parties are given an opportunity for any preparation necessary to meet any new or amended allegations.

Marginal note:Leave to amend

76 With leave of the Court, an amendment may be made

• (a) to correct the name of a party, if the Court is satisfied that the mistake sought to be corrected was not such as to cause a reasonable doubt as to the identity of the party, or

• (b) to alter the capacity in which a party is bringing a proceeding, if the party could have commenced the proceeding in its altered capacity at the date of commencement of the proceeding,

unless to do so would result in prejudice to a party that would not be compensable by costs or an adjournment.

Marginal note:Amendment after expiration of limitation period

77 The Court may allow an amendment under rule 76 notwithstanding the expiration of a relevant period of limitation that had not expired at the date of commencement of the proceeding.

Marginal note:Effect of amendment

78 Unless the Court orders otherwise, where these Rules provide for doing an act or taking a step in a proceeding within a prescribed period after the service or filing of a document and that document is subsequently amended in accordance with these Rules, the period shall be calculated from the day of service or filing of the amended document, as the case may be.

Marginal note:Manner of amending

• 79 (1) A filed document may be amended

  • (a) where the amendment does not require the insertion of more than 10 words in any one page, by writing the amendment on the document, serving a copy of the amended document on all other parties and filing proof of service thereof; and

  • (b) in any other case, by serving and filing an amended document in which the amendments are underlined.

• Marginal note:Citation of rule or order

  (2) An amendment made under subsection (1) shall indicate the rule or Court order under which the amendment is made.

AFFIDAVIT EVIDENCE AND EXAMINATIONS

Affidavits

Marginal note:Form of affidavits

• 80 (1) Affidavits shall be drawn in the first person, in Form 80A.

• Marginal note:Affidavit by blind or illiterate person

  (2) Where an affidavit is made by a deponent who is blind or illiterate, the person before whom the affidavit is sworn shall certify that the affidavit was read to the deponent and that the deponent appeared to understand it.

• Marginal note:Affidavit by deponent who does not understand an official language

  (2.1) Where an affidavit is written in an official language for a deponent who does not understand that official language, the affidavit shall

  • (a) be translated orally for the deponent in the language of the deponent by a competent and independent interpreter who has taken an oath, in Form 80B, as to the performance of his or her duties; and

  • (b) contain a jurat in Form 80C.

• Marginal note:Exhibits

  (3) Where an affidavit refers to an exhibit, the exhibit shall be accurately identified by an endorsement on the exhibit or on a certificate attached to it, signed by the person before whom the affidavit is sworn.

Marginal note:Content of affidavits

• 81 (1) Affidavits shall be confined to facts within the personal knowledge of the deponent, except on motions in which statements as to the deponent's belief, with the grounds therefor, may be included.

• Marginal note:Affidavits on belief

  (2) Where an affidavit is made on belief, an adverse inference may be drawn from the failure of a party to provide evidence of persons having personal knowledge of material facts.

Marginal note:Use of solicitor’s affidavit

82 Except with leave of the Court, a solicitor shall not both depose to an affidavit and present argument to the Court based on that affidavit.

Marginal note:Cross-examination on affidavits

83 A party to a motion or application may cross-examine the deponent of an affidavit served by an adverse party to the motion or application.

Marginal note:When cross-examination may be made

• 84 (1) A party seeking to cross-examine the deponent of an affidavit filed in a motion or application shall not do so until the party has served on all other parties every affidavit on which the party intends to rely in the motion or application, except with the consent of all other parties or with leave of the Court.

• Marginal note:Filing of affidavit after cross-examination

  (2) A party who has cross-examined the deponent of an affidavit filed in a motion or application may not subsequently file an affidavit in that motion or application, except with the consent of all other parties or with leave of the Court.

Marginal note:Due diligence

85 A party who intends to cross-examine the deponent of an affidavit shall do so with due diligence.

Marginal note:Transcript of cross-examination on affidavit

86 Unless the Court orders otherwise, a party who conducts a cross-examination on an affidavit shall order and pay for a transcript thereof and send a copy to each other party.

Examinations out of Court

General

Definition of examination

87 In rules 88 to 100, examination means

• (a) an examination for discovery;

• (b) the taking of evidence out of court for use at trial;

• (c) a cross-examination on an affidavit; or

• (d) an examination in aid of execution.

Marginal note:Manner of examination

• 88 (1) Subject to rules 234 and 296, an examination may be conducted orally or in writing.

• Marginal note:Electronic communications

  (2) The Court may order that an examination out of court be recorded by video recording or conducted by video-conference or any other form of electronic communication.

Oral Examinations

Marginal note:Oral examination

• 89 (1) A party requesting an oral examination shall pay the fees and disbursements related to recording the examination in accordance with Tariff A.

• Marginal note:Examination in Canada

  (2) An oral examination that takes place in Canada shall be recorded by a person authorized to record examinations for discovery under the practice and procedure of a superior court in Canada.

• Marginal note:Examination outside Canada

  (3) An oral examination that takes place in a jurisdiction outside Canada shall be recorded by a person authorized to record

  • (a) court proceedings in that jurisdiction; or

  • (b) examinations for discovery under the practice and procedure of a superior court in Canada, if the parties consent.

• Marginal note:Examination to be recorded

  (4) A person who records an oral examination shall record it word for word, including any comment made by a solicitor, other than statements that the attending parties agree to exclude from the record.

Marginal note:Place of oral examination

• 90 (1) Where a person to be examined on an oral examination resides in Canada and the person and the parties cannot agree on where to conduct the oral examination, it shall be conducted in the place closest to the person’s residence where a superior court sits.

• Marginal note:Person residing outside Canada

  (2) Where a person to be examined on an oral examination resides outside Canada, the time, place, manner and expenses of the oral examination shall be as agreed on by the person and the parties or, on motion, as ordered by the Court.

• Marginal note:Travel expenses

  (3) No person is required to attend an oral examination unless reasonable travel expenses have been paid or tendered to the person.

Marginal note:Direction to attend

• 91 (1) A party who intends to conduct an oral examination shall serve a direction to attend, in Form 91, on the person to be examined and a copy thereof on every other party.

• Marginal note:Production for inspection at examination

  (2) A direction to attend may direct the person to be examined to produce for inspection at the examination

  • (a) in respect of an examination for discovery, all documents and other material in the possession, power or control of the party on behalf of whom the person is being examined that are relevant to the matters in issue in the action;

  • (b) in respect of the taking of evidence for use at trial, all documents and other material in that person’s possession, power or control that are relevant to the matters in issue in the action;

  • (c) in respect of a cross-examination on an affidavit, all documents and other material in that person’s possession, power or control that are relevant to the application or motion; and

  • (d) in respect of an examination in aid of execution, all documents and other material in that person’s possession, power or control that are relevant to the person’s ability to satisfy the judgment.

• Marginal note:Service of direction to attend

  (3) A direction to attend an oral examination shall be served

  • (a) where the person to be examined is an adverse party, at least six days before the day of the proposed examination;

  • (b) where the person to be examined is not a party to the proceeding, at least 10 days before the day of the proposed examination; or

  • (c) where the person is to be cross-examined on an affidavit filed in support of a motion, at least 24 hours before the hearing of the motion.

Marginal note:Swearing

92 A person to be examined on an oral examination shall be sworn before being examined.

Marginal note:Examining party to provide interpreter

• 93 (1) Where a person to be examined on an oral examination understands neither French nor English or is deaf or mute, the examining party shall arrange for the attendance and pay the fees and disbursements of an independent and competent person to accurately interpret everything said during the examination, other than statements that the attending parties agree to exclude from the record.

• Marginal note:Administrator to provide interpreter

  (2) Where an interpreter is required because the examining party wishes to conduct an oral examination for discovery in one official language and the person to be examined wishes to be examined in the other official language, on the request of the examining party made at least six days before the examination, the Administrator shall arrange for the attendance and pay the fees and disbursements of an independent and competent interpreter.

• Marginal note:Oath of interpreter

  (3) Before aiding in the examination of a witness, an interpreter shall take an oath, in Form 93, as to the performance of his or her duties.

Marginal note:Production of documents on examination

• 94 (1) Subject to subsection (2), a person who is to be examined on an oral examination or the party on whose behalf that person is being examined shall produce for inspection at the examination all documents and other material requested in the direction to attend that are within that person’s or party’s possession and control, other than any documents for which privilege has been claimed or for which relief from production has been granted under rule 230.

• Marginal note:Relief from production

  (2) On motion, the Court may order that a person to be examined or the party on whose behalf that person is being examined be relieved from the requirement to produce for inspection any document or other material requested in a direction to attend, if the Court is of the opinion that the document or other material requested is irrelevant or, by reason of its nature or the number of documents or amount of material requested, it would be unduly onerous to require the person or party to produce it.

Marginal note:Objections

• 95 (1) A person who objects to a question that is asked in an oral examination shall briefly state the grounds for the objection for the record.

• Marginal note:Preliminary answer

  (2) A person may answer a question that was objected to in an oral examination subject to the right to have the propriety of the question determined, on motion, before the answer is used at trial.

Marginal note:Improper conduct

• 96 (1) A person being examined may adjourn an oral examination and bring a motion for directions if the person believes that he or she is being subjected to an excessive number of questions or to improper questions, or that the examination is being conducted in bad faith or in an abusive manner.

• Marginal note:Adjournment to seek directions

  (2) A person conducting an oral examination may adjourn the examination and bring a motion for directions if the person believes answers to questions being provided are evasive or if the person being examined fails to produce a document or other material requested under rule 94.

• Marginal note:Sanctions

  (3) On a motion under subsection (1) or (2), the Court may sanction, through costs, a person whose conduct necessitated the motion or a person who unnecessarily adjourned the examination.

Marginal note:Failure to attend or misconduct

97 Where a person fails to attend an oral examination or refuses to take an oath, answer a proper question, produce a document or other material required to be produced or comply with an order made under rule 96, the Court may

• (a) order the person to attend or re-attend, as the case may be, at his or her own expense;

• (b) order the person to answer a question that was improperly objected to and any proper question arising from the answer;

• (c) strike all or part of the person’s evidence, including an affidavit made by the person;

• (d) dismiss the proceeding or give judgment by default, as the case may be; or

• (e) order the person or the party on whose behalf the person is being examined to pay the costs of the examination.

Marginal note:Contempt order

98 A person who does not comply with an order made under rule 96 or 97 may be found in contempt.

Written Examinations

Marginal note:Written examination

• 99 (1) A party who intends to examine a person by way of a written examination shall serve a list of concise, separately numbered questions in Form 99A for the person to answer.

• Marginal note:Objections

  (2) A person who objects to a question in a written examination may bring a motion to have the question struck out.

• Marginal note:Answers to written examination

  (3) A person examined by way of a written examination shall answer by way of an affidavit.

• Marginal note:Service of answers

  (4) An affidavit referred to in subsection (3) shall be in Form 99B and be served on every other party within 30 days after service of the written examination under subsection (1).

Marginal note:Application of oral examination rules

100 Rules 94, 95, 97 and 98 apply to written examinations, with such modifications as are necessary.

JOINDER, INTERVENTION AND PARTIES

Joinder

Marginal note:Joinder of claims

• 101 (1) Subject to rule 302, a party to a proceeding may request relief against another party to the same proceeding in respect of more than one claim.

• Marginal note:Separate capacity

  (2) A party may request relief in a separate capacity in respect of different claims in a single proceeding.

• Marginal note:Interest in all relief not essential

  (3) Not all parties to a proceeding need have an interest in all relief claimed in the proceeding.

Marginal note:Multiple persons joined as parties

102 Two or more persons who are represented by the same solicitor may join in one proceeding as plaintiffs, applicants or appellants where

• (a) if separate proceedings were brought by each of them, a common question of law or fact would arise in all of the proceedings; or

• (b) the relief claimed, whether joint, several or alternative, arises from substantially the same facts or matter.

Marginal note:Misjoinder and nonjoinder

• 103 (1) No proceeding shall be defeated by reason of the misjoinder or nonjoinder of a person or party.

• Marginal note:Issues to be determined

  (2) In a proceeding in which a proper person or party has not been joined, the Court shall determine the issues in dispute so far as they affect the rights and interests of the persons who are parties to the proceeding.

Marginal note:Order for joinder or relief against joinder

• 104 (1) At any time, the Court may

  • (a) order that a person who is not a proper or necessary party shall cease to be a party; or

  • (b) order that a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined be added as a party, but no person shall be added as a plaintiff or applicant without his or her consent, signified in writing or in such other manner as the Court may order.

• Marginal note:Directions

  (2) An order made under subsection (1) shall contain directions as to amendment of the originating document and any other pleadings.

Marginal note:Consolidation of proceedings

105 The Court may order, in respect of two or more proceedings,

• (a) that they be consolidated, heard together or heard one immediately after the other;

• (b) that one proceeding be stayed until another proceeding is determined; or

• (c) that one of the proceedings be asserted as a counterclaim or cross-appeal in another proceeding.

Marginal note:Separate determination of claims and issues

106 Where the hearing of two or more claims or parties in a single proceeding would cause undue complication or delay or would prejudice a party, the Court may order that

• (a) claims against one or more parties be pursued separately;

• (b) one or more claims be pursued separately;

• (c) a party be compensated for, or relieved from, attending any part of the proceeding in which the party does not have an interest; or

• (d) the proceeding against a party be stayed on condition that the party is bound by any findings against another party.

Marginal note:Separate determination of issues

• 107 (1) The Court may, at any time, order the trial of an issue or that issues in a proceeding be determined separately.

• Marginal note:Court may stipulate procedure

  (2) In an order under subsection (1), the Court may give directions regarding the procedures to be followed, including those applicable to examinations for discovery and the discovery of documents.

Interpleader

Marginal note:Interpleader

• 108 (1) Where two or more persons make conflicting claims against another person in respect of property in the possession of that person and that person

  • (a) claims no interest in the property, and

  • (b) is willing to deposit the property with the Court or dispose of it as the Court directs,

  that person may bring an ex parte motion for directions as to how the claims are to be decided.

• Marginal note:Directions

  (2) On a motion under subsection (1), the Court shall give directions regarding

  • (a) notice to be given to possible claimants and advertising for claimants;

  • (b) the time within which claimants shall be required to file their claims; and

  • (c) the procedure to be followed in determining the rights of the claimants.

Intervention

Marginal note:Leave to intervene

• 109 (1) The Court may, on motion, grant leave to any person to intervene in a proceeding.

• Marginal note:Contents of notice of motion

  (2) Notice of a motion under subsection (1) shall

  • (a) set out the full name and address of the proposed intervener and of any solicitor acting for the proposed intervener; and

  • (b) describe how the proposed intervener wishes to participate in the proceeding and how that participation will assist the determination of a factual or legal issue related to the proceeding.

• Marginal note:Directions

  (3) In granting a motion under subsection (1), the Court shall give directions regarding

  • (a) the service of documents; and

  • (b) the role of the intervener, including costs, rights of appeal and any other matters relating to the procedure to be followed by the intervener.

Questions of General Importance

Marginal note:Notice to Attorney General

110 Where a question of general importance is raised in a proceeding, other than a question referred to in section 57 of the Act,

• (a) any party may serve notice of the question on the Attorney General of Canada and any attorney general of a province who may be interested;

• (b) the Court may direct the Administrator to bring the proceeding to the attention of the Attorney General of Canada and any attorney general of a province who may be interested; and

• (c) the Attorney General of Canada and the attorney general of a province may apply for leave to intervene.

Parties

Marginal note:Unincorporated associations

111 A proceeding may be brought by or against an unincorporated association in the name of the association.

Marginal note:Partnerships

111.1 A proceeding by or against two or more persons as partners may be brought in the name of the partnership.

Marginal note:Sole proprietorships

111.2 A proceeding by or against a person carrying on business as a sole proprietor may be brought in the name of the sole proprietorship.

Marginal note:Estates and trusts

• 112 (1) A proceeding may be brought by or against the trustees, executors or administrators of an estate or trust without joining the beneficiaries of the estate or trust.

• Marginal note:Order binding on beneficiaries

  (2) Unless the Court orders otherwise, beneficiaries of an estate or trust are bound by an order against the estate or trust.

Marginal note:Where deceased has no representative

• 113 (1) Where a party to a proceeding is deceased and the estate of the deceased is not represented, the Court may appoint a person to represent the estate of the deceased or order that the proceeding continue without representation of the estate.

• Marginal note:Notice

  (2) Before making an order under subsection (1), the Court may require that notice be given to all persons who have an interest in the estate of the deceased.

114 [Repealed, SOR/2002-417, s. 12]

Marginal note:Appointment of representatives

• 115 (1) The Court may appoint one or more persons to represent

  • (a) unborn or unascertained persons who may have a present, future, contingent or other interest in a proceeding; or

  • (b) a person under a legal disability against or by whom a proceeding is brought.

• Marginal note:Who may be appointed

  (2) The Court may appoint as a representative under subsection (1)

  • (a) a person who has already been appointed as such a representative under the laws of a province; or

  • (b) a person eligible to act as a representative in the jurisdiction in which the person to be represented is domiciled.

• Marginal note:Order binding on represented person

  (3) Unless the Court orders otherwise, a person for whom a representative is appointed under subsection (1) is bound by any order made in the proceeding.

Transmission of Interest

Marginal note:Proceeding not to terminate

116 A proceeding is not terminated only by reason that a party to a proceeding dies or becomes bankrupt or, in the case of a corporation, ceases to exist.

