Federal Courts Rules (SOR/98-106)

Marginal note:Costs of abandoned motion

411 The costs of a motion that is abandoned or deemed to be abandoned may be assessed on the filing of

• (a) the notice of motion, together with an affidavit stating that the notice was not filed within the prescribed time or that the moving party did not appear at the hearing of the motion; or

• (b) where a notice of abandonment was served, the notice of abandonment.

Marginal note:Costs of discontinued proceeding

412 The costs of a proceeding that is discontinued may be assessed on the filing of the notice of discontinuance.

Marginal note:Accounts of solicitor for Crown

• 413 (1) Where requested by the Attorney General of Canada, a prothonotary shall assess any costs payable by the Crown to a solicitor acting for the Crown in a proceeding.

• Marginal note:Existing rights

  (2) Subsection (1) shall not be construed so as to prejudice any rights between a solicitor and a client in respect of the recovery of the solicitor’s costs in any competent court.

Marginal note:Review of assessment

414 A party who is dissatisfied with an assessment of an assessment officer who is not a judge may, within 10 days after the assessment, serve and file a notice of motion to request that a judge of the Federal Court review the award of costs.

Security for Costs

Marginal note:Application

415 Rules 416 to 418 apply, with such modifications as are necessary, to parties bringing and defending counterclaims and third party claims, to applicants and respondents in an application and to appellants and respondents in an appeal.

Marginal note:Where security available

• 416 (1) Where, on the motion of a defendant, it appears to the Court that

  • (a) the plaintiff is ordinarily resident outside Canada,

  • (b) the plaintiff is a corporation, an unincorporated association or a nominal plaintiff and there is reason to believe that the plaintiff would have insufficient assets in Canada available to pay the costs of the defendant if ordered to do so,

  • (c) the plaintiff has not provided an address in the statement of claim, or has provided an incorrect address therein, and has not satisfied the Court that the omission or misstatement was made innocently and without intention to deceive,

  • (d) the plaintiff has changed address during the course of the proceeding with a view to evading the consequences of the litigation,

  • (e) the plaintiff has another proceeding for the same relief pending elsewhere,

  • (f) the defendant has an order against the plaintiff for costs in the same or another proceeding that remain unpaid in whole or in part,

  • (g) there is reason to believe that the action is frivolous and vexatious and the plaintiff would have insufficient assets in Canada available to pay the costs of the defendant, if ordered to do so, or

  • (h) an Act of Parliament entitles the defendant to security for costs,

  the Court may order the plaintiff to give security for the defendant’s costs.

• Marginal note:Staging

  (2) The Court may order that security for the costs of a defendant be given in stages, as costs are incurred.

• Marginal note:Further steps

  (3) Unless the Court orders otherwise, until the security required by an order under subsection (1) or (2) has been given, the plaintiff may not take any further step in the action, other than an appeal from that order.

• Marginal note:Party temporarily resident in Canada

  (4) A party ordinarily resident outside Canada may be ordered to give security for costs, notwithstanding that the party may be temporarily resident in Canada.

• Marginal note:Voluntary payment into court

  (5) In the absence of an order under subsection (1), a plaintiff may, at any time after filing a statement of claim, pay an amount into court as security for the defendant’s costs and give notice of the payment to the defendant.

• Marginal note:Increase in security

  (6) The Court may, on the motion of a defendant, order a plaintiff who has paid an amount into court under subsection (5) to pay in an additional amount as security for the defendant’s costs.

Marginal note:Grounds for refusing security

417 The Court may refuse to order that security for costs be given under any of paragraphs 416(1)(a) to (g) if a plaintiff demonstrates impecuniosity and the Court is of the opinion that the case has merit.

Marginal note:How security to be given

418 Where a person is required under these Rules or an Act of Parliament to give security for costs or for any other purpose, unless otherwise ordered by the Court or required by that Act, the person may do so

• (a) by paying the required amount into court; or

• (b) by filing a bond for the required amount that has been approved by an order of the Court.

Offer to Settle

Marginal note:Application to other proceedings

419 Rules 420 and 421 apply, with such modifications as are necessary, to parties bringing and defending counterclaims and third party claims, to applicants and respondents in an application and to appellants and respondents in an appeal.

Marginal note:Consequences of failure to accept plaintiff’s offer

• 420 (1) Unless otherwise ordered by the Court and subject to subsection (3), where a plaintiff makes a written offer to settle and obtains a judgment as favourable or more favourable than the terms of the offer to settle, the plaintiff is entitled to party-and-party costs to the date of service of the offer and costs calculated at double that rate, but not double disbursements, after that date.

• Marginal note:Consequences of failure to accept defendant’s offer

  (2) Unless otherwise ordered by the Court and subject to subsection (3), where a defendant makes a written offer to settle,

  • (a) if the plaintiff obtains a judgment less favourable than the terms of the offer to settle, the plaintiff is entitled to party-and-party costs to the date of service of the offer and the defendant shall be entitled to costs calculated at double that rate, but not double disbursements, from that date to the date of judgment; or

  • (b) if the plaintiff fails to obtain judgment, the defendant is entitled to party-and-party costs to the date of the service of the offer and to costs calculated at double that rate, but not double disbursements, from that date to the date of judgment.

• Marginal note:Conditions

  (3) Subsections (1) and (2) do not apply unless the offer to settle

  • (a) is made at least 14 days before the commencement of the hearing or trial; and

  • (b) is not withdrawn and does not expire before the commencement of the hearing or trial.

