Federal Courts Rules (SOR/98-106)

Marginal note:Preparation by Registry

• 311 (1) On motion, the Court may order the Administrator to prepare a record on a party’s behalf.

• Marginal note:Documents to be provided

  (2) A party bringing a motion for an order under subsection (1) shall provide the Administrator with the documents referred to in subsection 309(2) or 310(2), as the case may be.

Marginal note:Additional steps

312 With leave of the Court, a party may

• (a) file affidavits additional to those provided for in rules 306 and 307;

• (b) conduct cross-examinations on affidavits additional to those provided for in rule 308; or

• (c) file a supplementary record.

Marginal note:Requirement to file additional material

313 Where the Court considers that the application records of the parties are incomplete, the Court may order that other material, including any portion of a transcript, be filed.

Marginal note:Requisition for hearing

• 314 (1) An applicant shall, within 10 days after service of the respondent’s record or the expiration of the time for doing so, whichever is earlier, serve and file a requisition, in Form 314, requesting that a date be set for the hearing of the application.

• Marginal note:Contents of requisition

  (2) A requisition referred to in subsection (1) shall

  • (a) include a statement that the requirements of subsection 309(1) have been satisfied and that any notice required under section 57 of the Act has been given;

  • (b) set out the place at which the hearing should be held;

  • (c) set out the maximum number of hours or days required for the hearing;

  • (d) list any dates within the following 90 days on which the parties are not available for a hearing;

  • (e) set out the name, address, telephone number and fax number of the solicitor for every party to the application or, where a party is not represented by a solicitor, the person’s name, address, telephone number and any fax number; and

  • (f) indicate whether the hearing will be in English or French, or partly in English and partly in French, and whether the materials in the requisition for hearing file will be in English or French, or partly in English and partly in French.

Marginal note:Pre-hearing conference

315 The Court may order that a conference be held in accordance with rules 258 to 267, with such modifications as are necessary.

Marginal note:Testimony regarding issue of fact

316 On motion, the Court may, in special circumstances, authorize a witness to testify in court in relation to an issue of fact raised in an application.

Exceptions to General Procedure

Marginal note:Ex parte proceedings

316.1 Despite rules 304, 306, 309 and 314, for a proceeding referred to in paragraph 300(b) that is brought ex parte,

• (a) the notice of application, the applicant’s record, affidavits and documentary exhibits and the requisition for hearing are not required to be served; and

• (b) the applicant’s record and the requisition for hearing must be filed at the time the notice of application is filed.

Marginal note:Summary application under Income Tax Act or Excise Tax Act

• 316.2 (1) Except for rule 359, the procedures set out in Part 7 apply, with any modifications that are required, to a summary application brought under section 231.7 of the Income Tax Act or section 289.1 of the Excise Tax Act.

• Marginal note:Commencing the application

  (2) The application shall be commenced by a notice of summary application in Form 316.2.

Material in the Possession of a Tribunal

Marginal note:Material from tribunal

• 317 (1) A party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party by serving on the tribunal and filing a written request, identifying the material requested.

• Marginal note:Request in notice of application

  (2) An applicant may include a request under subsection (1) in its notice of application.

• Marginal note:Service of request

  (3) If an applicant does not include a request under subsection (1) in its notice of application, the applicant shall serve the request on the other parties.

Marginal note:Material to be transmitted

• 318 (1) Within 20 days after service of a request under rule 317, the tribunal shall transmit

  • (a) a certified copy of the requested material to the Registry and to the party making the request; or

  • (b) where the material cannot be reproduced, the original material to the Registry.

• Marginal note:Objection by tribunal

  (2) Where a tribunal or party objects to a request under rule 317, the tribunal or the party shall inform all parties and the Administrator, in writing, of the reasons for the objection.

• Marginal note:Directions as to procedure

  (3) The Court may give directions to the parties and to a tribunal as to the procedure for making submissions with respect to an objection under subsection (2).

• Marginal note:Order

  (4) The Court may, after hearing submissions with respect to an objection under subsection (2), order that a certified copy, or the original, of all or part of the material requested be forwarded to the Registry.

Marginal note:Return of material

319 Unless the Court directs otherwise, after an application has been heard, the Administrator shall return to a tribunal any original material received from it under rule 318.

References from a Tribunal

Definition of reference

• 320 (1) In rules 321 to 323, reference means a reference to the Court made by a tribunal or by the Attorney General of Canada under section 18.3 of the Act.

• Marginal note:Procedures on applications apply

  (2) Subject to rules 321 to 323, rules 309 to 311 apply to references.

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.