Marginal note:Assignment, transmission or devolution of interest or liability

• 117 (1) Subject to subsection (2), where an interest of a party in, or the liability of a party under, a proceeding is assigned or transmitted to, or devolves upon, another person, the other person may, after serving and filing a notice and affidavit setting out the basis for the assignment, transmission or devolution, carry on the proceeding.

• Marginal note:Objection to person continuing

  (2) If a party to a proceeding objects to its continuance by a person referred to in subsection (1), the person seeking to continue the proceeding shall bring a motion for an order to be substituted for the original party.

• Marginal note:Court may give directions

  (3) In an order given under subsection (2), the Court may give directions as to the further conduct of the proceeding.

Marginal note:Failure to continue

118 Where an interest of a party in, or the liability of a party under, a proceeding has been assigned or transmitted to, or devolves upon, a person and that person has not, within 30 days, served a notice and affidavit referred to in subsection 117(1) or obtained an order under subsection 117(2), any other party to the proceeding may bring a motion for default judgment or to have the proceeding dismissed.

REPRESENTATION OF PARTIES

General

Marginal note:Individuals

119 Subject to rule 121, an individual may act in person or be represented by a solicitor in a proceeding.

Marginal note:Corporations or unincorporated associations

120 A corporation, partnership or unincorporated association shall be represented by a solicitor in all proceedings, unless the Court in special circumstances grants leave to it to be represented by an officer, partner or member, as the case may be.

Marginal note:Parties under legal disability or acting in representative capacity

121 Unless the Court in special circumstances orders otherwise, a party who is under a legal disability or who acts or seeks to act in a representative capacity, including in a class action, shall be represented by a solicitor.

Marginal note:Rights and obligations of party acting in person

122 Subject to paragraphs 152(2)(a) and 146(1)(b), unless the Court orders otherwise, a party not represented by a solicitor or a person authorized under rule 120 to represent a party shall do everything required, and may do anything permitted, to be done by a solicitor under these Rules.

Solicitor of Record

Marginal note:Deemed solicitor of record

123 Where a party takes a step in a proceeding by filing or serving a document signed by a solicitor, that solicitor is the solicitor of record for the party.

Marginal note:Notice of change or removal of solicitor

124 A party may change or remove its solicitor of record or appoint a solicitor of record by serving and filing a notice in Form 124A, 124B or 124C, as the case may be.

Marginal note:Motion for removal of solicitor of record

• 125 (1) Where a solicitor of record ceases to act for a party and the party has not changed its solicitor of record in accordance with rule 124, the Court may, on a motion of the solicitor, order that the solicitor be removed from the record.

• Marginal note:Manner of service

  (2) A notice of motion under subsection (1) shall be served on the party formerly represented by the solicitor

  • (a) by personal service; or

  • (b) where personal service cannot practicably be effected,

    • (i) by mailing the notice of motion to the party at the party’s last known address, or

    • (ii) if no mailing address of the party is known, by depositing the notice of motion at the Registry office where the proceeding was initiated.

• Marginal note:Order to be served

  (3) An order made under subsection (1) removing a solicitor of record of a party shall be served on the party in the manner set out in subsection (2) and on all other parties to the proceeding.

• Marginal note:Proof of service

  (4) An order under subsection (1) does not take effect until proof of its service has been filed.

Marginal note:Solicitor of record ceasing to act

126 A party is deemed not to be represented by a solicitor if the party does not appoint a new solicitor after its solicitor of record

• (a) dies; or

• (b) ceases to act for the party because of

  • (i) appointment to a public office incompatible with the solicitor’s profession,

  • (ii) suspension or disbarment as a solicitor, or

  • (iii) an order made under rule 125.

SERVICE OF DOCUMENTS

Personal Service

Marginal note:Service of originating documents

• 127 (1) Subject to subsection (2), an originating document that has been issued, other than in an appeal from the Federal Court to the Federal Court of Appeal or an ex parte application under rule 327, shall be served personally in a manner set out in rules 128 to 133.

• Marginal note:Exception

  (2) A party who has already participated in the proceeding need not be personally served under subsection (1).

Marginal note:Personal service on individual

• 128 (1) Personal service of a document on an individual, other than an individual under a legal disability, is effected

  • (a) by leaving the document with the individual;

  • (b) by leaving the document with an adult person residing at the individual’s place of residence, and mailing a copy of the document to the individual at that address;

  • (c) where the individual is carrying on a business in Canada, other than a partnership, in a name or style other than the individual’s own name, by leaving the document with the person apparently having control or management of the business at any place where the business is carried on in Canada;

  • (d) by mailing the document to the individual’s last known address, accompanied by an acknowledgement of receipt form in Form 128, if the individual signs and returns the acknowledgement of receipt card or signs a post office receipt;

  • (e) by mailing the document by registered mail to the individual’s last known address, if the individual signs a post office receipt; or

  • (f) in any other manner provided by an Act of Parliament applicable to the proceeding.

• Marginal note:Effective day of service

  (2) Service under paragraph (1)(b) is effective on the tenth day after the copy is mailed.

• Marginal note:Effective day of service

  (3) Service under paragraph (1)(d) or (e) is effective on the day of receipt indicated on the acknowledgement of receipt form or post office receipt, as the case may be.

Marginal note:Personal service on individual under legal disability

129 Personal service of a document on an individual under a legal disability is effected by serving the individual in such a manner as the Court may order, having regard to the manner in which the interests of the person will be best protected.

Marginal note:Personal service on corporation

• 130 (1) Subject to subsection (2), personal service of a document on a corporation is effected

  • (a) by leaving the document

    • (i) with an officer or director of the corporation or a person employed by the corporation as legal counsel, or

    • (ii) with the person apparently in charge, at the time of the service, of the head office or of the branch or agency in Canada where the service is effected;

  • (b) in the manner provided by any Act of Parliament applicable to the proceeding; or

  • (c) in the manner provided for service on a corporation in proceedings before a superior court in the province in which the service is being effected.

• Marginal note:Personal service on municipal corporation

  (2) Personal service of a document on a municipal corporation is effected by leaving the document with the chief executive officer or legal counsel of the municipality.

Marginal note:Personal service on partnership

131 Personal service of a document on a partnership is effected by leaving the document with

• (a) where the partnership is a limited partnership, a general partner; and

• (b) in any other case, a partner or the person who has the control or management of the partnership business at its principal place of business in Canada.

Marginal note:Personal service on sole proprietorship

131.1 Personal service of a document on a sole proprietorship is effected by leaving the document with

• (a) the sole proprietor; or

• (b) the person apparently in charge, at the time of the service, of the place of business of the sole proprietorship in Canada where the service is effected.

Marginal note:Personal service on unincorporated association

132 Personal service of a document on an unincorporated association is effected by leaving the document with

• (a) an officer of the association; or

• (b) the person who has the control or management of the affairs of the association at any office or premises occupied by the association.

Marginal note:Personal service of originating document on the Crown

• 133 (1) Personal service of an originating document on the Crown, the Attorney General of Canada or any other minister of the Crown is effected by filing the originating document and two copies of it in the Registry.

• Marginal note:Copy to Deputy Attorney General

  (2) The Administrator shall forthwith transmit a certified copy of an originating document filed under subsection (1)

  • (a) where it was filed at the principal office of the Registry, to the office of the Deputy Attorney General of Canada in Ottawa; and

  • (b) where it was filed at a local office, to the Director of the regional office of the Department of Justice referred to in subsection 4(2) of the Crown Liability and Proceedings (Provincial Court) Regulations.

• Marginal note:When service is effective

  (3) Service under subsection (1) is effective at the time the document is filed.

Marginal note:Acceptance of service by solicitor

134 Personal service of a document on a party may be effected by the acceptance of service by the party’s solicitor.

Marginal note:Deemed personal service on a person outside Canada

135 Where a person

• (a) is resident outside Canada and, in the ordinary course of business, enters into contracts or business transactions in Canada in connection with which the person regularly makes use of the services of a person resident in Canada, and

• (b) made use of such services in connection with a contract or business transaction,

in a proceeding arising out of the contract or transaction, personal service of a document on the person resident outside Canada is effected by personally serving the person resident in Canada.

Marginal note:Substituted service or dispensing with service

• 136 (1) Where service of a document that is required to be served personally cannot practicably be effected, the Court may order substitutional service or dispense with service.

• Marginal note:Motion may be made ex parte

  (2) A motion for an order under subsection (1) may be made ex parte.

• Marginal note:Order to be served

  (3) A document served by substitutional service shall make reference to the order that authorized the substitutional service.

Service outside Canada

Marginal note:Service outside Canada

• 137 (1) Subject to subsection (2), a document to be personally served outside Canada may be served in the manner set out in rules 127 to 136 or in the manner prescribed by the law of the jurisdiction in which service is to be effected.

• Marginal note:Hague Convention

  (2) Where service is to be effected in a contracting state to the Hague Convention, service shall be as provided by the Convention.

• Marginal note:Proof of service

  (3) Service of documents outside Canada may be proven

  • (a) in the manner set out in rule 146;

  • (b) in the manner provided by the law of the jurisdiction in which service was effected; or

  • (c) in accordance with the Hague Convention, if service is effected in a contracting state.

Non-personal Service

Marginal note:Service of document other than originating document

138 Unless otherwise provided in these Rules, a document that is not an originating document need not be served personally.

Marginal note:Service on other parties

139 Documents required to be served by other than personal service shall be served, subject to subsection 36(3) and rule 145, on all other parties in the manner set out in rule 140.

Marginal note:Non-personal service

• 140 (1) Service on a party of a document that is not required to be personally served may be effected by personal service or

  • (a) by leaving the document at the party's address for service;

  • (b) by mailing the document to the party's address for service;

  • (c) by delivering the document by courier to the party's address for service;

  • (d) by transmitting the document by fax

    • (i) where the party has a solicitor of record, to the solicitor of record, and

    • (ii) where the party has no solicitor of record, to the party; or

  • (e) in such other manner as the Court may on motion order.

• Marginal note:Where no address for service

  (2) Where a party has no address for service at the time of service, a document that is not required to be personally served may be served by leaving the document at, or sending it by registered mail or courier to,

  • (a) where the party is an individual, the party's usual or last known address; or

  • (b) where the party is an unincorporated body, a group of persons or a corporation, the principal or last known address of the body or group.

• Marginal note:Where no known address

  (3) Where a party has no known address at the time of service, a document that is not required to be personally served may be served by depositing the document at the office of the Registry where the proceeding was initiated.

• Marginal note:Fax cover page

  (4) A document that is served by fax shall include a cover page in Form 140.

Marginal note:Effective date of service by ordinary mail

• 141 (1) Service of a document by ordinary mail is effective on the tenth day after it was mailed.

• Marginal note:Effective date of service by registered mail or courier

  (2) Service of a document by registered mail or courier is effective on the day of receipt indicated on the post office or courier receipt, as the case may be.

Marginal note:Filing before service effective

142 Where a document is served by ordinary mail, it may be filed before the day on which service is effective.

Marginal note:Service by fax

143 The following documents may not be served by fax without the consent of the recipient:

• (a) a motion record, application record, trial record, appeal book or book of authorities; or

• (b) any other document that is longer than 20 pages.

General

Marginal note:Service at any time

• 144 (1) Service of a document under these Rules may be effected at any time.

• Marginal note:Service after 5:00 p.m.

  (2) A document, other than an originating document or a warrant, that is served on a holiday or after 5:00 p.m. at the recipient's local time is deemed to be served at 9:00 a.m. on the next business day.

Marginal note:Where no further service required

145 Subject to subsection 207(2), where a person has been served with an originating document and

• (a) has not filed a notice of appearance or a defence within the time set out in these Rules, or

• (b) has no address for service,

no further documents in the proceeding need be served on the person prior to final judgment unless the Court orders otherwise.

Marginal note:Proof of service

• 146 (1) Service of a document may be proven

  • (a) by an affidavit of service in Form 146A or, where the service is effected in the Province of Quebec, by a certificate of service of a sheriff, bailiff or other authorized person in accordance with the Code of Civil Procedure of the Province of Quebec;

  • (b) in respect of a document not required to be personally served, by a certificate by a solicitor in Form 146B;

  • (c) where a document was served under paragraph 140(1)(a) by leaving it at the office of a solicitor, by an acknowledgement of service signed and dated by the solicitor or by someone employed by the solicitor; or

  • (d) where a document was served under rule 134, by an acceptance of service signed and dated by the solicitor.

• Marginal note:Signature of agent of solicitor

  (2) Where an acknowledgement of service under paragraph (1)(c) is signed by a person on behalf of a solicitor, the person shall sign his or her own name as agent for the solicitor.

Marginal note:Validating service

147 Where a document has been served in a manner not authorized by these Rules or by an order of the Court, the Court may consider the document to have been validly served if it is satisfied that the document came to the notice of the person to be served or that it would have come to that person's notice except for the person's avoidance of service.

Marginal note:Where document does not reach person served

148 On the motion of a party who did not have notice of a served document or did not obtain notice of it at the time of service, the Court may set aside the consequences of default or grant an extension of time or an adjournment, notwithstanding that the party was served with the document in accordance with these Rules.

PAYMENTS

Marginal note:Payments into court

• 149 (1) A person who pays money into court shall deliver to the Registry

  • (a) a bill of exchange drawn on a bank, trust company, credit union or caisse populaire or any other bill of exchange authorized by order of the Court, payable to the order of the Receiver General; and

  • (b) three copies of a tender of payment into court in Form 149.

• Marginal note:Effective date of payment

  (2) Payment into court by a bill of exchange that is paid on presentation for payment is effective on the day on which it was delivered to the Registry.

• Marginal note:Receipt for payment

  (3) Where a bill of exchange is paid, the Administrator shall endorse or acknowledge receipt on a copy of the tender of payment into court and return it to the person who made the payment.

Marginal note:Payment out of court

150 Where an order has been made by the Court for payment out of court of money that is in the Consolidated Revenue Fund, a requisition shall be made by the Administrator to the Receiver General for an instrument for the amount to be paid out.

FILING OF CONFIDENTIAL MATERIAL

Marginal note:Motion for order of confidentiality

• 151 (1) On motion, the Court may order that material to be filed shall be treated as confidential.

• Marginal note:Demonstrated need for confidentiality

  (2) Before making an order under subsection (1), the Court must be satisfied that the material should be treated as confidential, notwithstanding the public interest in open and accessible court proceedings.

Marginal note:Marking of confidential material

• 152 (1) Where the material is required by law to be treated confidentially or where the Court orders that material be treated confidentially, a party who files the material shall separate and clearly mark it as confidential, identifying the legislative provision or the Court order under which it is required to be treated as confidential.

• Marginal note:Access to confidential material

  (2) Unless otherwise ordered by the Court,

  • (a) only a solicitor of record, or a solicitor assisting in the proceeding, who is not a party is entitled to have access to confidential material;

  • (b) confidential material shall be given to a solicitor of record for a party only if the solicitor gives a written undertaking to the Court that he or she will

    • (i) not disclose its content except to solicitors assisting in the proceeding or to the Court in the course of argument,

    • (ii) not permit it to be reproduced in whole or in part, and

    • (iii) destroy the material and any notes on its content and file a certificate of their destruction or deliver the material and notes as ordered by the Court, when the material and notes are no longer required for the proceeding or the solicitor ceases to be solicitor of record;

  • (c) only one copy of any confidential material shall be given to the solicitor of record for each party; and

  • (d) no confidential material or any information derived therefrom shall be disclosed to the public.

• Marginal note:Order to continue

  (3) An order made under subsection (1) continues in effect until the Court orders otherwise, including for the duration of any appeal of the proceeding and after final judgment.

REFERENCES

Marginal note:Order for reference

• 153 (1) The Court may, for the purpose of making an inquiry and report, refer any question of fact in a proceeding to a judge or other person designated by the Chief Justice of the court before which the proceeding is pending.

• Marginal note:Directions on reference

  (2) Notwithstanding rules 155 to 160, the Court may at any time give directions regarding the conduct of a reference.

Marginal note:Stay of related proceedings

154 Where a reference is made under rule 153, on motion, the Court may stay any proceeding related to the reference, including a proceeding that has previously been stayed, for a period of not more than six months.

Marginal note:Requisition to fix time and place of reference

• 155 (1) On a reference made under rule 153, the referee shall, on the requisition of a party, fix a time and place for the hearing of the reference.

• Marginal note:Documents to be provided to referee

  (2) A party who makes a requisition under subsection (1) shall provide the referee with a statement of the issues and copies of the pleadings and order of reference.

Marginal note:Conduct of reference

156 Unless the Court orders otherwise, a referee shall adopt the simplest, least expensive and most expeditious manner of conducting the reference.

Marginal note:Order for examination or production

157 A referee may order that parties be examined for discovery and order the production for inspection and copying by a party of any document or other material relevant to a matter in issue, at the time and place and in the manner set out in the order.

Marginal note:Attendance of witnesses

• 158 (1) The attendance of witnesses to give evidence at a reference shall be enforced by subpoena.

• Marginal note:Recording of evidence on reference

  (2) The testimony of a witness at a reference shall be recorded.

Marginal note:Powers of referee

• 159 (1) Subject to subsection (2), a referee shall have the same power and authority in matters of practice and procedure as would a judge of the Court presiding at the trial of an action.

