Federal Courts Rules (SOR/98-106)

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 Schedule 1 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.

arbitral award

arbitral award means

• (a) an arbitral award to which subsection 5(2) of the Commercial Arbitration Act applies; or

• (b) a foreign arbitral award that may be recognized and enforced by a court in Canada in accordance with the United Nations Foreign Arbitral Awards Convention Act, or articles 35 and 36 of the Commercial Arbitration Code, set out in Schedule 1 to the Commercial Arbitration Act. (sentence arbitrale)

arbitration agreement

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 Schedule 1 to the Commercial Arbitration Act. (convention d’arbitrage)

creditor

creditor means the person in whose favour a foreign judgment is rendered or an arbitral award is made. (créancier)

debtor

debtor means the person against whom a foreign judgment is rendered or an arbitral award is made. (débiteur)

foreign judgment

foreign judgment means a judgment that may be registered in a court in Canada in accordance with

• (a) sections 80 to 89 of the Marine Liability Act; or

• (b) the Canada-United Kingdom Civil and Commercial Judgments Convention Act. (jugement étranger)

Marginal note:Form of application

327 An application for registration of a foreign judgment shall be in Form 327A and an application for recognition and enforcement of an arbitral award shall be in Form 327B.

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 debtor and may give any directions respecting the manner of service that it considers just.

Marginal note:Affidavit

• 329 (1) An affidavit filed in an application under rule 327 shall contain the following information:

  • (a) a statement confirming that the foreign judgment or arbitral award was not fully satisfied as at the filing of the application;

  • (b) a statement confirming that the debtor appeared in the original proceeding;

  • (c) an address in Canada for service on the creditor;

  • (d) the name and usual or last known address of the debtor;

  • (e) a statement indicating whether interest has accrued on the amount payable under the foreign judgment or arbitral award 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, if applicable, the day on which interest ceases to accrue;

  • (f) if applicable, the rate of exchange into Canadian currency prevailing on the day on which the foreign judgment was rendered or the arbitral award was made, as ascertained from a chartered bank in Canada;

  • (g) a statement confirming that, having made careful and full inquiries, the applicant knows of no impediment to registration of the foreign judgment or recognition and enforcement of the arbitral award; and

  • (h) a statement confirming that the foreign judgment or arbitral award 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:Documents

  (2) The affidavit shall be accompanied by an exemplified or certified copy of the foreign judgment or arbitral award, any reasons — including dissenting reasons — and, in the case of an arbitral award, a copy of the arbitration agreement under which the award was made.

• Marginal note:Additional requirement

  (3) If the debtor did not appear in the original proceeding, the affidavit referred to in subsection (1) shall be accompanied by an affidavit attesting that the document instituting the original proceeding was served on the debtor.

Marginal note:Other evidence

330 The Court may accept evidence on an application under rule 327 other than affidavit evidence.

Marginal note:Conversion to Canadian currency

331 Unless the Court orders otherwise, an amount payable under a foreign judgment or an arbitral award 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 judgment was rendered or the award was made.

Marginal note:Interest

• 332 (1) Any interest on the amount payable under a foreign judgment or an arbitral award that has accrued to the day on which the judgment is registered or the award is recognized shall be added to the amount payable under the judgment or award.

• Marginal note:Interest rate

  (2) Unless the Court orders otherwise, the amount payable under a foreign judgment that is registered or an arbitral award that is recognized as a result of an application under rule 327 bears interest from the day on which it is registered or recognized at the rate set out in section 3 of the Interest Act.

Marginal note:Service and translation of order

333 Unless the Court orders otherwise, a creditor who obtains an order for registration of a foreign judgment or recognition and enforcement of an arbitral award shall personally serve on the debtor the order, together with a translation of the order in the language of the judgment or award, and an affidavit attesting to the accuracy of the translation.

Marginal note:Action prior to enforcement or execution

334 Unless the Court orders otherwise, a foreign judgment that is registered or an arbitral award that is recognized as a result of an application under rule 327 shall not be executed or enforced until proof of service of the order for registration or recognition has been filed.

PART 5.1Class Proceedings

Application

Marginal note:Application

334.1 This Part applies to actions and applications other than applications for judicial review under section 28 of the Act.