Federal Courts Rules (SOR/98-106)

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) Unless the Court orders otherwise, a party bringing a motion for leave to appeal shall serve the motion record and file an electronic copy of or, subject to rule 72.4, three paper copies of that record.

• 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 and any reasons, including dissenting reasons, given in respect of that order;

  • (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 Unless the Court orders otherwise, a respondent to a motion for leave to appeal shall serve a memorandum of fact and law and any supporting affidavits and file an electronic copy of or, subject to rule 72.4, three paper copies of each of them no later than 20 days after the day on which the motion record is served.

Marginal note:Reply

355 Unless the Court orders otherwise, a party bringing a motion for leave to appeal shall serve any reply to the respondent’s memorandum of fact and law and file an electronic copy of or, subject to rule 72.4, three paper copies of the reply no later than 10 days after the day on which it is served.

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 brought under rule 369 or 369.2, 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 for the purposes of the motion.

Marginal note:Return of motion

360 A notice of motion shall not be filed unless it is made returnable

• (a) at sittings fixed under rule 34;

• (b) at a time and place appointed under subsection 35(2); or

• (c) in accordance with rule 369 or 369.2, as the case may be.

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 three days before the day set out in the notice for the hearing of the motion.

• Marginal note:Motion on less than three days notice

  (2) The Court may hear the motion on less than three 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 an electronic copy of or, subject to rule 72.4, three paper copies of that record.

• 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 purposes of the motion.

• Marginal note:Service and filing of motion record

  (3) Subject to subsections 51(2), 163(2) and 213(3), on a motion other than a motion under rule 369, the motion record shall be served and filed at least three 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) A respondent to a motion shall serve a respondent’s motion record and file one electronic copy or, subject to Rule 72.4, three paper copies of the record no later than

  • (a) in the case of a motion brought in the Federal Court, and subject to subsections 213(4) and 369(2), 2:00 p.m. on the day that is two days before the day fixed for the hearing of the motion; and

  • (b) in the case of a motion brought in the Federal Court of Appeal, 10 days after the day on which they are served with the moving party’s motion record.

• 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 purposes of the motion.

Marginal note:Memorandum of fact and law required

366 On a motion for summary judgment or summary trial, for an interlocutory injunction, for the determination of a question of law or for the certification of a proceeding as a class proceeding, or if 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:Motions in the Federal Court of Appeal

369.1 Rule 362, subsection 364(3) and rules 366 to 369 do not apply to a motion that is brought in the Federal Court of Appeal.

Marginal note:Written representations only — Federal Court of Appeal

• 369.2 (1) Unless otherwise ordered by the Court and subject to subsection (2), all motions brought in the Federal Court of Appeal shall be decided on the basis of written representations.

• Marginal note:Request for oral hearing

  (2) A party to a motion may make a written request that the motion be heard orally. The request, together with the reasons why the motion should be heard orally, shall be attached as a separate page at the end of the party’s motion record.

• Marginal note:Reply by moving party

  (3) Unless the motion is to be heard orally, the moving party may serve and file written representations in reply within four days after the day on which they are served with the respondent’s motion record.

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.