• Marginal note:Limitation

  (2) A referee shall not commit a person to prison or enforce an order for attachment.

Marginal note:Referral of question to Court

• 160 (1) A referee may, before the conclusion of a reference or by a report on the reference, submit any question for determination by the Court.

• Marginal note:Response to referral

  (2) On receipt of a submission under subsection (1), the Court may

  • (a) require any explanations or reasons from the referee; or

  • (b) remit the matter, or any part thereof, for further inquiry to the same or another referee.

Marginal note:Referee's report

• 161 (1) The report of a referee shall include the findings of the referee in the same form as an order of the Court.

• Marginal note:Filing of report

  (2) The report of a referee, the record of any evidence taken at the hearing of the reference and any exhibits or other documents provided to the referee shall be filed as soon as possible after the report is signed.

• Marginal note:Notice of report

  (3) On the filing of a report of a referee, the Administrator shall forthwith send a copy of it to all parties by registered mail.

Marginal note:Report of referee who is a judge

162 The report of a referee who is a judge is final and becomes a judgment of the Court when it is filed.

Marginal note:Appeal of referee’s findings

• 163 (1) A party may appeal the findings of a report of a referee who is not a judge on motion to the court that ordered the reference.

• Marginal note:Service of appeal

  (2) Notice of a motion under subsection (1) shall be served and filed within 30 days after filing of the report of a referee and at least 10 days before the day fixed for hearing of the motion.

• Marginal note:Powers of Court on appeal

  (3) On an appeal under subsection (1), the Court may confirm, vary or reverse the findings of the report and deliver judgment or refer it back to the referee, or to another referee, for further inquiry and report.

Marginal note:Report final if not appealed

• 164 (1) The report of a referee who is not a judge that is not appealed becomes final 30 days after it is filed.

• Marginal note:Final report deemed judgment of Court

  (2) A report of a referee, once final, becomes a judgment of the Court.

SUMMARY DISPOSITION

Marginal note:Discontinuances

165 A party may discontinue all or part of a proceeding by serving and filing a notice of discontinuance.

Marginal note:Notice of discontinuance

166 A party shall file a declaration of settlement or a notice of discontinuance in Form 166 in a proceeding that has been concluded other than by a judgment or discontinuance on consent.

Marginal note:Dismissal for delay

167 The Court may, at any time, on the motion of a party who is not in default of any requirement of these Rules, dismiss a proceeding or impose other sanctions on the ground that there has been undue delay by a plaintiff, applicant or appellant in prosecuting the proceeding.

Marginal note:Dismissal where continuation impossible

168 Where following an order of the Court it is not possible to continue a proceeding, the Court may dismiss the proceeding.

PART 4Actions

APPLICATION OF THIS PART

Marginal note:Application

169 This Part applies to all proceedings that are not applications or appeals, including

• (a) references under section 18 of the Citizenship Act;

• (b) applications under subsection 33(1) of the Marine Liability Act; and

• (c) any other proceedings required or permitted by or under an Act of Parliament to be brought as an action.

Marginal note:Rules applicable to counterclaims and third parties

170 Except as provided in rules 189 to 199, the rules in this Part applicable to plaintiffs and defendants apply, with such modifications as are necessary, to parties bringing or defending counterclaims and third party claims.

PLEADINGS IN AN ACTION

General

Marginal note:Pleadings

171 The following pleadings may be filed:

• (a) in respect of an action,

  • (i) a statement of claim, in Form 171A,

  • (ii) a statement of defence, in Form 171B, and

  • (iii) a reply, in Form 171C;

• (b) in respect of a counterclaim,

  • (i) a counterclaim, in Form 171D or 171E,,

  • (ii) a defence to counterclaim, in Form 171F, and

  • (iii) a reply to a defence to counterclaim, in Form 171G; and

• (c) in respect of a third party claim,

  • (i) a third party claim, in Form 171H or 171I,

  • (ii) a third party defence, in Form 171J, and

  • (iii) a reply to a third party defence, in Form 171K.

Marginal note:Pleading after a reply

172 No pleading may be filed after a reply without leave of the Court.

Marginal note:Form of pleadings

• 173 (1) Pleadings shall be divided into consecutively numbered paragraphs.

• Marginal note:Allegations set out separately

  (2) Every allegation in a pleading shall, as far as is practicable, be set out in a separate paragraph.

Marginal note:Material facts

174 Every pleading shall contain a concise statement of the material facts on which the party relies, but shall not include evidence by which those facts are to be proved.

Marginal note:Pleading law

175 A party may raise any point of law in a pleading.

Marginal note:Conditions precedent

• 176 (1) The performance or occurrence of a condition precedent to the assertion of a claim or defence need not be pleaded.

• Marginal note:Contesting condition precedent

  (2) The non-performance or non-occurrence of a condition precedent shall be pleaded.

Marginal note:Documents or conversations

177 A pleading shall briefly describe any document or conversation referred to in the pleading, but need not set out the exact words of the document or conversation unless the words are themselves material.

Marginal note:Alternative claims or defences

178 A party may plead claims or defences in the alternative.

Marginal note:Subsequent facts

179 A party may plead a fact that occurs after the commencement of an action, even though the fact gives rise to a new claim or defence.

Marginal note:Inconsistent pleading

180 A party may plead an allegation of fact, or raise a new ground of claim in a pleading, that is inconsistent with a previous pleading only if the party amends the previous pleading accordingly.

Marginal note:Particulars

• 181 (1) A pleading shall contain particulars of every allegation contained therein, including

  • (a) particulars of any alleged misrepresentation, fraud, breach of trust, wilful default or undue influence; and

  • (b) particulars of any alleged state of mind of a person, including any alleged mental disorder or disability, malice or fraudulent intention.

• Marginal note:Further and better particulars

  (2) On motion, the Court may order a party to serve and file further and better particulars of any allegation in its pleading

Statements of Claim

Marginal note:Claims to be specified

182 Every statement of claim, counterclaim and third party claim shall specify

• (a) the nature of any damages claimed;

• (b) where monetary relief is claimed, whether the amount claimed, exclusive of interest and costs, exceeds $50,000;

• (c) the value of any property sought to be recovered;

• (d) any other specific relief being claimed, other than costs; and

• (e) whether the action is being proceeded with as a simplified action.

Subsequent Pleadings

Marginal note:Admissions

183 In a defence or subsequent pleading, a party shall

• (a) admit every allegation of material fact in the pleadings of every adverse party that is not disputed;

• (b) where it is intended to prove a version of facts that differs from that relied on by an adverse party, plead that version of the facts; and

• (c) plead any matter or fact that

  • (i) might defeat a claim or defence of an adverse party, or

  • (ii) might take an adverse party by surprise if it were not pleaded.

Marginal note:Deemed denial

• 184 (1) All allegations of fact in a pleading that are not admitted are deemed to be denied.

• Marginal note:Proof not required

  (2) Unless denied by an adverse party, it is not necessary that a party prove

  • (a) its right to claim in a representative capacity; or

  • (b) its constitution as a partnership, association or corporation.

Marginal note:Effect of denial

185 Where a party alleges an agreement in a pleading, a bare denial of the agreement pleaded by another party shall be construed only as a denial of the making of the agreement or of the facts from which such an agreement may be implied and not as a denial of the legality or legal sufficiency of the agreement.

Marginal note:Set-off

186 Where a claim to a sum of money, including a sum that is not ascertained, is relied on as a defence to all or part of a claim made by an adverse party, it may be included in a defence as a set-off against the claim, whether or not it is also added as a counterclaim.

Marginal note:Judgment for balance

187 Where judgments in an action and in a counterclaim are given at the same time, the Court may set off the amount of one award against the other, without prejudice as to costs.

Marginal note:Defence of tender

188 Subject to section 31.2 of the Crown Liability and Proceedings Act, a defence of tender before action may not be pleaded unless the defendant has paid into court the amount alleged to have been tendered.

Counterclaims

Marginal note:When available

• 189 (1) A defendant who claims to be entitled to relief against a plaintiff may make a counterclaim instead of bringing a separate action.

• Marginal note:Statement of defence and counterclaim

  (2) A counterclaim shall be included in the same document as the statement of defence.

• Marginal note:Style of cause

  (3) A statement of defence and counterclaim shall contain a second style of cause identifying the plaintiff by counterclaim and the defendants to the counterclaim.

Marginal note:Counterclaim may proceed independently

190 A counterclaim may be proceeded with notwithstanding that judgment is given in the action or that the action is stayed or discontinued.

Marginal note:Counterclaim against person not already a party

• 191 (1) Where a defendant who counterclaims alleges that a person who is not a party to the action is liable to the defendant along with the plaintiff in respect of the subject-matter of the counterclaim, the defendant may join that person as a defendant to the counterclaim.

• Marginal note:When counterclaim to be issued

  (2) Where a defendant adds a person who is not already a party as a defendant to a counterclaim, the defendant’s statement of defence and counterclaim shall be

  • (a) issued within the time set out in rule 204 for the service and filing of a statement of defence; and

  • (b) served on the person and on the other parties within 30 days after it is issued.

Marginal note:Defence to counterclaim

• 192 (1) A defendant to a counterclaim who is already a party to the action shall defend the counterclaim by serving and filing a defence to counterclaim within 30 days after service of the statement of defence and counterclaim.

• Marginal note:Reply and defence to counterclaim

  (2) A reply and a defence to counterclaim by a plaintiff against whom a counterclaim has been made shall be included in the same document.

Third Party Claims

Marginal note:Availability as of right

193 A defendant may commence a third party claim against a co-defendant, or against a person who is not a party to the action, who the defendant claims is or may be liable to the defendant for all or part of the plaintiff’s claim.

Marginal note:Where leave of Court required

194 With leave of the Court, a defendant may commence a third party claim against a co-defendant, or against another person who is not a defendant to the action, who the defendant claims

• (a) is or may be liable to the defendant for relief, other than that referred to in rule 193, relating to the subject-matter of the action; or

• (b) should be bound by the determination of an issue between the plaintiff and the defendant.

Marginal note:Time for third party claim

195 A third party claim against a co-defendant shall be served and filed within 10 days after the filing of the statement of defence.

Marginal note:Third party claim against non-defendant

• 196 (1) A third party claim against a person who is not already a party to the action shall be

  • (a) issued within the time set out in rule 204 for the service and filing of a statement of defence; and

  • (b) served within 30 days after it is issued.

• Marginal note:Copy of pleadings

  (2) A third party claim served on a person who is not already a party to the action shall be accompanied by a copy of all pleadings filed in the action.

Marginal note:Time for defence to third party claim

• 197 (1) A third party shall defend the plaintiff’s claim against the defendant by filing a statement of defence within the time set out in rule 204.

• Marginal note:Rights and obligations of third party

  (2) A third party defending the plaintiff’s claim against the defendant has the same procedural rights and obligations in the action as the defendant, including those in respect of discovery, trial and appeal.

Marginal note:Hearing of third party claim

• 198 (1) Unless the Court orders otherwise, a third party claim shall be heard and decided as part of the action from which it arose.

• Marginal note:Questions of third party liability

  (2) The Court may order the question of liability as between the third party and the defendant to be tried in such a manner, at or after the trial of the action, as is set out in the order.

Marginal note:Order binding on third party

• 199 (1) A third party is bound by any order or determination made in an action between the plaintiff and the defendant who made the third party claim, whether or not the third party defended the plaintiff’s claim.

• Marginal note:Consequences of default of third party defence

  (2) A third party who defends neither the third party claim nor the plaintiff’s claim is deemed to admit

  • (a) the validity of any judgment obtained by the plaintiff against the defendant, including a judgment obtained by consent; and

  • (b) the third party’s liability to contribute or indemnify to the extent specified in the third party claim.

• Marginal note:Leave required to enforce default judgment

  (3) A judgment against a third party referred to in subsection (2) shall not be enforced without leave of the Court.

Amendment of Pleadings

Marginal note:Amendment as of right

200 Notwithstanding rules 75 and 76, a party may, without leave, amend any of its pleadings at any time before another party has pleaded thereto or on the filing of the written consent of the other parties.

Marginal note:Amendment to add new cause of action

201 An amendment may be made under rule 76 notwithstanding that the effect of the amendment will be to add or substitute a new cause of action, if the new cause of action arises out of substantially the same facts as a cause of action in respect of which the party seeking the amendment has already claimed relief in the action.

Close of Pleadings

Marginal note:Close of pleadings

202 Pleadings are closed

• (a) where a statement of defence has not been filed within the period set out in rule 204, on the expiration of that period;

• (b) on the filing of a reply; or

• (c) on the expiration of the time for filing a reply.

Time for Service of Pleadings

Marginal note:Statement of claim

• 203 (1) A statement of claim shall be served within 60 days after it is issued.

• Marginal note:Proof of service

  (2) Proof of service of a statement of claim shall be filed within the time set out in rule 204 for the service and filing of a statement of defence.

Marginal note:Defence

204 A defendant shall defend an action by serving and filing a statement of defence within

• (a) 30 days after service of the statement of claim, if the defendant is served in Canada;

• (b) 40 days after service of the statement of claim, if the defendant is served in the United States; and

• (c) 60 days after service of the statement of claim, if the defendant is served outside Canada and the United States.

Marginal note:Reply

205 A plaintiff’s reply to a statement of defence shall be served and filed within 10 days after service of the statement of defence.

Marginal note:Documents referred to in pleadings

206 A copy of every document referred to in a pleading shall be served with the pleading or within 10 days after service of the pleading, unless

• (a) the party being served waives its right to the copy; or

• (b) the Court orders otherwise.

Marginal note:Service of counterclaim where no new party added

• 207 (1) Where a counterclaim is brought against a plaintiff only, or against only a plaintiff and another party to the action, the statement of defence and counterclaim shall be served and filed within the time set out in rule 204.

• Marginal note:Exception

  (2) Where a defendant to a counterclaim who is also a defendant in the action has failed to file a statement of defence in the action, that defendant shall be served personally with a statement of defence and counterclaim.

PRELIMINARY OBJECTIONS

Marginal note:Motion to object

208 A party who has been served with a statement of claim and who brings a motion to object to

• (a) any irregularity in the commencement of the action,

• (b) the service of the statement of claim,

• (c) the Court as not being a convenient forum, or

• (d) the jurisdiction of the Court,

does not thereby attorn to the jurisdiction of the Court.

Marginal note:Solicitor of record

209 A solicitor appearing for a party bringing a motion referred to in rule 208 shall be considered to be the solicitor of record of the party and the address indicated for the solicitor on the notice of motion or other documents is the address for service of the party.

DEFAULT PROCEEDINGS

Marginal note:Motion for default judgment

• 210 (1) Where a defendant fails to serve and file a statement of defence within the time set out in rule 204 or any other time fixed by an order of the Court, the plaintiff may bring a motion for judgment against the defendant on the statement of claim.

• Marginal note:Motion in writing

  (2) Subject to section 25 of the Crown Liability and Proceedings Act, a motion under subsection (1) may be brought ex parte and in accordance with rule 369.

• Marginal note:Affidavit evidence

  (3) A motion under subsection (1) shall be supported by affidavit evidence.

• Marginal note:Disposition of motion

  (4) On a motion under subsection (1), the Court may

  • (a) grant judgment;

  • (b) dismiss the action; or

  • (c) order that the action proceed to trial and that the plaintiff prove its case in such a manner as the Court may direct.

Marginal note:Service pursuant to order for substitutional service

211 Judgment shall not be given against a defendant who is in default where service of the statement of claim was effected pursuant to an order for substitutional service, unless the Court is satisfied that it is just to do so having regard to all the circumstances.

Marginal note:Service pursuant to Hague Convention

• 212 (1) Where a statement of claim was sent abroad for service on a defendant in a contracting state to the Hague Convention and the defendant has not filed a defence, judgment shall not be given under rule 210 unless the Court is satisfied that

  • (a) the statement of claim was

    • (i) served by a method prescribed by the law of the state in which service was made, or

    • (ii) delivered to the defendant or to the defendant’s residence by another method provided for in the Hague Convention; and

  • (b) the defendant has had sufficient time after the service or delivery to file a defence.

• Marginal note:Judgment

  (2) Notwithstanding subsection (1), the Court may give judgment under rule 210 if

  • (a) the statement of claim was sent by a method provided for in the Hague Convention;

  • (b) a period of not less than six months, or such longer period as the Court considers adequate in the circumstances, has elapsed since the day on which the statement of claim was sent; and

  • (c) no certificate under article 6 of the Hague Convention was received, and every reasonable effort was made to obtain such a certificate through the competent authorities of the state to which the statement of claim was sent.

• Marginal note:Interlocutory injunction or mandamus

  (3) This rule does not preclude the Court from making an order under rule 373 before service of the statement of claim.

SUMMARY JUDGMENT

Marginal note:Where available to plaintiff

• 213 (1) A plaintiff may, after the defendant has filed a defence, or earlier with leave of the Court, and at any time before the time and place for trial are fixed, bring a motion for summary judgment on all or part of the claim set out in the statement of claim.

• Marginal note:Where available to defendant

  (2) A defendant may, after serving and filing a defence and at any time before the time and place for trial are fixed, bring a motion for summary judgment dismissing all or part of the claim set out in the statement of claim.

Marginal note:Obligations of moving party

• 214 (1) A party may bring a motion for summary judgment in an action by serving and filing a notice of motion and motion record at least 20 days before the day set out in the notice for the hearing of the motion.

