Where Document Does Not Reach Person Served

 Even though a person has been served with a document in accordance with these Rules, the person may show on Application to set aside the consequences of default, for an extension of time or in support of a request for an adjournment, that the document

  • (a) did not come to his or her notice; or

  • (b) came to his or her notice only at some time later than when it was served or is deemed to have been served.

Validating Service

 Where a document has been served in a manner other than one authorized by these Rules or an order, the Court may make an order validating the service where the Court is satisfied that

  • (a) the document came to the notice of the person to be served; or

  • (b) the document was served in such a manner that it would have come to the notice of the person to be served, except for the person’s own attempts to evade service.

Proof of Service

Affidavit of Service

  •  (1) Service of a document may be proved by an affidavit of the person who served it in Form 4A or 4B as the case may be.

Counsel’s Admission or Acceptance

  • 4.06(2) Counsel’s written admission or acceptance of service is sufficient proof of service and need not be verified by affidavit.

Substituted Service

  •  (1) Where it appears to the Court that it is impractical for any reason to effect prompt service of a document in accordance with these Rules, the Court may make an order

    • (a) for substituted service; or

    • (b) dispensing with service, if the Court considers it necessary in the interests of justice.

  • 4.07(2) Where the Court makes an order for substituted service, it shall specify in the order when service in accordance with the order shall be deemed to be effective.

Rule 5 – Applications

  •  (1) In any criminal proceeding where an application or motion is authorized by statute or otherwise it shall be commenced by a Notice of Application in Form 1.

  • 5.01(2) A Notice of Application shall be filed with the Clerk’s office.

Third Party

  • 5.01(3) If it appears that the interest of a third party may be affected by a possible outcome, the applicant shall notify the third party of the Application as though they were a party to the Application.

  • 5.01(4) An applicant may apply ex parte to a judge for directions where there is uncertainty whether anyone not a party to an Application should be served.

Intervener

  • 5.01(5) Any person interested in a proceeding between other parties may, by leave of the Court, intervene therein upon such terms and conditions and with such rights and privileges as the Court may determine.

Content of Notice

  •  (1) Every Notice of Application in Form 1 shall state:

    • (a) the place and date of hearing;

    • (b) the precise relief sought;

    • (c) with reasonable particularity, the grounds to be argued including reference to any statutory provision or rule to be relied upon;

    • (d) the documentary, affidavit and other evidence to be used at the hearing of the Application; and

    • (e) whether any order is required abridging or extending the time for service or filing of the Notice of Application or supporting materials required under these Rules.

Service of the Notice

Generally

  •  (1) The Notice of Application shall be served on all parties to the proceeding together with all supporting evidence.

Third Party

  • 5.03(2) Where, at any point, it appears that a third party not a party to the proceedings has an interest in the possible outcome of an Application that is worthy of protection, the Court shall order the third party be served and given opportunity to be joined to the proceeding.

Minimum Notice Period

  • 5.03(3) Except where otherwise expressly provided by the Criminal Code or these Rules, the Notice of Application shall be served and filed with the Court at least 45 days before the date of the hearing of the Application or the date set for trial, which ever date comes first.

Materials for Use on Applications

Documents May be Filed as Part of Record

  •  (1) Any documents served by a party for use on an Application may be filed, together with proof of service, as part of the party’s application record and need not be filed separately if the record is filed within the time prescribed for filing the notice or other material.

Transcript of Evidence

  • 5.04(2) A party who intends to refer to a transcript of evidence at the hearing of an Application shall file a copy of the transcript with the Court at least 10 days before the hearing of the Application or the date set for trial whichever comes first in the case of the applicant and 5 days in the case of the respondent or intervener.

Pre-Hearing Brief

  • 5.04(3) The applicant shall file with the Clerk’s office a written brief, along with an electronic version, at least 10 days before the hearing of the Application. The responding party, including any intervener, shall file with the Clerk’s office a written brief, along with an electronic version, and a list of materials to be used at the hearing, at least 5 days before the hearing of the Application. A party shall also provide a written copy of their brief to the opposite party within the same time periods.

Contents of Pre-Hearing Brief

  • 5.04(4) The pre-hearing brief shall contain in consecutively numbered paragraphs:

    • (a) a succinct outline of the facts the party intends to establish,

    • (b) a concise statement of the issues to be dealt with by the Court,

    • (c) a concise statement of the principles of law on which the party relies and citation of relevant statutory provisions and leading authorities,

    • (d) a concise statement of the relief sought by the party,

    • (e) Schedule A consisting of a list of authorities in the order referred to in the brief, and

    • (f) Schedule B consisting of the text of all relevant provisions of Acts and Regulations (or copies of the relevant parts of the Act or Regulation may be filed and served with the brief).

The Hearing of Applications

Place of Hearing

 An Application shall be heard and determined by a judge of the Court in the judicial district in which the proceeding is being or is to be held.

Evidence on Applications

By Affidavit

  •  (1) Evidence on an Application may be given by affidavit in Form 2 and in accordance with Rule 3.06, unless the Criminal Code, or other applicable statute provides otherwise.

  • 5.06(2) The affidavits on which an Application is founded shall be served with the Notice of Application and shall be filed in the Clerk’s office.

  • 5.06(3) All affidavits to be used at the hearing in opposition to an Application or in reply shall be served on all the parties and filed in the Clerk’s office, no later than 15 days before the hearing.

By Examination of Witnesses

  • 5.06(4) Subject to the Criminal Code or any other applicable statute or rule of law, with leave of the presiding judge a witness may be examined or cross-examined upon the hearing of an Application and an affiant may be examined or cross-examined with respect to his or her affidavit and nothing in these rules shall be construed to affect the authority of a judge hearing an Application to receive evidence through the examination of witnesses.

By Agreed Statement of Facts

  • 5.06(5) A judge, before or upon the hearing of the Application, may dispense with the filing of any transcript(s) or affidavit(s) required by these Rules and act upon a statement of facts agreed upon by the parties.

By Written Argument

  • 5.06(6) The judge may, on such terms as he or she considers just, direct that argument on an Application be presented in writing rather than by personal appearance.

By Consent in Writing

  • 5.06(7) The respondent may consent in writing to the relief sought in an Application and a judge, satisfied that the relief sought by the applicant should be granted, may grant the Application without the attendance of the parties.

  • 5.06(8) The applicant must file with the Court a draft order and the respondent’s consent before the Application will be considered by a judge under Rule 5.06 (7).

 
Date modified: