Federal Courts Rules (SOR/98-106)

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.

Marginal note:Interim injunction

• 374 (1) A judge may grant an interim injunction on an ex parte motion for a period of not more than 14 days where the judge is satisfied

  • (a) in a case of urgency, that no notice is possible; or

  • (b) that to give notice would defeat the purpose of the motion.

• Marginal note:Extension

  (2) A motion to extend an interim injunction that was granted on an ex parte motion may be brought only on notice to every party affected by the injunction, unless the moving party can demonstrate that a party has been evading service or that there are other sufficient reasons to extend the interim injunction without notice to the party.

• Marginal note:Limitation

  (3) Where a motion to extend an interim injunction under subsection (2) is brought ex parte, the extension may be granted for a further period of not more than 14 days.

Appointment of a Receiver

Marginal note:Motion to appoint receiver

• 375 (1) On motion, a judge may appoint a receiver in any proceeding.

• Marginal note:Remuneration and security

  (2) An order under subsection (1) shall set out the remuneration to be paid to, and the amount of security to be given by, the receiver.

Marginal note:Approval of receiver’s accounts

376 A receiver appointed under rule 375 shall, by motion to the Court, seek approval of the receiver’s accounts on an annual basis.

Preservation of Property

Marginal note:Motion for order in respect of property

• 377 (1) On motion, the Court may make an order for the custody or preservation of property that is, or will be, the subject-matter of a proceeding or as to which a question may arise therein.

• Marginal note:Interim order

  (2) Rule 374 applies to interim orders for the custody or preservation of property referred to in subsection (1), with such modifications as the circumstances require.

Marginal note:Order to identify property

• 378 (1) An order under subsection 377(1) shall

  • (a) identify the property to be kept or preserved;

  • (b) state where, by whom, for how long and at whose cost the property is to be kept or preserved; and

  • (c) if the property is to be insured, state at whose expense it shall be insured.

• Marginal note:Scope of order

  (2) An order under subsection 377(1) shall be directed solely to the protection of the property in question.

Marginal note:Sale of perishable or deteriorating property

379 Where any property, other than real property or immoveables, that is the subject-matter of a proceeding or the subject of a question that may arise in a proceeding

• (a) is of a perishable nature,

• (b) is likely to deteriorate if kept, or

• (c) should for any other reason be sold without delay,

on motion, the Court may order the sale of the property, in such a manner and on such conditions as may be specified in the order.