• Marginal note:Obligations of responding party

  (2) A party served with a motion for summary judgment shall serve and file a respondent's motion record not later than 10 days before the day set out in the notice of motion for the hearing of the motion.

Marginal note:Mere denial

215 A response to a motion for summary judgment shall not rest merely on allegations or denials of the pleadings of the moving party, but must set out specific facts showing that there is a genuine issue for trial.

Marginal note:Where no genuine issue for trial

• 216 (1) Where on a motion for summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant summary judgment accordingly.

• Marginal note:Genuine issue of amount or question of law

  (2) Where on a motion for summary judgment the Court is satisfied that the only genuine issue is

  • (a) the amount to which the moving party is entitled, the Court may order a trial of that issue or grant summary judgment with a reference under rule 153 to determine the amount; or

  • (b) a question of law, the Court may determine the question and grant summary judgment accordingly.

• Marginal note:Summary judgment

  (3) Where on a motion for summary judgment the Court decides that there is a genuine issue with respect to a claim or defence, the Court may nevertheless grant summary judgment in favour of any party, either on an issue or generally, if the Court is able on the whole of the evidence to find the facts necessary to decide the questions of fact and law.

• Marginal note:Where motion dismissed

  (4) Where a motion for summary judgment is dismissed in whole or in part, the Court may order the action, or the issues in the action not disposed of by summary judgment, to proceed to trial in the usual way or order that the action be conducted as a specially managed proceeding.

Marginal note:Effect of summary judgment

217 A plaintiff who obtains summary judgment under these Rules may proceed against the same defendant for any other relief and against any other defendant for the same or any other relief.

Marginal note:Powers of Court

218 Where summary judgment is refused or is granted only in part, the Court may make an order specifying which material facts are not in dispute and defining the issues to be tried, including an order

• (a) for payment into court of all or part of the claim;

• (b) for security for costs; or

• (c) limiting the nature and scope of the examination for discovery to matters not covered by the affidavits filed on the motion for summary judgment or by any cross-examination on them and providing for their use at trial in the same manner as an examination for discovery.

Marginal note:Stay of execution

219 In making an order for summary judgment, the Court may order that enforcement of the summary judgment be stayed pending the determination of any other issue in the action or in a counterclaim or third party claim.

QUESTIONS OF LAW

Marginal note:Preliminary determination of question of law or admissibility

• 220 (1) A party may bring a motion before trial to request that the Court determine

  • (a) a question of law that may be relevant to an action;

  • (b) a question as to the admissibility of any document, exhibit or other evidence; or

  • (c) questions stated by the parties in the form of a special case before, or in lieu of, the trial of the action.

• Marginal note:Contents of determination

  (2) Where, on a motion under subsection (1), the Court orders that a question be determined, it shall

  • (a) give directions as to the case on which the question shall be argued;

  • (b) fix time limits for the filing and service of motion records by the parties; and

  • (c) fix a time and place for argument of the question.

• Marginal note:Determination final

  (3) A determination of a question referred to in subsection (1) is final and conclusive for the purposes of the action, subject to being varied on appeal.

STRIKING OUT PLEADINGS

Marginal note:Motion to strike

• 221 (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it

  • (a) discloses no reasonable cause of action or defence, as the case may be,

  • (b) is immaterial or redundant,

  • (c) is scandalous, frivolous or vexatious,

  • (d) may prejudice or delay the fair trial of the action,

  • (e) constitutes a departure from a previous pleading, or

  • (f) is otherwise an abuse of the process of the Court,

  and may order the action be dismissed or judgment entered accordingly.

• Marginal note:Evidence

  (2) No evidence shall be heard on a motion for an order under paragraph (1)(a).

DISCOVERY AND INSPECTION

Discovery of Documents

Definition of document

• 222 (1) In rules 223 to 232 and 295, document includes an audio recording, video recording, film, photograph, chart, graph, map, plan, survey, book of account, computer diskette and any other device on which information is recorded or stored.

• Marginal note:Interpretation

  (2) For the purposes of rules 223 to 232 and 295, a document of a party is relevant if the party intends to rely on it or if the document tends to adversely affect the party's case or to support another party's case.

Marginal note:Time for service of affidavit of documents

• 223 (1) Every party shall serve an affidavit of documents on every other party within 30 days after the close of pleadings.

• Marginal note:Contents

  (2) An affidavit of documents shall be in Form 223 and shall contain

  • (a) separate lists and descriptions of all relevant documents that

    • (i) are in the possession, power or control of the party and for which no privilege is claimed,

    • (ii) are or were in the possession, power or control of the party and for which privilege is claimed,

    • (iii) were but are no longer in the possession, power or control of the party and for which no privilege is claimed, and

    • (iv) the party believes are in the possession, power or control of a person who is not a party to the action;

  • (b) a statement of the grounds for each claim of privilege in respect of a document;

  • (c) a description of how the party lost possession, power or control of any document and its current location, as far as the party can determine;

  • (d) the identity of each person referred to in subparagraph (a)(iv), including the person’s name and address, if known;

  • (e) a statement that the party is not aware of any relevant document, other than those that are listed in the affidavit or are or were in the possession, power or control of another party to the action; and

  • (f) an indication of the time and place at which the documents referred to in subparagraph (a)(i) may be inspected.

• Marginal note:Document within party’s power or control

  (3) For the purposes of subsection (2), a document shall be considered to be within a party’s power or control if

  • (a) the party is entitled to obtain the original document or a copy of it; and

  • (b) no adverse party is so entitled.

• Marginal note:Bundle of documents

  (4) A party may treat a bundle of documents as a single document for the purposes of an affidavit of documents if

  • (a) the documents are all of the same nature; and

  • (b) the bundle is described in sufficient detail to enable another party to clearly ascertain its contents.

Marginal note:Deponent of affidavit of documents

• 224 (1) The deponent of an affidavit of documents shall be

  • (a) where the party is an individual who is not under a legal disability, the party;

  • (b) where the party is an individual under a legal disability, a person appointed under rule 115;

  • (c) where the party is a corporation or an unincorporated association, an authorized representative of the corporation or association; or

  • (d) where the party is the Crown, an authorized representative of the Crown.

• Marginal note:Obligations of deponent

  (2) The deponent of an affidavit of documents shall, before making the affidavit, become informed by making reasonable inquiries of any present or former officer, servant, agent or employee of the party, including any who are outside Canada, who might reasonably be expected to have knowledge relating to any matter in question in the action.

• Marginal note:Obligations of solicitor

  (3) The solicitor of record for a party shall

  • (a) explain to the deponent of an affidavit of documents the necessity of making full disclosure under rule 223 and the possible consequences of failing to do so; and

  • (b) certify on the affidavit of documents or on a document attached to it that those explanations have been given.

Marginal note:Order for disclosure

225 On motion, the Court may order a party to disclose in an affidavit of documents all relevant documents that are in the possession, power or control of

• (a) where the party is an individual, any corporation that is controlled directly or indirectly by the party; or

• (b) where the party is a corporation,

  • (i) any corporation that is controlled directly or indirectly by the party,

  • (ii) any corporation or individual that directly or indirectly controls the party, or

  • (iii) any corporation that is controlled directly or indirectly by a person who also directly or indirectly controls the party.

Marginal note:Need for continuing disclosure

• 226 (1) A party who becomes aware that its affidavit of documents is inaccurate or deficient shall, without delay, serve a supplementary affidavit of documents correcting the inaccuracy or deficiency.

• Marginal note:Exception

  (2) A document produced and marked as an exhibit on an examination need not be included in a supplementary affidavit of documents.

Marginal note:Sanctions

227 On motion, where the Court is satisfied that an affidavit of documents is inaccurate or deficient, the Court may inspect any document that may be relevant and may order that

• (a) the deponent of the affidavit be cross-examined;

• (b) an accurate or complete affidavit be served and filed;

• (c) all or part of the pleadings of the party on behalf of whom the affidavit was made be struck out; or

• (d) that the party on behalf of whom the affidavit was made pay costs.

Marginal note:Inspection of documents

• 228 (1) Subject to rule 230, a party who has served an affidavit of documents on another party shall, during business hours, allow the other party to inspect and, where practicable, to copy any document referred to in the affidavit that is not privileged, if the document is

  • (a) in the possession of the party; or

  • (b) in the power or control of the party and the other party requests that it be made available because the other party cannot otherwise inspect or copy it.

• Marginal note:Copies of documents

  (2) A party who has served an affidavit of documents on another party shall, at the request of the other party, deliver to the other party a copy of any document referred to in subsection (1), if the other party pays the cost of the copies and of their delivery.

Marginal note:Order for production and inspection

229 On motion, the Court may order the production for inspection and copying by a party of any document referred to in subsection 228(1), at a time and place and in a manner set out in the order.

Marginal note:Relief from production

230 On motion, the Court may relieve a party from production for inspection of any document, having regard to

• (a) the issues in the case and the order in which they are likely to be resolved; and

• (b) whether it would be unduly onerous to require the person to produce the document.

Marginal note:Disclosure or production not admission

231 The disclosure of a document or its production for inspection does not constitute an admission of its authenticity or admissibility in the action.

Marginal note:Undisclosed or privileged document

• 232 (1) Unless the Court orders otherwise or discovery of documents has been waived by the parties, no document shall be used in evidence unless it has been

  • (a) disclosed on a party's affidavit of documents as a document for which no privilege has been claimed;

  • (b) produced for inspection by a party, or a person examined on behalf of one of the parties, on or subsequent to examinations for discovery; or

  • (c) produced by a witness who is not, in the opinion of the Court, under control of the party.

• Marginal note:Exception

  (2) Subsection (1) does not apply to a document that is used solely as a foundation for, or as a part of a question in, cross-examination or re-examination.

Marginal note:Production from non-party with leave

• 233 (1) On motion, the Court may order the production of any document that is in the possession of a person who is not a party to the action, if the document is relevant and its production could be compelled at trial.

• Marginal note:Personal service on non-party

  (2) Notice of a motion for an order under subsection (1) shall be personally served on the person who is in possession of the document.

• Marginal note:Preparation of certified copy

  (3) The Court may, in an order under subsection (1), give directions for the preparation of a certified copy of the document to be used instead of the original.

Examinations for Discovery

Marginal note:Both oral and written examination

• 234 (1) A party may conduct an examination for discovery by way of both an oral and a written examination only with leave of the Court or with the consent of the person being examined and all other parties entitled to examine that person.

• Marginal note:Oral examination by two or more parties

  (2) Where two or more parties are entitled to examine a person, the examination for discovery shall be by way of an oral examination, except with leave of the Court or with the consent of the person being examined and all other parties entitled to examine that person.

Marginal note:Single examination

235 Except with leave of the Court, a party may examine for discovery any adverse party only once.

Marginal note:When examination may be initiated

• 236 (1) Subject to subsection (2), a party may examine an adverse party for discovery only if

  • (a) the pleadings are closed and the examining party has served its affidavit of documents;

  • (b) the pleadings are closed and the adverse party consents to the examination being conducted before the examining party has served its affidavit of documents; or

  • (c) the adverse party is in default of serving and filing its pleadings and leave of the Court has been obtained.

• Marginal note:Examination by defendant

  (2) Subject to subsection (3), a defendant may examine a plaintiff at any time after the statement of claim is filed.

• Marginal note:Multiple defendants

  (3) Where two or more defendants are represented by the same solicitor, none of them may examine the plaintiff before filing a defence unless all of them examine the plaintiff at the same time.

Marginal note:Representative selected

• 237 (1) A corporation, partnership or unincorporated association that is to be examined for discovery shall select a representative to be examined on its behalf.

• Marginal note:Examination of Crown

  (2) Where the Crown is to be examined for discovery, the Attorney General of Canada shall select a representative to be examined on its behalf.

• Marginal note:Order for substitution

  (3) The Court may, on the motion of a party entitled to examine a person selected under subsection (1) or (2), order that some other person be examined.

• Marginal note:Examination of assignee

  (4) Where an assignee is a party to an action, the assignor may also be examined for discovery.

• Marginal note:Examination of trustee in bankruptcy

  (5) Where a trustee in bankruptcy is a party to an action, the bankrupt may also be examined for discovery.

• Marginal note:Examination of party under legal disability

  (6) Where a party intends to examine for discovery a person appointed under rule 121 to act on behalf of a person under legal disability, with leave of the Court, the party may also examine the person under disability.

• Marginal note:Examination of nominal party

  (7) Where a party intends to examine for discovery a person bringing or defending an action on behalf of another person who is not a party, with leave of the Court, the party may also examine that other person.

Marginal note:Examination of non-parties with leave

• 238 (1) A party to an action may bring a motion for leave to examine for discovery any person not a party to the action, other than an expert witness for a party, who might have information on an issue in the action.

• Marginal note:Personal service on non-party

  (2) On a motion under subsection (1), the notice of motion shall be served on the other parties and personally served on the person to be examined.

• Marginal note:Where Court may grant leave

  (3) The Court may, on a motion under subsection (1), grant leave to examine a person and determine the time and manner of conducting the examination, if it is satisfied that

  • (a) the person may have information on an issue in the action;

  • (b) the party has been unable to obtain the information informally from the person or from another source by any other reasonable means;

  • (c) it would be unfair not to allow the party an opportunity to question the person before trial; and

  • (d) the questioning will not cause undue delay, inconvenience or expense to the person or to the other parties.

Marginal note:Expenses of person examined

• 239 (1) Unless the Court orders otherwise, a party who is granted leave to examine a person under rule 238 shall pay to the person

  • (a) at least 10 days before the day of the examination, an amount sufficient to cover reasonable travel expenses; and

  • (b) within 10 days after the examination, an amount sufficient to cover any reasonable travel expenses in excess of the initial payment.

• Marginal note:Assistance of solicitor

  (2) A person being examined under rule 238 is entitled to be assisted by a solicitor.

• Marginal note:Costs of solicitor

  (3) On motion, the Court may, in special circumstances, order that the costs of a solicitor assisting a person to be examined under rule 238 be included in the amounts paid under subsection (1).

• Marginal note:Questioning by other parties

  (4) A person being examined under rule 238 may also be questioned by any other party.

• Marginal note:Cross-examination or hearsay

  (5) A person being examined under rule 238 shall not be cross-examined and shall not be required to give hearsay evidence.

• Marginal note:Use as evidence at trial

  (6) The testimony of a person who was examined under rule 238 shall not be used as evidence at trial but, if the person is a witness at trial, it may be used in cross-examination in the same manner as any written statement of a witness.

Marginal note:Scope of examination

240 A person being examined for discovery shall answer, to the best of the person’s knowledge, information and belief, any question that

• (a) is relevant to any unadmitted allegation of fact in a pleading filed by the party being examined or by the examining party; or

• (b) concerns the name or address of any person, other than an expert witness, who might reasonably be expected to have knowledge relating to a matter in question in the action.

Marginal note:Obligation to inform self

241 Subject to paragraph 242(1)(d), a person who is to be examined for discovery, other than a person examined under rule 238, shall, before the examination, become informed by making inquiries of any present or former officer, servant, agent or employee of the party, including any who are outside Canada, who might be expected to have knowledge relating to any matter in question in the action.

Marginal note:Objections permitted

• 242 (1) A person may object to a question asked in an examination for discovery on the ground that

  • (a) the answer is privileged;

  • (b) the question is not relevant to any unadmitted allegation of fact in a pleading filed by the party being examined or by the examining party;

  • (c) the question is unreasonable or unnecessary; or

  • (d) it would be unduly onerous to require the person to make the inquiries referred to in rule 241.

• Marginal note:Objections not permitted

  (2) A person other than a person examined under rule 238 may not object to a question asked in an examination for discovery on the ground that

  • (a) the answer would be evidence or hearsay;

  • (b) the question constitutes cross-examination.

Marginal note:Limit on examination

243 On motion, the Court may limit an examination for discovery that it considers to be oppressive, vexatious or unnecessary.

Marginal note:Examined party to be better informed

• 244 (1) Where a person being examined for discovery, other than a person examined under rule 238, is unable to answer a question, the examining party may require the person to become better informed and may conclude the examination, subject to obtaining answers to any remaining questions.

• Marginal note:Further answers

  (2) A person being examined who is required to become better informed shall provide the information sought by the examining party by submitting to a continuation of the oral examination for discovery in respect of the information or, where the parties agree, by providing the information in writing.

• Marginal note:Information deemed part of examination

  (3) Information provided under subsection (2) is deemed to be part of the examination for discovery.

Marginal note:Inaccurate or deficient answer

• 245 (1) A person who was examined for discovery and who discovers that the answer to a question in the examination is no longer correct or complete shall, without delay, provide the examining party with the corrected or completed information in writing.

• Marginal note:Further examination

  (2) An examining party may require a person providing information under subsection (1) to continue the examination for discovery in respect of that information.

• Marginal note:Corrections deemed part of examination

  (3) Information provided under subsection (1) is deemed to be part of the examination for discovery.

Marginal note:Answer by solicitor

• 246 (1) The solicitor of a person being examined for discovery orally may answer a question on behalf of the person during the examination, unless the examining party objects.

• Marginal note:Deemed answer of person examined

  (2) An answer given by a solicitor under subsection (1) is deemed to be the answer of the person being examined for discovery.

Marginal note:Divided discovery

247 Where

• (a) an order was made under rule 153 that an issue of fact be the subject of a reference after trial, or

• (b) an order was made under rule 107 that an issue in the action be determined separately,

any subsequent examination for discovery or inspection of documents shall not extend to that issue, unless otherwise ordered by the Court.

