Federal Courts Rules (SOR/98-106)

209 [Repealed, SOR/2021-246, s. 9]

Default Proceedings

Marginal note:Motion for default judgment

• 210 (1) Where a defendant fails to serve and file a statement of defence within the time set out in rule 204 or any other time fixed by an order of the Court, the plaintiff may bring a motion for judgment against the defendant on the statement of claim.

• Marginal note:Motion in writing

  (2) Subject to section 25 of the Crown Liability and Proceedings Act, a motion under subsection (1) may be brought ex parte and in accordance with rule 369.

• Marginal note:Affidavit evidence

  (3) A motion under subsection (1) shall be supported by affidavit evidence.

• Marginal note:Disposition of motion

  (4) On a motion under subsection (1), the Court may

  • (a) grant judgment;

  • (b) dismiss the action; or

  • (c) order that the action proceed to trial and that the plaintiff prove its case in such a manner as the Court may direct.

Marginal note:Service pursuant to order for substitutional service

211 Judgment shall not be given against a defendant who is in default where service of the statement of claim was effected pursuant to an order for substitutional service, unless the Court is satisfied that it is just to do so having regard to all the circumstances.

Marginal note:Service pursuant to Hague Convention

• 212 (1) Where a statement of claim was sent abroad for service on a defendant in a contracting state to the Hague Convention and the defendant has not filed a defence, judgment shall not be given under rule 210 unless the Court is satisfied that

  • (a) the statement of claim was

    • (i) served by a method prescribed by the law of the state in which service was made, or

    • (ii) delivered to the defendant or to the defendant’s residence by another method provided for in the Hague Convention; and

  • (b) the defendant has had sufficient time after the service or delivery to file a defence.

• Marginal note:Judgment

  (2) Notwithstanding subsection (1), the Court may give judgment under rule 210 if

  • (a) the statement of claim was sent by a method provided for in the Hague Convention;

  • (b) a period of not less than six months, or such longer period as the Court considers adequate in the circumstances, has elapsed since the day on which the statement of claim was sent; and

  • (c) no certificate under article 6 of the Hague Convention was received, and every reasonable effort was made to obtain such a certificate through the competent authorities of the state to which the statement of claim was sent.

• Marginal note:Interlocutory injunction or mandamus

  (3) This rule does not preclude the Court from making an order under rule 373 before service of the statement of claim.

Summary Judgment and Summary Trial

Motion and Service

Marginal note:Motion by a party

• 213 (1) A party may bring a motion for summary judgment or summary trial on all or some of the issues raised in the pleadings at any time after the defendant has filed a defence but before the time and place for trial have been fixed.

• Marginal note:Further motion

  (2) If a party brings a motion for summary judgment or summary trial, the party may not bring a further motion for either summary judgment or summary trial except with leave of the Court.

• Marginal note:Obligations of moving party

  (3) A motion for summary judgment or summary trial in an action may be brought by serving and filing a notice of motion and motion record at least 20 days before the day set out in the notice for the hearing of the motion.

• Marginal note:Obligations of responding party

  (4) A party served with a motion for summary judgment or summary trial shall serve and file a respondent’s motion record not later than 10 days before the day set out in the notice of motion for the hearing of the motion.

Summary Judgment

Marginal note:Facts and evidence required

214 A response to a motion for summary judgment shall not rely on what might be adduced as evidence at a later stage in the proceedings. It must set out specific facts and adduce the evidence showing that there is a genuine issue for trial.

Marginal note:If no genuine issue for trial

• 215 (1) If on a motion for summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant summary judgment accordingly.

• Marginal note:Genuine issue of amount or question of law

  (2) If the Court is satisfied that the only genuine issue is

  • (a) the amount to which the moving party is entitled, the Court may order a trial of that issue or grant summary judgment with a reference under rule 153 to determine the amount; or

  • (b) a question of law, the Court may determine the question and grant summary judgment accordingly.

• Marginal note:Powers of Court

  (3) If the Court is satisfied that there is a genuine issue of fact or law for trial with respect to a claim or a defence, the Court may

  • (a) nevertheless determine that issue by way of summary trial and make any order necessary for the conduct of the summary trial; or

  • (b) dismiss the motion in whole or in part and order that the action, or the issues in the action not disposed of by summary judgment, proceed to trial or that the action be conducted as a specially managed proceeding.

Summary Trial

Marginal note:Motion record for summary trial

• 216 (1) The motion record for a summary trial shall contain all of the evidence on which a party seeks to rely, including

  • (a) affidavits;

  • (b) admissions under rule 256;

  • (c) affidavits or statements of an expert witness prepared in accordance with subsection 258(5); and

  • (d) any part of the evidence that would be admissible under rules 288 and 289.

• Marginal note:Further affidavits or statements

  (2) No further affidavits or statements may be served, except

  • (a) in the case of the moving party, if their content is limited to evidence that would be admissible at trial as rebuttal evidence and they are served and filed at least 5 days before the day set out in the notice of motion for the hearing of the summary trial; or

  • (b) with leave of the Court.

• Marginal note:Conduct of summary trial

  (3) The Court may make any order required for the conduct of the summary trial, including an order requiring a deponent or an expert who has given a statement to attend for cross-examination before the Court.

• Marginal note:Adverse inference

  (4) The Court may draw an adverse inference if a party fails to cross-examine on an affidavit or to file responding or rebuttal evidence.