Marginal note:Offers without costs

• 420.1 (1) In circumstances where a written offer to settle does not provide for the settlement of the issue of costs, if a party requests the Court to consider rule 420, the Court, in ascertaining whether the judgment granted is more or less favourable than the offer to settle, shall not have regard to costs awarded in the judgment or that would otherwise be awarded.

• Marginal note:Application to court

  (2) For greater certainty, if a written offer to settle that does not provide for the settlement of the issue of costs is accepted, a party to the offer may apply to the Court for an order determining costs.

Marginal note:Offer to contribute

421 Subsection 420(2) applies to a third party, or to one of two or more defendants who are alleged to be jointly and severally liable to the plaintiff in respect of a claim, who makes a written offer to other defendants or third parties to contribute toward a settlement of the claim.

Marginal note:Disclosure of offer to Court

422 No communication respecting an offer to settle or offer to contribute shall be made to the Court, other than to a case management judge or prothonotary assigned under rule 383(c) or to a judge or prothonotary at a pre-trial conference, until all questions of liability and the relief to be granted, other than costs, have been determined.

PART 12Enforcement of Orders

General

Marginal note:Definition of designated officer

422.1 In this Part, designated officer means an officer of the Registry designated by an order of the Court.

Marginal note:Where brought

423 All matters relating to the enforcement of orders shall be brought before the Federal Court.

Marginal note:Enforcement of order of tribunal

• 424 (1) Where under an Act of Parliament the Court is authorized to enforce an order of a tribunal and no other procedure is required by or under that Act, the order may be enforced under this Part.

• Marginal note:Filing of order

  (2) An order referred to in subsection (1) shall be filed together with a certificate from the tribunal, or an affidavit of a person authorized to file such an order, attesting to the authenticity of the order.

Marginal note:Enforcement of order for payment of money

425 An order for the payment of money may be enforced by

• (a) a writ of seizure and sale in Form 425A;

• (b) garnishment proceedings;

• (c) a charging order;

• (d) the appointment of a receiver; and

• (e) in respect of a person referred to in rule 429, a writ of sequestration in Form 425B.

Marginal note:Examinations

• 426 (1) A person who has obtained an order for the payment of money may

  • (a) conduct an oral examination of the judgment debtor or, if the judgment debtor is a corporation, of an officer of the corporation, as to the judgment debtor’s assets; and

  • (b) bring a motion for leave to conduct an oral examination of any other person who might have information regarding the judgement debtor’s assets.

• Marginal note:Service of notice of motion

  (2) In respect of a motion brought under paragraph (1)(b), the notice of motion shall be served on the judgement debtor and personally served on the person to be examined.

• Marginal note:Criteria for leave

  (3) On a motion brought under paragraph (1)(b), the Court may grant leave to conduct the oral examination and determine the time and manner of conducting the examination, if it is satisfied that

  • (a) the person to be examined may have information as to the judgment debtor‘s assets;

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

  • (c) it would be unfair not to allow the moving party to conduct the examination; and

  • (d) the examination will not cause undue delay, inconvenience or expense to the person to be examined or to the judgment debtor.

Marginal note:Possession of land

• 427 (1) An order for possession of real property or immoveables may be enforced by

  • (a) a writ of possession, in Form 427; and

  • (b) in respect of a person referred to in rule 429, an order of committal or a writ of sequestration, or both.

• Marginal note:Limitation

  (2) A writ of possession shall be issued only if the Court is satisfied that every person in possession of the whole or any part of the real property or immoveables has received notice sufficient to enable the person to apply to the Court for any relief to which the person may be entitled.

Marginal note:Delivery of personal property and movables

• 428 (1) An order for the delivery of personal property or movables that does not give the person against whom the order is made the alternative of paying an amount equal to the value of the personal property or movables may be enforced by

  • (a) a writ of delivery to recover the personal property or movables, in Form 428; and

  • (b) in respect of a person referred to in rule 429, an order of committal or a writ of sequestration, or both.

• Marginal note:Delivery of personal property or movables or amount equal to value

  (2) An order for the delivery of personal property or movables or the payment of an amount equal to their value may be enforced by

  • (a) a writ of delivery to recover the personal property or movables or an amount equal to their value, in Form 428; and

  • (b) in respect of a person referred to in rule 429, a writ of sequestration.

Marginal note:Writ of sequestration and order of committal

• 429 (1) Where a person who is required by an order to perform an act within a specified time refuses or neglects to do so within that time, or where a person disobeys an order to abstain from doing an act, the order may, with the leave of the Court, be enforced by

  • (a) a writ of sequestration against the property of the person;

  • (b) where the person is a corporation, a writ of sequestration against the property of any director or officer of the corporation; and

  • (c) subject to subsection (2), in respect of an order other than for payment of money, an order of committal against the person or, if the person is a corporation, against any director or officer of the corporation.

• Marginal note:Limitation

  (2) Where under an order requiring the delivery of personal property or movables a person who is liable to execution has the alternative of paying an amount equal to the value of the personal property or movables, the order shall not be enforced by an order of committal.

Marginal note:Personal service required

430 Unless the Court orders otherwise, an order shall not be enforced against a person under rule 429 unless the order has been personally served on the person.

Marginal note:Performance by other person

431 Where a person does not comply with an order to perform an act, without prejudice to the powers of the Court to punish the person for contempt, on motion, the Court may order that

• (a) the required act be performed by the person by whom the order was obtained or by another person appointed by the Court; and

• (b) the non-complying person pay the costs incurred in the performance of the act, ascertained in such a manner as the Court may direct, and that a writ of execution be issued against the non-complying person for those costs.