Marginal note:Undisclosed information inadmissible at trial

248 Where a party examined for discovery, or a person examined for discovery on behalf of a party, has refused, on the ground of privilege or for any other reason, to answer a proper question and has not subsequently answered the question, the party may not introduce the information sought by the question at trial without leave of the Court.

Inspection of Property

Marginal note:Order for inspection

• 249 (1) On motion, where the Court is satisfied that it is necessary or expedient for the purpose of obtaining information or evidence in full, the Court may order, in respect of any property that is the subject-matter of an action or as to which a question may arise therein, that

  • (a) a sample be taken of the property;

  • (b) an inspection be made of the property; or

  • (c) an experiment be tried on or with the property.

• Marginal note:Entry on land or building

  (2) An order made under subsection (1) may authorize a person to enter any land or building where the property is located for the purpose of enabling the order to be carried out.

• Marginal note:Personal service on non-party

  (3) Where a motion is brought under subsection (1) for an order in respect of property that is in the possession of a person who is not a party to the action, that person shall be personally served with notice of the motion.

Medical Examination of Parties

Marginal note:Order for medical examination

• 250 (1) In an action for damages for personal injuries, the Court may, on motion, order the injured person to submit to a medical examination at a place and by a medical practitioner appointed by the Court.

• Marginal note:Who may attend examination

  (2) A person who is required to undergo a medical examination under this rule is entitled to have a solicitor, medical advisor or person appointed under rule 115, or all of them, present at the examination, but no other person, other than the person being examined and the medical practitioner authorized to conduct the examination, shall be present during the examination, except with leave of the Court or with the consent of the parties.

• Marginal note:Scope of examination

  (3) A medical practitioner who is examining a person under this rule may, in connection with that examination, ask the person any question that may be relevant to the purpose of the examination, and any statement made by the person during such an examination is admissible in evidence.

• Marginal note:Sanctions for plaintiff’s failure to comply

  (4) If a plaintiff fails, without reasonable excuse, to comply with an order under subsection (1) or to answer any questions referred to in subsection (3), the Court may dismiss the action.

Marginal note:Further medical examination

251 On motion, the Court may order further medical examinations in accordance with rule 250, on such terms as it considers just.

Marginal note:Medical report

• 252 (1) After conducting a medical examination under rule 250, the medical practitioner shall prepare a written report setting out his or her observations, the results of any tests made and his or her conclusions, diagnosis and prognosis and forthwith provide the report to the party who obtained the order.

• Marginal note:Service of medical report

  (2) A party who obtains an order under rule 250 shall forthwith serve the report obtained pursuant to it on every other party.

• Marginal note:Report confidential

  (3) Every person who receives a medical report under this rule shall treat it as confidential and use it only for the purposes of the action.

Marginal note:Medical practitioner as witness

253 Unless the Court orders otherwise, a medical practitioner who has made an examination under an order made under subsection 250(1) may, subject to rule 279, be called as a witness at trial.

Marginal note:Costs of medical examination

254 The Court may order that a party seeking an order under subsection 250(1) or rule 251 pay to the person to be examined or to a representative of the person appointed under rule 115 all necessary expenses of attending the examination.

ADMISSIONS

Marginal note:Request to admit fact or document

255 A party may, after pleadings have been closed, request that another party admit a fact or the authenticity of a document by serving a request to admit, in Form 255, on that party.

Marginal note:Effect of request to admit

256 A party who is served with a request to admit is deemed to admit a fact or the authenticity of a document set out in the request to admit unless that party serves a response to the request in Form 256 within 20 days after its service and denies the admission, setting out the grounds for the denial.

PRE-TRIAL

Settlement Discussions

Marginal note:Settlement discussions

257 Within 60 days after the close of pleadings, the solicitors for the parties shall discuss the possibility of settling any or all of the issues in the action and of bringing a motion to refer any unsettled issues to a dispute resolution conference.

Pre-trial Conferences

Marginal note:Requisition for pre-trial conference

• 258 (1) After the close of pleadings, a party who is not in default under these Rules or under an order of the Court and who is ready for trial may serve and file a requisition for a pre-trial conference, accompanied by a pre-trial conference memorandum.

• Marginal note:Contents of requisition

  (2) A requisition for a pre-trial conference shall be in Form 258 and include a certification by the solicitor of record that

  • (a) all examinations for discovery that the party intends to conduct have been completed; and

  • (b) settlement discussions have taken place in accordance with rule 257.

• Marginal note:Contents of pre-trial conference memorandum

  (3) A pre-trial conference memorandum shall contain

  • (a) a concise statement of the nature of the proceeding;

  • (b) any admissions of the party;

  • (c) the factual and legal contentions of the party; and

  • (d) a statement of the issues to be determined at trial.

• Marginal note:Documents

  (4) A pre-trial conference memorandum shall be accompanied by a copy of all documents that are intended to be used at trial that may be of assistance in settling the action.

Marginal note:Time and place for pre-trial conference

259 On the filing of a requisition for a pre-trial conference, the Court shall fix a time, not more than 60 days thereafter, and place for the pre-trial conference.

Marginal note:Participation at pre-trial conference

260 Unless the Court directs otherwise, the solicitors of record for the parties and the parties or their authorized representatives shall participate in a pre-trial conference.

Marginal note:Notice of pre-trial conference

261 The Administrator shall serve a notice of pre-trial conference, in Form 261, on the parties at least 30 days before the date fixed for the conference.

Marginal note:Pre-trial conference memoranda

262 Every party, other than the party who filed the requisition for a pre-trial conference, shall serve and file a pre-trial conference memorandum at least seven days before the date fixed for the conference.

Marginal note:Scope of pre-trial conference

263 Participants at a pre-trial conference must be prepared to address

• (a) the possibility of settlement of any or all of the issues in the action and of referring any unsettled issues to a dispute resolution conference;

• (b) simplification of the issues in the action;

• (c) definition of any issues requiring the evidence of expert witnesses;

• (d) the possibility of obtaining admissions that may facilitate the trial;

• (e) the issue of liability;

• (f) the amount of damages, where damages are claimed;

• (g) the estimated duration of the trial;

• (h) the advisability of having the Court appoint an assessor;

• (i) the advisability of a reference;

• (j) suitable dates for a trial;

• (k) the necessity for interpreters or simultaneous interpretation at the trial;

• (l) whether a notice of a constitutional question needs to be served under section 57 of the Act;

• (m) the content of the trial record; and

• (n) any other matter that may promote the timely and just disposition of the action.

Marginal note:Assignment of trial date

264 A judge or prothonotary who conducts a pre-trial conference shall fix the place of trial and assign a date for trial at the earliest practicable date after the pre-trial conference.

Marginal note:Order

265 At a pre-trial conference,

• (a) a judge may make any order respecting the conduct of the action; and

• (b) a prothonotary may make any order respecting the conduct of the action other than an order under a motion referred to in any of paragraphs 50(1)(a) to (i).

Marginal note:Pre-trial judge not to preside at trial

266 A judge or prothonotary who conducts a pre-trial conference in an action shall not preside at the trial of the action unless all parties consent.

Marginal note:No disclosure to the Court

267 No communication shall be made to a judge or prothonotary presiding at a trial or hearing, or on a motion or reference in an action, with respect to any statement made at a pre-trial conference, except as may be permitted in an order made at the conclusion of the pre-trial conference or as consented to by the parties.

Trial Record

Marginal note:Trial record

268 The plaintiff, or any other party so directed by the Court at a pre-trial conference, shall serve and file a trial record not later than 40 days before the date fixed for trial.

Marginal note:Content of trial record

269 A trial record shall contain the pleadings, any particulars, all orders and directions respecting the trial and any other filed document that is necessary for the conduct of the trial.

Trial Management Conference

Marginal note:Scope of trial management conference

270 Notwithstanding rule 266, a judge or prothonotary before whom an action has been set down for trial may, without being disqualified from presiding at the trial, hold a conference, either before or during the trial, to consider any matter that may assist in the just and timely disposition of the action.

Taking of Trial Evidence out of Court

Marginal note:Evidence taken out of court

• 271 (1) On motion, the Court may order the examination for trial of a person out of court.

• Marginal note:Considerations

  (2) In making an order under subsection (1), the Court may consider

  • (a) the expected absence of the person at the time of trial;

  • (b) the age or any infirmity of the person;

  • (c) the distance the person resides from the place of trial; and

  • (d) the expense of having the person attend at trial.

• Marginal note:Directions regarding taking evidence before trial

  (3) In an order under subsection (1), or on the subsequent motion of a party, the Court may give directions regarding the time, place, manner and costs of the examination, notice to be given to the person being examined and to other parties, the attendance of witnesses and the production of requested documents or material.

• Marginal note:Further examination

  (4) On motion, the Court may order the further examination, before the Court or before a person designated by the Court, of any witness examined under subsection (1), and if such an examination is not conducted, the Court may refuse to admit the evidence of that witness.

Marginal note:Commission for examination outside Canada

• 272 (1) Where an examination under rule 271 is to be made outside Canada, the Court may order the issuance of a commission under the seal of the Court, letters rogatory, a letter of request or any other document necessary for the examination in Form 272A, 272B or 272C, as the case may be.

• Marginal note:Examination outside Canada

  (2) A person authorized under subsection (1) to take the examination of a witness in a jurisdiction outside Canada shall, unless the parties agree otherwise or the Court orders otherwise, take the examination in a manner that is binding on the witness under the law of that jurisdiction.

Marginal note:Use of evidence at trial

273 Unless the Court orders otherwise, evidence obtained on an examination under subsection 271(1) or (4) may, without further proof, be used in evidence by any party.

TRIAL PROCEDURE

General

Marginal note:Order of presentation

• 274 (1) Subject to subsection (2), at the trial of an action, unless the Court directs otherwise,

  • (a) the plaintiff shall make an opening address and then adduce evidence;

  • (b) when the plaintiff’s evidence is concluded, the defendant shall make an opening address and then adduce evidence; and

  • (c) when the defendant’s evidence is concluded, the plaintiff may adduce reply evidence.

• Marginal note:Multiple parties

  (2) Where the Court has made an order permitting two or more plaintiffs to put in separate cases, or where more than one defendant is separately represented, the order of presentation shall be as directed by the Court.

Marginal note:Directions re proof or evidence

275 The Court may give directions at trial concerning the method of proving a fact or of adducing evidence.

Marginal note:Exhibits

276 All exhibits adduced in evidence shall be marked and numbered.

Marginal note:Inspection by Court

277 The Court may, in the presence of solicitors for the parties, inspect any place or thing in respect of which a question may arise at trial.

Marginal note:Order of argument

• 278 (1) Unless the Court directs otherwise, the parties shall be heard in argument, after all parties have been given full opportunity to put in their respective cases, in the order in which they adduced evidence.

• Marginal note:Right of reply

  (2) A party shall have a right of reply to the arguments of adverse parties and, if the party raises a new point of law, an adverse party may answer on that point.

Expert Witnesses

Marginal note:Where expert may testify

279 Unless the Court orders otherwise, no evidence in chief of an expert witness is admissible at the trial of an action in respect of any issue unless

• (a) the issue has been defined by the pleadings or in an order made under rule 265;

• (b) an affidavit, or a statement in writing signed by the expert witness and accompanied by a solicitor's certificate, that sets out in full the proposed evidence, has been served on all other parties at least 60 days before the commencement of the trial; and

• (c) the expert witness is available at the trial for cross-examination.

Marginal note:Tendering of expert evidence at trial

• 280 (1) Evidence in chief of an expert witness may be tendered at trial by

  • (a) the reading into evidence by the witness of all or part of an affidavit or statement served under paragraph 279(b);

  • (b) testimony by the witness explaining any of the content of an affidavit or statement that has been read into evidence; and

  • (c) with leave of the Court, other testimony by the witness.

• Marginal note:Affidavit taken as read

  (2) With leave of the Court and the consent of all parties, all or part of an affidavit or statement served under paragraph 279(b) may be taken as read into evidence by the witness.

• Marginal note:Prohibition on pre-trial cross-examination

  (3) Except with leave of the Court, there shall be no cross-examination before trial on an affidavit or statement served under paragraph 279(b).

Marginal note:Admissibility of rebuttal evidence

281 Except with leave of the Court, no expert evidence to rebut evidence in an affidavit or statement served under paragraph 279(b) is admissible unless an affidavit, or a statement in writing signed by the expert witness and accompanied by a solicitor's certificate, setting out the rebuttal evidence has been served on all other parties at least 30 days before the commencement of the trial.

Evidence at Trial

Marginal note:Examination of witnesses

• 282 (1) Unless the Court orders otherwise, witnesses at trial shall be examined orally and in open court.

• Marginal note:Witnesses to testify under oath

  (2) All witnesses shall testify under oath.

Marginal note:Interpreter

283 Rule 93 applies, with such modifications as are necessary, to the use of an interpreter at trial.

Marginal note:Failure to appear

• 284 (1) Where on the day of a trial, a party who intends to call witnesses does not produce them or justify their absence, the Court may declare the party’s proof closed.

• Marginal note:Adjournment

  (2) Subject to subsection (3), where a party demonstrates due diligence and the Court is satisfied that an absent witness is necessary and that the absence of the witness is not due to any contrivance on the party’s part, the Court may adjourn the hearing.

• Marginal note:Avoidance of adjournment

  (3) An adverse party may require a party seeking an adjournment under subsection (2) to declare, or to produce some other person to declare, under oath the facts that, in the opinion of the party seeking the adjournment, the defaulting witness would have stated, and may avoid the adjournment by admitting the truth of those facts or that the witness would have stated those facts.

Marginal note:Proof by affidavit

285 The Court may, at any time, order that any fact be proven by affidavit or that the affidavit of a witness be read at trial.

Marginal note:Order re giving evidence

286 The Court may, before trial, order that evidence of any fact be given at the trial in such a manner as may be specified in the order, including

• (a) by statement on oath of information or belief;

• (b) by the production of documents or other material;

• (c) by the production of copies of documents; or

• (d) in the case of a fact that is or was a matter of common knowledge either generally or in a particular district, by the production of a specified publication containing a statement of that fact.

Demonstrative Evidence

Marginal note:Admissibility

287 Except with leave of the Court, no plan, photograph, model or other demonstrative evidence prepared or obtained for use at trial is admissible in evidence at trial, other than in the course of cross-examination, unless at least 30 days before the commencement of the trial all other parties have been given an opportunity to inspect it and consent to its admission without further proof.

Use of Examination for Discovery at Trial

Marginal note:Reading in examination at trial

288 A party may introduce as its own evidence at trial any part of its examination for discovery of an adverse party or of a person examined on behalf of an adverse party, whether or not the adverse party or person has already testified.

Marginal note:Qualifying answers

289 The Court may order a party who uses part of an examination for discovery as its own evidence to introduce into evidence any other part of the examination for discovery that the Court considers is so related that it ought not to be omitted.

Marginal note:Unavailability of deponent

290 The Court may permit a party to use all or part of an examination for discovery of a person, other than a person examined under rule 238, as evidence at trial if

• (a) the person is unable to testify at the trial because of his or her illness, infirmity or death or because the person cannot be compelled to attend; and

• (b) his or her evidence cannot be obtained on commission.

Marginal note:Use of examination to impeach credibility at trial

291 A party may use any part of its examination for discovery of a person as evidence to impeach the credibility of that person as a witness at trial only if the party first puts to the person the questions asked in that part of the examination.

SIMPLIFIED ACTION

Marginal note:Where mandatory

292 Unless the Court orders otherwise, rules 294 to 299 apply to any action in which

• (a) each claim is exclusively for monetary relief in an amount not exceeding $50,000, exclusive of interest and costs;

• (b) in respect of an action in rem claiming monetary relief, no amount claimed, exclusive of interest and costs, exceeds $50,000;

• (c) the parties agree that the action is to be conducted as a simplified action; or

• (d) on motion, the Court orders that the action be conducted as a simplified action.

Marginal note:Cost consequences of improper avoidance of procedure

293 The Court may award costs against any party, including a party who is successful in an action, who it finds has exaggerated a claim, including a counterclaim or third party claim, merely to avoid the operation of rules 292 and 294 to 299.

Marginal note:Style of cause

294 Every pleading in a simplified action shall be prefaced by the heading “Simplified Action”.

Marginal note:List of documents

295 A party to a simplified action may serve, in lieu of an affidavit of documents, a complete list of all the documents in the party’s possession, power or control that are relevant to a matter in issue in the action.

Marginal note:Limited examination for discovery

296 An examination for discovery in a simplified action shall be in writing only, and shall not exceed 50 questions.

Marginal note:Motions for summary judgment

297 No motion for summary judgment may be brought in a simplified action.

Marginal note:Motions prior to pre-trial conference

• 298 (1) Subject to subsections (2) and (3), a motion in a simplified action shall be returnable only at a pre-trial conference conducted in accordance with rules 258 to 267.

• Marginal note:Exception

  (2) A motion may be brought, within the time set out in rule 204 for the service and filing of a statement of defence,

  • (a) to object to the jurisdiction of the Court; or

  • (b) to strike a statement of claim, on the ground that it discloses no reasonable cause of action.

• Marginal note:Exception

  (3) A motion may be brought at any time

  • (a) to remove an action from the operation of rules 294 to 299;

  • (b) for the release of arrested property in an action in rem; or

  • (c) for a default judgment.

