Acts and Regulations

Rule-37 - PROCEDURE ON MOTIONS

Table of contents
Full text
Current to 1 January 2024
MOTIONS AND APPLICATIONS
RULE 37
PROCEDURE ON MOTIONS
37.01Notice of Motion
A motion shall be made by
(a) Notice of Motion (Form 37A), or
(b) Notice of Preliminary Motion (Form 37B).
37.02Place and Date of Hearing of a Motion
Subject to Rule 37.02.1, a motion shall be made in the judicial district
(a) in which the proceeding was or will be commenced, or
(b) where the solicitor of record for a party has given an address for service,
on a date to be fixed by a judge in that district.
2023-8
37.02.1Notice of Motion – particular proceedings
2023-8
A Motion to Vary or Motion to Change a final order under the Divorce Act (Canada) or the Family Law Act, or a Consent Motion to Vary or Consent Motion to Change a final order under either of those Acts, shall be made in accordance with Rule 16.01(2) with the necessary modifications.
2023-8
37.03Content of Notice of Motion or Preliminary Motion
A Notice of Motion or Preliminary Motion shall
(a) state the precise order sought,
(b) state the grounds to be argued, including a reference to any statutory provision or rule to be relied on, and
(c) list the documentary evidence to be used at the hearing of the motion.
86-87
37.04Service of Notice of Motion or Preliminary Motion
Where Required
(1)Unless ordered otherwise, a Notice of Motion or Preliminary Motion and affidavits in support thereof shall be served on all parties to the proceeding and on any persons who would be affected by the order sought.
Where Not Required
(2)Where the nature of the motion or the circumstances of the case render service of the Notice of Motion or Preliminary Motion impractical or unnecessary, or where the delay necessary to effect such service might entail serious consequences, the court may make an order without notice.
(3)Where a case of extreme urgency exists, a motion and an order may be made without notice before the commencement of a proceeding upon the undertaking of the applicant to commence the proceeding forthwith.
Where Notice Ought to be Served
(4)Where the court is satisfied that the Notice of Motion or Preliminary Motion ought to be served on a person who has not been served and who may be affected by the order sought, the court may direct that the Notice of Motion or Preliminary Motion or any order made on the motion be served on that person in such manner as may be just.
Time for Service
(5)Where service of a Notice of Motion or Preliminary Motion is required, it shall be made at least 10 days before the date of the hearing.
90-20
37.05Record
At least 48 hours before the hearing of a motion, the party giving notice thereof shall file with the clerk a record for the use of the court consisting of
(a) an index,
(b) a copy of the Notice of Motion or Notice of Preliminary Motion, and
(c) a copy of all affidavits, including those of each adverse party, or other material to be used on the hearing.
90-20; 92-3
37.06Rescinding Orders Made Without Notice
(1)A person affected by an order made without notice to him, or a person who has failed to appear on a motion through accident, mistake or insufficient notice, may apply by Notice of Motion served within 10 days and returnable within 25 days after the order came to his attention, to have the order rescinded or varied.
(2)Where possible, a motion made under paragraph (1) shall be made to the judge who made the order.
85-5
37.07Where Motion Brought before Wrong Judge
Where a motion ought to have been brought before a judge other than the one before whom it is brought, it may be adjourned to the proper judge.
37.08Where Public May be Excluded
(1)A motion may be heard in the absence of the public where
(a) Repealed: 2018-77
(b) the order sought is consented to or unopposed,
(c) because of urgency, it is impractical to have the motion heard in public, or
(d) the proceeding relates to the estate or property of a person under disability.
(2)Subject to paragraph (1), the hearing of motions shall be open to the public unless the court is satisfied that the possibility of serious prejudice, injustice or hardship to any person outweighs the desirability of holding the hearing in public and endorses upon the Notice of Motion or Preliminary Motion leave for a hearing in the absence of the public.
(3)The court may order that publication of any matter connected with a motion heard in the absence of the public be prohibited.
2018-77
37.09Repealed
Repealed: 2018-77
2018-77
37.10Disposition of Motion
On the hearing of a motion, the court may allow or dismiss the motion or adjourn the hearing, with or without terms; or, in the alternative or in addition, may direct
(a) in a proper case, that the motion be converted into a motion for judgment,
(b) the trial of an issue with such directions or upon such terms as may be just, or
(c) where the proceeding is an action, that it be set down for trial forthwith or within a specified time, or, where the proceeding is an application, that it be heard at such time and place and upon such terms as may be just.
37.11Motions in a Complicated Action or Series of Actions
Where an action involves complicated issues or where there are two or more actions arising out of the same transaction, occurrence, or series of transactions or occurrences, involving similar issues, the Chief Justice of the Court of King’s Bench may direct that all motions in such action or actions be heard by a particular judge designated by him.
2022-86
37.12Prohibiting Motions Without Leave
On the hearing of a motion, where the court is satisfied that a party is attempting to delay the proceeding or add to the costs or otherwise abuse the process of the court by frivolous or vexatious motions, it may prohibit that party from bringing further motions in the proceeding without leave.
37.13Written Argument on Motions
On such terms as may be just, the court may direct that argument on a motion be presented in writing rather than on the personal appearance of counsel or parties.
37.14Application of Rule to Motions in Court of Appeal
This rule applies to motions in the Court of Appeal.