• Marginal note:Dismissal of motion

  (5) The Court shall dismiss the motion if

  • (a) the issues raised are not suitable for summary trial; or

  • (b) a summary trial would not assist in the efficient resolution of the action.

• Marginal note:Judgment generally or on issue

  (6) If the Court is satisfied that there is sufficient evidence for adjudication, regardless of the amounts involved, the complexities of the issues and the existence of conflicting evidence, the Court may grant judgment either generally or on an issue, unless the Court is of the opinion that it would be unjust to decide the issues on the motion.

• Marginal note:Order disposing of action

  (7) On granting judgment, the Court may make any order necessary for the disposition of the action, including an order

  • (a) directing a trial to determine the amount to which the moving party is entitled or a reference under rule 153 to determine that amount;

  • (b) imposing terms respecting the enforcement of the judgment; and

  • (c) awarding costs.

• Marginal note:Trial or specially managed proceeding

  (8) If the motion for summary trial is dismissed in whole or in part, the Court may order the action, or the issues in the action not disposed of by summary trial, to proceed to trial or order that the action be conducted as a specially managed proceeding.

General

Marginal note:Right of plaintiff who obtains judgment

217 A plaintiff who obtains judgment under rule 215 or 216 may proceed against the same defendant for any other relief and may proceed against any other defendant for the same or any other relief.

Marginal note:Powers of Court

218 If judgment under rule 215 or 216 is refused or is granted only in part, the Court may make an order specifying which material facts are not in dispute and defining the issues to be tried and may also make an order

• (a) for payment into court of all or part of the claim;

• (b) for security for costs; or

• (c) limiting the nature and scope of the examination for discovery to matters not covered by the affidavits filed on the motion for summary judgment or summary trial or by any cross-examination on them and providing for their use at trial in the same manner as an examination for discovery.

Marginal note:Stay of execution

219 On granting judgment under rule 215 or 216, the Court may order that enforcement of the judgment be stayed pending the determination of any other issue in the action or in a counterclaim or third party claim.

Questions of Law

Marginal note:Preliminary determination of question of law or admissibility

• 220 (1) A party may bring a motion before trial to request that the Court determine

  • (a) a question of law that may be relevant to an action;

  • (b) a question as to the admissibility of any document, exhibit or other evidence; or

  • (c) questions stated by the parties in the form of a special case before, or in lieu of, the trial of the action.

• Marginal note:Contents of determination

  (2) Where, on a motion under subsection (1), the Court orders that a question be determined, it shall

  • (a) give directions as to the case on which the question shall be argued;

  • (b) fix time limits for the filing and service of motion records by the parties; and

  • (c) fix a time and place for argument of the question.

• Marginal note:Determination final

  (3) A determination of a question referred to in subsection (1) is final and conclusive for the purposes of the action, subject to being varied on appeal.

Striking Out Pleadings

Marginal note:Motion to strike

• 221 (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it

  • (a) discloses no reasonable cause of action or defence, as the case may be,

  • (b) is immaterial or redundant,

  • (c) is scandalous, frivolous or vexatious,

  • (d) may prejudice or delay the fair trial of the action,

  • (e) constitutes a departure from a previous pleading, or

  • (f) is otherwise an abuse of the process of the Court,

  and may order the action be dismissed or judgment entered accordingly.

• Marginal note:Evidence

  (2) No evidence shall be heard on a motion for an order under paragraph (1)(a).

Discovery and Inspection

Discovery of Documents

Definition of document

• 222 (1) In rules 223 to 232 and 295, document includes an audio recording, a video recording, a film, a photograph, a chart, a graph, a map, a plan, a survey and a book of account, as well as data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device.

• Marginal note:Interpretation

  (2) For the purposes of rules 223 to 232 and 295, a document of a party is relevant if the party intends to rely on it or if the document tends to adversely affect the party’s case or to support another party’s case.

Marginal note:Time for service of affidavit of documents

• 223 (1) Every party shall serve an affidavit of documents on every other party within 30 days after the close of pleadings.

• Marginal note:Contents

  (2) An affidavit of documents shall be in Form 223 and shall contain

  • (a) separate lists and descriptions of all relevant documents that

    • (i) are in the possession, power or control of the party and for which no privilege is claimed,

    • (ii) are or were in the possession, power or control of the party and for which privilege is claimed,

    • (iii) were but are no longer in the possession, power or control of the party and for which no privilege is claimed, and

    • (iv) the party believes are in the possession, power or control of a person who is not a party to the action;

  • (b) a statement of the grounds for each claim of privilege in respect of a document;

  • (c) a description of how the party lost possession, power or control of any document and its current location, as far as the party can determine;

  • (d) the identity of each person referred to in subparagraph (a)(iv), including the person’s name and address, if known;

  • (e) a statement that the party is not aware of any relevant document, other than those that are listed in the affidavit or are or were in the possession, power or control of another party to the action; and

  • (f) an indication of the time and place at which the documents referred to in subparagraph (a)(i) may be inspected.

• Marginal note:Document within party’s power or control

  (3) For the purposes of subsection (2), a document shall be considered to be within a party’s power or control if

  • (a) the party is entitled to obtain the original document or a copy of it; and

  • (b) no adverse party is so entitled.

• Marginal note:Bundle of documents

  (4) A party may treat a bundle of documents as a single document for the purposes of an affidavit of documents if

  • (a) the documents are all of the same nature; and

  • (b) the bundle is described in sufficient detail to enable another party to clearly ascertain its contents.