Marginal note:Evidence-in-chief adduced by affidavit

• 299 (1) In the trial of a simplified action, unless the Court directs otherwise, the evidence of each party shall be adduced by affidavit, which shall, subject to rules 279 and 281, be served and filed

  • (a) in the case of evidence of a plaintiff, at least 20 days before the trial; and

  • (b) in the case of evidence of a defendant, at least 10 days before the trial.

• Marginal note:Witness to be made available

  (2) Unless all adverse parties agree otherwise, a witness whose affidavit evidence is tendered at trial shall be made available for cross-examination at trial.

• Marginal note:Reply evidence

  (3) Subject to rule 281, reply evidence, including that of an expert witness, may be provided orally at trial.

CLASS ACTIONS

Application

Marginal note:Rules in respect of actions apply

299.1 Except to the extent that they are incompatible with rules 299.12 to 299.42, the rules applicable to actions apply to class actions.

Judicial Review

Marginal note:Application

299.11 Rules 299.1 and 299.12 to 299.42 also apply to an application for judicial review that is to be treated and proceeded with as an action under subsection 18.4(2) of the Act.

Commencement

Marginal note:By member

• 299.12 (1) A member of a class of persons may commence an action on behalf of the members of that class.

• Marginal note:Statement of claim

  (2) The statement of claim in an action commenced by a member of a class of persons on behalf of the members of that class shall be prefaced by the heading "Proposed Class Action".

• Marginal note:Motion for certification of action

  (3) A member who commences an action on behalf of a class of persons shall bring a motion for the certification of the action as a class action and the appointment of the member as representative plaintiff.

• Marginal note:Who may be representative

  (4) The representative of a class shall be a person who may act as a plaintiff under these Rules.

Certification during Proceeding

Marginal note:By defendant

299.13 A defendant to an action may, at any time, bring a motion for the certification of the action as a class action and the appointment of a representative plaintiff.

Marginal note:Counterclaims

299.14 If a defendant to a class action makes a counterclaim against the class, the counterclaim may not proceed unless the counterclaim is certified as a class action.

Marginal note:Defendant class action

299.15 A party to an action against two or more defendants may, at any time, bring a motion for the certification of the action as a class action and the appointment of a representative defendant.

Marginal note:Necessary modifications — rule 299.13 class action

• 299.16 (1) Rule 299.18 applies, with the necessary modifications, to the certification of an action as a class action referred to in rule 299.13.

• Marginal note:Necessary modifications — counterclaim and defendant class action

  (2) Rules 299.12 to 299.15 and 299.17 to 299.42 apply, with the necessary modifications, to a counterclaim referred to in rule 299.14 or other action referred to in rule 299.15.

Motion for Certification

Marginal note:Time of service and filing

• 299.17 (1) A notice of motion for the certification of an action as a class action and the affidavit in support of that motion shall be served and filed at least 14 days before the day set out in the notice for the hearing of the motion.

• Marginal note:When notice is returnable

  (2) The notice of motion shall be made returnable no later than 90 days after the later of

  • (a) the day on which the last statement of defence was filed, and

  • (b) the day on which, under rule 204, the last statement of defence is required to be served and filed.

• Marginal note:Affidavit in response

  (3) A person who serves and files an affidavit in response to a notice of motion and affidavit shall serve and file the affidavit in response at least five days before the day set out in the notice for the hearing of the motion.

• Marginal note:Content of affidavit

  (4) A person filing an affidavit under subsection (1) or (3) shall

  • (a) set out in the affidavit the material facts on which the person intends to rely at the hearing of the motion;

  • (b) swear that the person knows of no fact material to the motion that has not been disclosed in the person's affidavit; and

  • (c) provide, to the best of the person's knowledge, the number of members in the proposed class.

Certification

Marginal note:Conditions

• 299.18 (1) Subject to subsection (3), a judge shall certify an action as a class action if

  • (a) the pleadings disclose a reasonable cause of action;

  • (b) there is an identifiable class of two or more persons;

  • (c) the claims of the class members raise common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members;

  • (d) a class action is the preferable procedure for the fair and efficient resolution of the common questions of law or fact; and

  • (e) there is a representative plaintiff who

    • (i) would fairly and adequately represent the interests of the class,

    • (ii) has prepared a plan for the action that sets out a workable method of advancing the action on behalf of the class and of notifying class members how the proceeding is progressing,

    • (iii) does not have, on the common questions of law or fact, an interest that is in conflict with the interests of other class members, and

    • (iv) provides a summary of any agreements respecting fees and disbursements between the representative plaintiff and the representative plaintiff's solicitor.

• Marginal note:Matters to be considered

  (2) All relevant matters shall be considered in a determination of whether a class action is the preferable procedure for the fair and efficient resolution of the common questions of law or fact, including whether

  • (a) questions of law or fact common to the members of the class predominate over any questions affecting only individual members;

  • (b) a significant number of the members of the class have a valid interest in individually controlling the prosecution of separate actions;

  • (c) the class action would involve claims that are or have been the subject of any other action;

  • (d) other means of resolving the claims are less practical or less efficient; and

  • (e) the administration of the class action would create greater difficulties than those likely to be experienced if relief were sought by other means.

• Marginal note:Subclasses

  (3) If the judge determines that a class includes a subclass whose members have claims that raise common questions of law or fact not shared by all the class members so that the protection of the interests of the subclass members requires that they be separately represented, the judge shall not certify the action as a class action unless there is a representative plaintiff who

  • (a) would fairly and adequately represent the interests of the subclass;

  • (b) has prepared a plan for the action that sets out a workable method of advancing the action on behalf of the subclass and of notifying subclass members how the proceeding is progressing;

  • (c) does not have, on the common questions of law or fact for the subclass, an interest that is in conflict with the interests of other subclass members; and

  • (d) provides a summary of any agreements respecting fees and disbursements between the representative plaintiff and the representative plaintiff's solicitor.

Marginal note:Contents of order

• 299.19 (1) An order certifying an action as a class action shall

  • (a) describe the class;

  • (b) state the name of the representative plaintiff;

  • (c) state the nature of the claims made on behalf of the class;

  • (d) state the relief claimed by or from the class;

  • (e) set out the common questions of law or fact for the class; and

  • (f) specify the time and manner for members to opt out of the class action.

• Marginal note:Subclasses

  (2) If the judge determines that a class includes a subclass whose members have claims that raise common questions of law or fact not shared by all class members so that the protection of the interests of the subclass members requires that they be separately represented, the order certifying the action as a class action shall include the information referred to in subsection (1) in respect of the subclass.

Marginal note:Grounds that may not be relied on

299.2 A judge shall not refuse to certify an action as a class action solely on one or more of the following grounds:

• (a) the relief claimed includes a claim for damages that would require an individual assessment after a determination of the common questions of law or fact;

• (b) the relief claimed relates to separate contracts involving different class members;

• (c) different remedies are sought for different class members;

• (d) the number of class members or the identity of each class member is not known; or

• (e) the class includes a subclass whose members have claims that raise common questions of law or fact not shared by all class members.

Marginal note:Amendment and decertification

299.21 A judge may, on motion, amend an order certifying an action as a class action or, if the conditions for certification are no longer satisfied with respect to the class action, decertify the action.

Marginal note:Continuation of action

299.22 If a judge refuses to certify an action as a class action or decertifies an action as a class action, the judge may permit the action to continue as one or more actions and, for that purpose, the judge may make any appropriate order.

Opting Out and Exclusion

Marginal note:Voluntary

• 299.23 (1) A member of a class involved in a class action may opt out of the action in the manner and within the time specified in the order certifying the action as a class action.

• Marginal note:Automatic

  (2) A member of a class is excluded from the class if the member does not, before the expiry of the time for opting out specified in the order certifying the action as a class action, discontinue an action brought by the member that raises the common questions of law or fact set out in the order certifying the action as a class action.

Discovery

Marginal note:Leave to examine others

• 299.24 (1) A party in a class action may examine a class member, other than the representative plaintiff, for discovery only on leave granted by the Court.

• Marginal note:Examination of other class members

  (2) A party in a class action may examine class members for discovery only after the examination of the representative plaintiff.

• Marginal note:Considerations

  (3) In deciding whether to grant leave to examine class members, the Court shall consider all relevant matters, including

  • (a) the stage of the class action and the issues to be determined at that stage;

  • (b) the presence of subclasses;

  • (c) the necessity of an examination in view of the claims or defences of the party seeking leave;

  • (d) the approximate monetary value of any individual claims; and

  • (e) whether examination could result in undue annoyance, burden or expense for the class members sought to be examined.

• Marginal note:Application of sanctions

  (4) A class member is subject to the same sanctions under these Rules as a party for failure to submit to an examination.

Participation

Marginal note:By class members

• 299.25 (1) To ensure the fair and adequate representation of the interests of a class or any subclass, the Court may, at any time in a class action, permit one or more class members to participate in the proceeding.

• Marginal note:Directions

  (2) When permitting a class member to participate in the proceeding, the Court shall give directions regarding the role of the participant, including costs and matters relating to the procedures to be followed.

Judgments

Marginal note:Separate judgments

• 299.26 (1) A judge may give a single judgment in respect of the common questions of law or fact and separate judgments in respect of any other questions.

• Marginal note:Content

  (2) A judgment on questions of law or fact that are common to a class or subclass shall

  • (a) set out the common questions of law or fact;

  • (b) name or describe the class or subclass members to the extent possible;

  • (c) state the nature of the claims asserted on behalf of the class or subclass; and

  • (d) specify the relief granted.

Marginal note:Common questions

• 299.27 (1) A judgment on questions of law or fact that are common to a class or subclass binds every member of the class or subclass who has not opted out of or been excluded from the class action, but only to the extent that the judgment determines common questions of law or fact that

  • (a) are set out in the order certifying the action as a class action;

  • (b) relate to claims described in that order; and

  • (c) relate to relief sought by the class or subclass as stated in that order.

• Marginal note:Subsequent actions

  (2) A judgment on common questions of law or fact of a class or subclass does not bind a party to the class action in any subsequent action between the party and a person who opted out of or had been excluded from the class action.

Marginal note:Individual questions

• 299.28 (1) If a judge determines common questions of law or fact in favour of a class or subclass and determines that there are questions that are applicable only to certain individual members of the class or subclass, the judge may

  • (a) order that the individual questions be determined in further hearings;

  • (b) appoint one or more persons to evaluate the individual questions and report back to the judge; or

  • (c) direct that the individual questions be determined in any other manner.

  The judge may give directions relating to the procedures to be followed.

• Marginal note:Who may preside

  (2) For the purposes of paragraph (1)(a), the judge who determined the common questions of law or fact, another judge or, in the case of a claim referred to in subsection 50(3), a prothonotary may preside over the hearings of the individual questions.

• Marginal note:Time for making claims

  (3) When a judge determines that there are questions that are applicable only to certain individual members of the class or subclass, the judge shall set a time within which individual members are required to make claims in respect of the individual questions.

Marginal note:Defendant's liability

299.29 If, after determining common questions of law or fact in favour of a class or subclass, a judge determines that the defendant's liability to individual class members cannot be determined without proof by those individual class members, rule 299.28 applies to the determination of the defendant's liability to those class members.

Marginal note:Assessment of monetary relief

• 299.3 (1) A judge may make any order in respect of the assessment of monetary relief, including aggregate assessments, due to the class or subclass.

• Marginal note:Distribution of monetary relief

  (2) A judge may make any order in respect of the distribution of monetary relief, including regarding an undistributed portion of an award due to a class or subclass or its members.

• Marginal note:Special modes of proof

  (3) For the purposes of this rule, a judge may order any special modes of proof.

Settlements

Marginal note:Approval

299.31 A settlement of a class action does not take effect unless approved by a judge and, when approved, binds every member of the class or subclass, as the case may be, who has not opted out of or been excluded from the class action.

Discontinuance

Marginal note:Approval

299.32 The discontinuance of an action commenced by a member of a class of persons on behalf of the members of that class does not take effect unless approved by a judge.

Appeals

Marginal note:Individual questions

• 299.33 (1) A class member may appeal any order determining or dismissing the member's claim in respect of one or more individual questions.

• Marginal note:Representative plaintiff failing to appeal

  (2) If a representative plaintiff does not appeal an order or appeals and later files a notice of discontinuance of the appeal, any member of the class for which the representative plaintiff had been appointed may apply for leave to exercise the right of appeal of the representative plaintiff within 30 days after

  • (a) the expiry of the appeal period available to the representative plaintiff, if the representative plaintiff does not appeal; or

  • (b) the day the notice of discontinuance was filed, if the representative plaintiff appeals but files a notice of discontinuance of the appeal.

Notices

Marginal note:Who gives notice

• 299.34 (1) Notice that an action has been certified as a class action shall be given by the representative plaintiff to the class members in accordance with this rule.

• Marginal note:Dispensation

  (2) A judge may dispense with notice having regard to the factors set out in subsection (3).

• Marginal note:Factors

  (3) A judge shall order when and by what means notice is to be given having regard to

  • (a) the cost of giving notice;

  • (b) the nature of the relief sought;

  • (c) the size of the individual claims of the class members;

  • (d) the number of class members;

  • (e) the presence of subclasses;

  • (f) whether some or all of the class members are likely to opt out of the class action; and

  • (g) the places of residence of class members.

• Marginal note:How given

  (4) The order may provide that notice be given by

  • (a) personal delivery;

  • (b) mail;

  • (c) posting, advertising, publishing or leaflets;

  • (d) individually notifying a sample group within the class; or

  • (e) any other appropriate means or combination of appropriate means.

• Marginal note:Content of notice

  (5) Notice under this rule shall

  • (a) describe the action, including the names and addresses of the representative plaintiffs and the relief sought;

  • (b) state the manner in which and the time within which a class member may opt out of the action;

  • (c) describe the possible financial consequences of the action to the members of the class and subclass;

  • (d) summarize any agreements respecting fees and disbursements

    • (i) between the representative plaintiff and the representative plaintiff's solicitor, and

    • (ii) if the recipient of the notice is a member of a subclass, between the representative plaintiff for that subclass and that representative plaintiff's solicitor;

  • (e) describe any counterclaim being asserted by or against the class or any subclass, including the relief sought in the counterclaim;

  • (f) state that the judgment on the common questions of law or fact for the class, whether favourable or not, will bind all class members who do not opt out of the action;

  • (g) state that the judgment on the common questions of law or fact for a subclass, whether favourable or not, will bind all subclass members who do not opt out of the action;

  • (h) describe the right, if any, of members of the class or subclass to participate in the action; and

  • (i) give an address to which class members may direct inquiries about the action.

• Marginal note:Information about contributions

  (6) With leave of the judge, notice under this rule may include a solicitation of contributions from members of the class or subclass to assist in paying the fees and disbursements of the solicitor of record.

Marginal note:Notice of determination of common questions

299.35 If, in a class action, common questions of law or fact are determined in favour of the class or a subclass, the representative plaintiff for the class or subclass shall give notice to the members of the class or subclass in accordance with the directions of a judge in respect of the contents of the notice and the means of giving notice.

Marginal note:Settlement

299.36 Notice that an offer to settle has been made or that a settlement has been approved under rule 299.31 shall be given by the representative plaintiff to the members of the class or subclass in accordance with the directions of a judge in respect of the contents of the notice and the means of giving notice.

Marginal note:Notice to others

• 299.37 (1) A judge may, at any time, order any party to give any notice that the judge considers necessary to protect the interests of any class member or party or to ensure the fair conduct of the proceeding.

• Marginal note:Application of subsections 299.34(3) and (4)

  (2) Subsections 299.34(3) and (4) apply to a notice given under this rule.

Marginal note:Order

299.38 A judge may order any party to give a notice that another party is required to give under rules 299.34 to 299.37.

Marginal note:Prior approval of notices

299.39 Notices referred to in rules 299.34 to 299.37 shall not be given unless they have been approved by a judge.

Marginal note:Expenses

299.4 The judge has full discretionary power over the amount and allocation of expenses in respect of notices and may determine who is to pay those expenses.

Costs

Marginal note:No costs

• 299.41 (1) Subject to subsections (2) and (3), no costs may be awarded to any party to a motion for certification of an action as a class action, to a class action or to an appeal arising from a class action at any stage of the motion, class action or appeal.

• Marginal note:Exception

  (2) Costs may be awarded against a party referred to in subsection (1) at any time if

  • (a) the conduct of the party tended to unnecessarily lengthen the duration of the proceeding;

  • (b) any step in the proceeding by the party was improper, vexatious or unnecessary or was taken through negligence, mistake or excessive caution; or

  • (c) there are exceptional circumstances that make it unjust to deprive the successful party of costs.

• Marginal note:Individual claims

  (3) The Court has full discretion to award costs with respect to the determination of the individual claims of members of a class.

Marginal note:Approval of payments

299.42 No payments, including indirect payments, shall be made to a solicitor from the proceeds recovered in a class action unless they are approved by a judge.

