Federal Courts Rules (SOR/98-106)

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 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 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 hearing 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) Subject to subsections 213(4) and 369(2), a respondent to a motion shall serve a respondent’s motion record and file an electronic copy of or, subject to rule 72.4, three paper copies of the record no later than 2:00 p.m. on the day that is two days before the day fixed for 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: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.