PART 5Applications

APPLICATION OF THIS PART

Marginal note:Application

300 This Part applies to

• (a) applications for judicial review of administrative action, including applications under section 18.1 or 28 of the Act, unless the Court directs under subsection 18.4(2) of the Act that the application be treated and proceeded with as an action;

• (b) proceedings required or permitted by or under an Act of Parliament to be brought by application, motion, originating notice of motion, originating summons or petition or to be determined in a summary way, other than applications under subsection 33(1) of the Marine Liability Act;

• (c) appeals under subsection 14(5) of the Citizenship Act;

• (d) appeals under section 56 of the Trade-marks Act;

• (e) references from a tribunal under rule 320;

• (f) requests under the Commercial Arbitration Code brought pursuant to subsection 324(1);

• (g) proceedings transferred to the Court under subsection 3(3) or 5(3) of the Divorce Act; and

• (h) applications for registration, recognition or enforcement of a foreign judgment brought under rules 327 to 334.

GENERAL

Marginal note:Contents of application

301 An application shall be commenced by a notice of application in Form 301, setting out

• (a) the name of the court to which the application is addressed;

• (b) the names of the applicant and respondent;

• (c) where the application is an application for judicial review,

  • (i) the tribunal in respect of which the application is made, and

  • (ii) the date and details of any order in respect of which judicial review is sought and the date on which it was first communicated to the applicant;

• (d) a precise statement of the relief sought;

• (e) a complete and concise statement of the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on; and

• (f) a list of the documentary evidence to be used at the hearing of the application.

Marginal note:Limited to single order

302 Unless the Court orders otherwise, an application for judicial review shall be limited to a single order in respect of which relief is sought.

Marginal note:Respondents

• 303 (1) Subject to subsection (2), an applicant shall name as a respondent every person

  • (a) directly affected by the order sought in the application, other than a tribunal in respect of which the application is brought; or

  • (b) required to be named as a party under an Act of Parliament pursuant to which the application is brought.

• Marginal note:Application for judicial review

  (2) Where in an application for judicial review there are no persons that can be named under subsection (1), the applicant shall name the Attorney General of Canada as a respondent.

• Marginal note:Substitution for Attorney General

  (3) On a motion by the Attorney General of Canada, where the Court is satisfied that the Attorney General is unable or unwilling to act as a respondent after having been named under subsection (2), the Court may substitute another person or body, including the tribunal in respect of which the application is made, as a respondent in the place of the Attorney General of Canada.

Marginal note:Service of notice of application

• 304 (1) Unless the Court directs otherwise, within 10 days after the issuance of a notice of application, the applicant shall serve it on

  • (a) all respondents;

  • (b) in respect of an application for judicial review or an application appealing the order of a tribunal,

    • (i) in respect of an application other than one relating to a decision of a visa officer, the tribunal in respect of which the application is brought,

    • (ii) any other person who participated in the proceeding before the tribunal in respect of which the application is made, and

    • (iii) the Attorney General of Canada;

  • (c) where the application is made under the Access to Information Act, Part 1 of the Personal Information Protection and Electronic Documents Act, the Privacy Act or the Official Languages Act, the Commissioner named for the purposes of that Act; and

  • (d) any other person required to be served under an Act of Parliament pursuant to which the application is brought.

• Marginal note:Motion for directions as to service

  (2) Where there is any uncertainty as to who are the appropriate persons to be served with a notice of application, the applicant may bring an ex parte motion for directions to the Court.

• Marginal note:Proof of service

  (3) Proof of service of a notice of application shall be filed within 10 days after service of the notice of application.

Marginal note:Notice of appearance

305 A respondent who intends to oppose an application shall, within 10 days after being served with a notice of application, serve and file a notice of appearance in Form 305.

Marginal note:Applicant's affidavits

306 Within 30 days after issuance of a notice of application, an applicant shall serve and file its supporting affidavits and documentary exhibits.

Marginal note:Respondent's affidavits

307 Within 30 days after service of the applicant's affidavits, a respondent shall serve and file any supporting affidavits and documentary exhibits.

Marginal note:Cross-examinations

308 Cross-examination on affidavits must be completed by all parties within 20 days after the filing of the respondent’s affidavits or the expiration of the time for doing so, whichever is earlier.

Marginal note:Applicant's record

• 309 (1) An applicant shall, within 20 days after completion of all parties' cross-examinations or the expiration of the time for doing so, whichever is earlier,

  • (a) serve the applicant's record; and

  • (b) file

    • (i) where the application is brought in the Federal Court, three copies of the applicant's record, and

    • (ii) where the application is brought in the Federal Court of Appeal, five copies of the applicant's record.

• Marginal note:Contents of applicant's record

  (2) An applicant's record shall contain, on consecutively numbered pages and in the following order,

  • (a) a table of contents giving the nature and date of each document in the record;

  • (b) the notice of application;

  • (c) any order in respect of which the application is made;

  • (d) each supporting affidavit and documentary exhibit;

  • (e) the transcript of any cross-examination on affidavits that the applicant has conducted;

  • (f) the portions of any transcript of oral evidence before a tribunal that are to be used by the applicant at the hearing;

  • (g) a description of any physical exhibits to be used by the applicant at the hearing; and

  • (h) the applicant's memorandum of fact and law.

Marginal note:Respondent's record

• 310 (1) A respondent to an application shall, within 20 days after service of the applicant's record,

  • (a) serve the respondent's record; and

  • (b) file

    • (i) where the application is brought in the Federal Court, three copies of the respondent's record, and

    • (ii) where the application is brought in the Federal Court of Appeal, five copies of the respondent's record.

• Marginal note:Contents of respondent's record

  (2) The record of a respondent shall contain, on consecutively numbered pages and in the following order,

  • (a) a table of contents giving the nature and date of each document in the record;

  • (b) each supporting affidavit and documentary exhibit;

  • (c) the transcript of any cross-examination on affidavits that the respondent has conducted;

  • (d) the portions of any transcript of oral evidence before a tribunal that are to be used by the respondent at the hearing;

  • (e) a description of any physical exhibits to be used by the respondent at the hearing; and

  • (f) the respondent's memorandum of fact and law.

Marginal note:Preparation by Registry

• 311 (1) On motion, the Court may order the Administrator to prepare a record on a party’s behalf.

• Marginal note:Documents to be provided

  (2) A party bringing a motion for an order under subsection (1) shall provide the Administrator with the documents referred to in subsection 309(2) or 310(2), as the case may be.

Marginal note:Additional steps

312 With leave of the Court, a party may

• (a) file affidavits additional to those provided for in rules 306 and 307;

• (b) conduct cross-examinations on affidavits additional to those provided for in rule 308; or

• (c) file a supplementary record.

Marginal note:Requirement to file additional material

313 Where the Court considers that the application records of the parties are incomplete, the Court may order that other material, including any portion of a transcript, be filed.

Marginal note:Requisition for hearing

• 314 (1) An applicant shall, within 10 days after service of the respondent’s record or the expiration of the time for doing so, whichever is earlier, serve and file a requisition, in Form 314, requesting that a date be set for the hearing of the application.

• Marginal note:Contents of requisition

  (2) A requisition referred to in subsection (1) shall

  • (a) include a statement that the requirements of subsection 309(1) have been satisfied and that any notice required under section 57 of the Act has been given;

  • (b) set out the place at which the hearing should be held;

  • (c) set out the maximum number of hours or days required for the hearing;

  • (d) list any dates within the following 90 days on which the parties are not available for a hearing;

  • (e) set out the name, address, telephone number and fax number of the solicitor for every party to the application or, where a party is not represented by a solicitor, the person’s name, address, telephone number and any fax number; and

  • (f) indicate whether the hearing will be in English or French, or partly in English and partly in French.

Marginal note:Pre-hearing conference

315 The Court may order that a conference be held in accordance with rules 258 to 267, with such modifications as are necessary.

Marginal note:Testimony regarding issue of fact

316 On motion, the Court may, in special circumstances, authorize a witness to testify in court in relation to an issue of fact raised in an application.

MATERIAL IN THE POSSESSION OF A TRIBUNAL

Marginal note:Material from tribunal

• 317 (1) A party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party by serving on the tribunal and filing a written request, identifying the material requested.

• Marginal note:Request in notice of application

  (2) An applicant may include a request under subsection (1) in its notice of application.

• Marginal note:Service of request

  (3) If an applicant does not include a request under subsection (1) in its notice of application, the applicant shall serve the request on the other parties.

Marginal note:Material to be transmitted

• 318 (1) Within 20 days after service of a request under rule 317, the tribunal shall transmit

  • (a) a certified copy of the requested material to the Registry and to the party making the request; or

  • (b) where the material cannot be reproduced, the original material to the Registry.

• Marginal note:Objection by tribunal

  (2) Where a tribunal or party objects to a request under rule 317, the tribunal or the party shall inform all parties and the Administrator, in writing, of the reasons for the objection.

• Marginal note:Directions as to procedure

  (3) The Court may give directions to the parties and to a tribunal as to the procedure for making submissions with respect to an objection under subsection (2).

• Marginal note:Order

  (4) The Court may, after hearing submissions with respect to an objection under subsection (2), order that a certified copy, or the original, of all or part of the material requested be forwarded to the Registry.

Marginal note:Return of material

319 Unless the Court directs otherwise, after an application has been heard, the Administrator shall return to a tribunal any original material received from it under rule 318.

REFERENCES FROM A TRIBUNAL

Definition of reference

• 320 (1) In rules 321 to 323, reference means a reference to the Court made by a tribunal or by the Attorney General of Canada under section 18.3 of the Act.

• Marginal note:Procedures on applications apply

  (2) Subject to rules 321 to 323, rules 309 to 311 apply to references.

Marginal note:Notice of application on reference

321 A notice of application in respect of a reference shall set out

• (a) the name of the court to which the application is addressed;

• (b) the name of the applicant; and

• (c) the question being referred.

Marginal note:Directions on reference

322 Where the Attorney General of Canada or a tribunal makes a reference, the Attorney General or tribunal shall bring an ex parte motion for directions as to

• (a) which persons shall be given notice of the reference;

• (b) the material that will constitute the case to be determined on the reference;

• (c) the preparation, filing and service of copies of the material;

• (d) the preparation, filing and service of memoranda of fact and law;

• (e) the procedure for the hearing of the reference;

• (f) the time and place for the hearing of the reference; and

• (g) the role, if any, of the tribunal in question.

Marginal note:Notice of intention to become party

323 Any of the following persons may become a party to a reference by serving and filing a notice of intention to participate in Form 323:

• (a) the Attorney General of Canada;

• (b) the attorney general of a province, for the purpose of adducing evidence or making submissions to the Court under subsection 57(4) of the Act; and

• (c) a person who participated in the proceeding before the tribunal in respect of which the reference is made.

COMMERCIAL ARBITRATIONS

Marginal note:Notice of application

• 324 (1) Subject to subsection (2), a request under the Commercial Arbitration Code, set out in the schedule to the Commercial Arbitration Act, shall be brought by a notice of application.

• Marginal note:Exception

  (2) Where the subject matter of an arbitration to which a request under the Code relates is already the subject matter of a proceeding before the Court, the request may be brought as a motion in that proceeding.

• Marginal note:Affidavit

  (3) An affidavit in support of a notice of application under subsection (1) or a motion under subsection (2) shall be accompanied by a copy of the parties' arbitration agreement and state

  • (a) all material facts;

  • (b) unless the request is brought pursuant to article 8(1) or 9 of the Code, that the arbitration to which the request relates is governed by Canadian law or has been, is being or will be held within the jurisdiction of the Court; and

  • (c) where the request is brought pursuant to article 27 of the Code, the nature of the evidence to be obtained, the name and address of any person to be heard as a witness and the subject-matter of any testimony required from that person, and describe any document to be produced or property to be inspected.

DIVORCE PROCEEDINGS

Marginal note:Procedure of province to apply

• 325 (1) Unless the Court orders otherwise, where the Court makes a direction pursuant to subsection 3(3) or 5(3) of the Divorce Act, the rules made under section 25 of that Act for the province specified in the direction pursuant to subsection 23(2) of that Act shall apply to the conduct of the proceeding in the Court, with such modifications as the circumstances require.

• Marginal note:Motion for modification of rules

  (2) A party to a proceeding referred to in subsection (1) may at any time, by motion, request a modification to the rules referred to in that subsection.

FOREIGN JUDGMENTS AND ARBITRAL AWARDS

Marginal note:Definitions

326 The following definitions apply to rules 327 to 334.

arbitration agreement

convention d'arbitrage

arbitration agreement means an agreement in writing as defined in article II of the convention set out in the schedule to the United Nations Foreign Arbitral Awards Convention Act or an arbitration agreement as defined in Article 7 of the Commercial Arbitration Code, set out in the schedule to the Commercial Arbitration Act. (convention d'arbitrage)

foreign judgment

jugement étranger

foreign judgment means a judgment or arbitral award that may be registered in a court in Canada in accordance with

• (a) sections 63 to 71 of the Marine Liability Act;

• (b) the Canada-United Kingdom Civil and Commercial Judgments Convention Act;

• (c) the United Nations Foreign Arbitral Awards Convention Act; or

• (d) articles 35 and 36 of the Commercial Arbitration Code, set out in the schedule to the Commercial Arbitration Act. (jugement étranger)

Marginal note:Form of application

327 An application for registration, recognition or enforcement of a foreign judgment shall be in Form 327.

Marginal note:Ex parte application

• 328 (1) An application under rule 327 may be brought ex parte.

• Marginal note:Directions regarding service

  (2) On an ex parte application under subsection (1), the Court may direct that notice of the application be served on the foreign judgment debtor and may give such directions respecting the manner of service as it considers just.

Marginal note:Affidavit

• 329 (1) An affidavit filed in an application under rule 327 shall be accompanied by an exemplified or certified copy of the foreign judgment and a copy of any arbitration agreement pursuant to which the judgment was awarded and state

  • (a) that the foreign judgment was not fully satisfied as at the filing of the application;

  • (b) whether the foreign judgment debtor appeared in the original proceeding;

  • (c) an address in Canada for service on the foreign judgment creditor;

  • (d) the name and usual or last known address of the foreign judgment debtor;

  • (e) whether interest has accrued on the amount payable under the foreign judgment in accordance with the law of the state of the originating court or arbitral tribunal and, if interest has accrued, the rate of interest, the day from which it is payable, the amount due at the time of the filing of the application and, where applicable, the day on which interest ceases to accrue;

  • (f) the rate of exchange into Canadian currency prevailing on the day on which the foreign judgment was rendered, as ascertained from a chartered bank in Canada;

  • (g) that, having made careful and full inquiries, the applicant knows of no impediment to registration, recognition or enforcement of the foreign judgment; and

  • (h) that the foreign judgment is executory, that no appeal or other form of judicial review is pending and that any time prescribed for the making of an appeal or application for judicial review has expired.

• Marginal note:Affidavit of service

  (2) Where a foreign judgment debtor did not appear in the original proceeding, an affidavit referred to in subsection (1) shall be accompanied by an affidavit of service on the foreign judgment debtor of the document instituting the original proceedings.

Marginal note:Other evidence

330 The Court may accept evidence on an application under rule 327 other than affidavit evidence.

Marginal note:Amounts in Canadian currency

331 Unless the Court orders otherwise, an amount payable under a foreign judgment shall be converted into the equivalent amount in Canadian currency on the basis of the rate of exchange, ascertained from a chartered bank in Canada, that was prevailing on the day on which the foreign judgment was rendered.

Marginal note:Interest

• 332 (1) Any interest on an amount payable under a foreign judgment that has accrued to the day of registration of the foreign judgment shall be added to the amount payable under the foreign judgment.

• Marginal note:Interest

  (2) Unless the Court orders otherwise, an amount payable under a foreign judgment registered pursuant to an application under rule 327 bears interest from the day of registration at the rate set out in section 3 of the Interest Act.

Marginal note:Service of order for registration

333 Unless the Court orders otherwise, a foreign judgment creditor who obtains an order for registration of a foreign judgment shall personally serve the order on the foreign judgment debtor, together with a translation thereof in the language of the foreign judgment and an affidavit attesting to its accuracy.

Marginal note:Execution

334 Unless the Court orders otherwise, execution shall not be issued on a foreign judgment registered pursuant to an application under rule 327 until proof of service of the order for registration has been filed.

PART 6Appeals

APPLICATION OF THIS PART

Marginal note:Application

335 This Part applies to

• (a) appeals to the Federal Court of Appeal from the Federal Court, including appeals from interlocutory orders;

• (b) appeals to the Federal Court of Appeal from the Tax Court of Canada under subsections 27(1.1) and (1.2) of the Act; and

• (c) appeals to the Court under an Act of Parliament, unless otherwise indicated in that Act or these Rules.

GENERAL

Interpretation

Definition of first instance

336 In this Part, first instance means a proceeding in the Federal Court, the Tax Court of Canada or the tribunal whose order is being appealed.

Commencement of Appeal

Marginal note:Content of general notice of appeal

337 An appeal, other than an appeal from a final judgment of the Tax Court of Canada under subsection 27(1.2) of the Act, shall be commenced by a notice of appeal, in Form 337, setting out

• (a) the name of the court to which the appeal is taken;

• (b) the names of the parties;

• (c) a precise statement of the relief sought;

• (d) a complete and concise statement of the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on;

• (e) the name of the court or tribunal appealed from;

• (f) the date and details of the order under appeal; and

• (g) the place proposed for the hearing of the appeal.

Marginal note:Content of notice of appeal — certain judgments of Tax Court of Canada

337.1 An appeal from a final judgment of the Tax Court of Canada under subsection 27(1.2) of the Act shall be commenced by a notice of appeal, in Form 337.1, setting out

• (a) the names of the parties;

• (b) a precise statement of the relief sought;

• (c) a complete and concise statement of the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on;

• (d) the date and details of the final judgment under appeal; and

• (e) the place proposed for the hearing of the appeal.

Marginal note:Persons to be included as respondents

• 338 (1) Unless the Court orders otherwise, an appellant shall include as a respondent in an appeal

  • (a) every party in the first instance who is adverse in interest to the appellant in the appeal;

  • (b) any other person required to be named as a party by an Act of Parliament pursuant to which the appeal is brought; and

  • (c) where there are no persons that are included under paragraph (a) or (b), the Attorney General of Canada.

• Marginal note:Substitution for Attorney General

  (2) On a motion by the Attorney General of Canada, where the Court is satisfied that the Attorney General is unable or unwilling to act as a respondent in an appeal, the Court may substitute another person or body, including a tribunal whose order is being appealed, as a respondent in the place of the Attorney General of Canada.

Marginal note:Service of notice of appeal

• 339 (1) Unless the Court directs otherwise or an Act of Parliament authorizing the appeal provides otherwise, within 10 days after the issuance of a notice of appeal, the appellant shall serve it on

  • (a) all respondents;

  • (b) in the case of an appeal of an order of a tribunal,

    • (i) the Attorney General of Canada, and

    • (ii) the tribunal or its chief executive officer;

  • (c) any person who is not a party and who participated in the first instance; and

  • (d) any other person directly affected by the appeal.

• Marginal note:Proof of service

  (2) Proof of service of a notice of appeal shall be filed within 10 days after the notice of appeal is served.

Marginal note:Solicitor of record and address for service

340 In an appeal from the Federal Court to the Federal Court of Appeal, the solicitor of record and the address for service of a party on the appeal shall be the same as they were in the first instance.

Marginal note:Appearance or cross-appeal

• 341 (1) A respondent who intends to participate in an appeal shall, within 10 days after service of the notice of appeal, serve and file

  • (a) a notice of appearance in Form 341A; or

  • (b) where the respondent seeks a different disposition of the order appealed from, a notice of cross-appeal in Form 341B.

• Marginal note:Content of notice of cross-appeal

  (2) A notice of cross-appeal shall set out

  • (a) a precise statement of the relief sought; and

  • (b) a complete and concise statement of the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on.

• Marginal note:Leave for late cross-appeal

  (3) Where a respondent has not filed a notice of cross-appeal under subsection (1), the cross-appeal may not be heard without leave of the Court.

Marginal note:Consolidation of appeals

• 342 (1) Unless the Court orders otherwise, where more than one party appeals from an order, all appeals shall be consolidated.

• Marginal note:Directions

  (2) The Court may give directions as to the procedure to be followed in a consolidation under subsection (1).

Appeal Books

Marginal note:Agreement re appeal book

• 343 (1) Within 30 days after the filing of a notice of appeal, the parties shall agree in writing as to the documents, exhibits and transcripts to be included in the appeal book and shall file that agreement.

• Marginal note:Limitation

  (2) The parties shall include in an appeal book only such documents, exhibits and transcripts as are required to dispose of the issues on appeal.

• Marginal note:Motion to determine content of appeal book

  (3) If no agreement is reached within the period referred to in subsection (1), the appellant shall, within 10 days after the expiration of that period, serve and file a notice of motion under rule 369 to request that the Court determine the content of the appeal book.

• Marginal note:Order for transcripts or reproductions

  (4) Where a transcript or the reproduction of exhibits is required, the appellant shall order it and shall file proof of the order within 10 days after filing an agreement under subsection (1) or obtaining an order under subsection (3).

• Marginal note:Preparation of appeal book

  (5) The appeal book shall be prepared by the appellant forthwith unless, on the motion of the appellant, the Court orders the Administrator to prepare an appeal book on the appellant's behalf from documents provided by the appellant.

Marginal note:Content of appeal book

• 344 (1) An appeal book shall have a grey cover and contain, on consecutively numbered pages and in the following order,

  • (a) a table of contents describing each document;

  • (b) the notice of appeal and any notice of cross-appeal;

  • (c) the order appealed from, as signed and entered, and any reasons therefor;

  • (d) the originating document, any other pleadings and any other document in the first instance that defines the issues in the appeal;

  • (e) subject to subsection (2), all documents, exhibits and transcripts agreed on under subsection 343(1) or ordered to be included on a motion under subsection 343(3);

  • (f) any order made in respect of the conduct of the appeal;

  • (g) any other document relevant to the appeal;

  • (h) an agreement reached under subsection 343(1) as to the contents of the appeal book or an order made under subsection 343(3); and

  • (i) a certificate in Form 344, signed by the appellant's solicitor, stating that the contents of the appeal book are complete and legible.

• Marginal note:Transcripts separate

  (2) Transcripts may be reproduced in a separate document.

Marginal note:Service and filing of appeal book

345 Within 30 days after filing an agreement under subsection 343(1) or obtaining an order under subsection 343(3), an appellant shall serve the appeal book and file

• (a) where the appeal is brought in the Federal Court, three copies of it; and

• (b) where the appeal is brought in the Federal Court of Appeal, five copies of it.

Memoranda

Marginal note:Appellant's memorandum

• 346 (1) Within 30 days after filing an appeal book, the appellant shall serve and file a memorandum of fact and law.

• Marginal note:Respondent's memorandum

  (2) Within 30 days after service of the appellant's memorandum of fact and law, the respondent shall serve and file the respondent's memorandum of fact and law.

• Marginal note:Where cross-appeal filed

  (3) Where a respondent has served a notice of cross-appeal under rule 341,

  • (a) the respondent shall serve and file a memorandum of fact and law as appellant by cross-appeal, as part of the respondent's memorandum of fact and law, within the time set out in subsection (2); and

  • (b) the appellant shall serve and file a memorandum of fact and law as respondent to cross-appeal, within 30 days after service of the respondent's memorandum of fact and law.

• Marginal note:Colour of memorandum

  (4) The cover of a memorandum of fact and law

  • (a) of an appellant shall be beige;

  • (b) of a respondent shall be green; and

  • (c) of an intervener shall be blue.

• Marginal note:Number of memoranda to be filed

  (5) Memoranda of fact and law shall be filed in the same number as are appeal books.

Requisition for Hearing

Marginal note:Requisition for hearing

• 347 (1) Within 20 days after service of the respondent’s memorandum of fact and law or 20 days after the expiration of the time for service of the respondent’s memorandum of fact and law, whichever is the earlier, an appellant shall serve and file a requisition in Form 347 requesting that a date be set for the hearing of the appeal.

• Marginal note:Default by appellant

  (2) Where an appellant fails to comply with subsection (1), a respondent may, in lieu of bringing a motion under rule 167, serve and file a requisition in Form 347 to request that a date be set for the hearing of the appeal.

• Marginal note:Content of requisition

  (3) A requisition referred to in subsection (1) shall

  • (a) include a statement that the requirements of subsections 346(1) and (5) have been satisfied and that any notice required under section 57 of the Act has been given;

  • (b) set out the location at which the hearing should be held;

  • (c) set out the maximum number of hours or days required for the hearing;

  • (d) list any dates within the following 90 days on which the parties are not available for a hearing;

  • (e) set out the name, address, telephone number and fax number of the solicitor for every party to the appeal or, where a party is not represented by a solicitor, the person’s name, address, telephone number and any fax number; and

  • (f) indicate whether the hearing will be in English or French, or partly in English and partly in French.

Book of Authorities

Marginal note:Joint book of authorities

• 348 (1) Subject to subsection (2), at least 30 days before the hearing date, the parties shall file

  • (a) where the appeal is brought in the Federal Court, three copies of a joint book of statutes, regulations and authorities; or

  • (b) where the appeal is brought in the Federal Court of Appeal, five copies of a joint book of statutes, regulations and authorities.

• Marginal note:Separate books

  (2) If the parties cannot agree on a joint book of statutes, regulations and authorities, they shall file separate books in lieu thereof, without reproducing documents included in the book of another party.

• Marginal note:Enactments in both official languages

  (3) Extracts of federal statutes and regulations in a book of statutes, regulations and authorities shall be reproduced in both official languages.

• Marginal note:Colour of cover

  (4) The cover of a book of statutes, regulations and authorities shall be

  • (a) where the book is filed jointly, burgundy; and

  • (b) where the book is filed separately, the same colour as the filing party's memorandum of fact and law.

CONSENT TO REVERSAL OR VARIATION OF JUDGMENT

Marginal note:Consent to reversal or variation of judgment

• 349 (1) A respondent may consent to the reversal or variation of an order appealed from by serving and filing a notice to that effect.

• Marginal note:Judgment on consent

  (2) The Court may pronounce judgment in accordance with a notice filed under subsection (1) if the resultant judgment is one that could have been given on consent.

MATERIAL IN THE POSSESSION OF A TRIBUNAL

Marginal note:Material in possession of a tribunal

350 Rules 317 to 319 apply to appeals and motions for leave to appeal, with such modifications as are necessary.

NEW EVIDENCE ON APPEAL

Marginal note:New evidence on appeal

351 In special circumstances, the Court may grant leave to a party to present evidence on a question of fact.

MOTIONS FOR LEAVE TO APPEAL

Marginal note:Leave to appeal

• 352 (1) Unless the Court orders otherwise, where leave to appeal is required, it shall be obtained on a motion brought in writing.

• Marginal note:Respondents and service

  (2) On a motion under subsection (1) the moving party shall name as respondents all persons referred to in rule 338 and personally serve all persons referred to in rule 339.

Marginal note:Motion record

• 353 (1) A person bringing a motion under rule 352 shall serve the motion record and, unless the Court orders otherwise, file three copies thereof.

• Marginal note:Content of motion record

  (2) A motion record referred to in subsection (1) shall contain, on consecutively numbered pages and in the following order,

  • (a) the order in respect of which leave to appeal is sought;

  • (b) the pleadings and any other material that is necessary for the hearing of the motion;

  • (c) an affidavit that sets out any facts relied on in the motion that do not appear on the Court file; and

  • (d) a memorandum of fact and law.

Marginal note:Respondent's memorandum of fact and law

354 A respondent to a motion for leave to appeal shall serve a memorandum of fact and law and any supporting affidavits and, unless the Court orders otherwise, file three copies thereof not later than 20 days after service of the motion record.

Marginal note:Reply

355 A party bringing a motion for leave to appeal shall serve any reply to the memorandum of fact and law of a respondent and, unless the Court orders otherwise, file three copies thereof not later than 10 days after service thereof.

Marginal note:Disposition of motion

356 On the filing of a reply under rule 355 or the expiration of the period allowed for a reply, the Court may dispose in writing of a motion for leave to appeal.

LEAVE TO APPEAL TO THE SUPREME COURT OF CANADA

Marginal note:Motion for leave to appeal to Supreme Court

• 357 (1) Notwithstanding rule 352, where a judgment of the Federal Court of Appeal is delivered from the bench, a motion under section 37.1 of the Supreme Court Act for leave to appeal from the judgment to the Supreme Court of Canada may be made at the time the judgment is delivered and without prior notice.

• Marginal note:Grounds for motion for leave

  (2) A motion for leave to appeal under section 37.1 of the Supreme Court Act shall, unless the Court permits otherwise, be argued on the case, and on the reasons for judgment, from which leave to appeal is sought.

• Marginal note:Number of judges

  (3) A motion for leave to appeal under section 37.1 of the Supreme Court Act shall be heard before not fewer than three judges, who need not be the judges who heard the matter under appeal.

PART 7Motions

Marginal note:Application

358 This Part applies to motions other than motions for leave to appeal under Part 6.

Marginal note:Notice of motion

359 Except with leave of the Court, a motion shall be initiated by a notice of motion, in Form 359, setting out

• (a) in respect of a motion other than one made under rule 369, the time, place and estimated duration of the hearing of the motion;

• (b) the relief sought;

• (c) the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on; and

• (d) a list of the documents or other material to be used at the hearing of the motion.

Marginal note:Hearing date for motions

360 No notice of motion may be filed unless it is expressly made returnable

• (a) at sittings fixed under rule 34;

• (b) at a time and place appointed under subsection 35(2); or

• (c) in writing, under rule 369.

Marginal note:Service on ex parte motion

361 Notwithstanding rules 362, 364, 367 and 370, a party bringing an ex parte motion need not comply with the service requirements set out in those rules.

Marginal note:Service and filing of notice

• 362 (1) Subject to subsection (2), on a motion other than a motion under rule 369, a notice of motion and any affidavit required under rule 363 shall be served and filed at least two days before the day set out in the notice for the hearing of the motion.

• Marginal note:Motion on less than two days notice

  (2) The Court may hear a motion referred to in subsection (1) on less than two days notice

  • (a) where the motion is made on notice, if all parties consent; or

  • (b) in any case, if the moving party satisfies the Court of the urgency of the motion.

Marginal note:Evidence on motion

363 A party to a motion shall set out in an affidavit any facts to be relied on by that party in the motion that do not appear on the Court file.

Marginal note:Motion record

• 364 (1) Unless the Court orders otherwise, a person bringing a motion shall serve a motion record and file three copies thereof.

• Marginal note:Contents of motion record

  (2) A moving party's motion record shall contain, on consecutively numbered pages arranged in the following order,

  • (a) a table of contents;

  • (b) the notice of motion;

  • (c) all affidavits and other material served by the moving party for use on the motion;

  • (d) subject to rule 368, the portions of any transcripts on which the moving party intends to rely;

  • (e) subject to rule 366, written representations; and

  • (f) any other filed material that is necessary for the hearing of the motion.

• Marginal note:Service and filing of motion record

  (3) Subject to subsections 51(2), 163(1) and 214(1), on a motion other than a motion under rule 369, the motion record shall be served and filed at least two days before the day set out in the notice of motion for the hearing of the motion.

Marginal note:Respondent's motion record

• 365 (1) Subject to subsections 214(2) and 369(2), a respondent to a motion shall serve a respondent's motion record and file three copies of it not later than 2:00 p.m. on the last business day before the hearing of the motion.

• Marginal note:Contents of motion record

  (2) The motion record of a respondent to a motion shall contain, on consecutively numbered pages and in the following order,

  • (a) a table of contents;

  • (b) all affidavits and other material to be used by the respondent on the motion that is not included in the moving party's motion record;

  • (c) subject to rule 368, the portions of any transcripts on which the respondent intends to rely;

  • (d) subject to rule 366, written representations; and

  • (e) any other filed material not contained in the moving party's motion record that is necessary for the hearing of the motion.

Marginal note:Where memorandum of fact and law required

366 On a motion for summary judgment, for an interlocutory injunction, for the determination of a question of law, for the certification of an action as a class action or where the Court so orders, a motion record shall contain a memorandum of fact and law instead of written representations.

Marginal note:Documents filed as part of motion record

367 A notice of motion or any affidavit required to be filed by a party to a motion may be served and filed as part of the party’s motion record and need not be served and filed separately.

Marginal note:Transcripts of cross-examinations

368 Transcripts of all cross-examinations on affidavits on a motion shall be filed before the hearing of the motion.

Marginal note:Motions in writing

• 369 (1) A party may, in a notice of motion, request that the motion be decided on the basis of written representations.

• Marginal note:Request for oral hearing

  (2) A respondent to a motion brought in accordance with subsection (1) shall serve and file a respondent’s record within 10 days after being served under rule 364 and, if the respondent objects to disposition of the motion in writing, indicate in its written representations or memorandum of fact and law the reasons why the motion should not be disposed of in writing.

• Marginal note:Reply

  (3) A moving party may serve and file written representations in reply within four days after being served with a respondent’s record under subsection (2).

• Marginal note:Disposition of motion

  (4) On the filing of a reply under subsection (3) or on the expiration of the period allowed for a reply, the Court may dispose of a motion in writing or fix a time and place for an oral hearing of the motion.

Marginal note:Abandonment of motion

• 370 (1) A party who brings a motion may abandon it by serving and filing a notice of abandonment in Form 370.

• Marginal note:Deemed abandonment

  (2) Where a moving party fails to appear at the hearing of a motion without serving and filing a notice of abandonment, it is deemed to have abandoned the motion.

Marginal note:Testimony regarding issue of fact

371 On motion, the Court may, in special circumstances, authorize a witness to testify in court in relation to an issue of fact raised on a motion.

PART 8Preservation of Rights in Proceedings

GENERAL

Marginal note:Motion before proceeding commenced

• 372 (1) A motion under this Part may not be brought before the commencement of a proceeding except in a case of urgency.

• Marginal note:Undertaking to commence proceeding

  (2) A party bringing a motion before the commencement of a proceeding shall undertake to commence the proceeding within the time fixed by the Court.

INTERIM AND INTERLOCUTORY INJUNCTIONS

Marginal note:Availability

• 373 (1) On motion, a judge may grant an interlocutory injunction.

• Marginal note:Undertaking to abide by order

  (2) Unless a judge orders otherwise, a party bringing a motion for an interlocutory injunction shall undertake to abide by any order concerning damages caused by the granting or extension of the injunction.

• Marginal note:Expedited hearing

  (3) Where it appears to a judge that the issues in a motion for an interlocutory injunction should be decided by an expedited hearing of the proceeding, the judge may make an order under rule 385.

• Marginal note:Evidence at hearing

  (4) A judge may order that any evidence submitted at the hearing of a motion for an interlocutory injunction shall be considered as evidence submitted at the hearing of the proceeding.