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Federal Courts Rules (SOR/98-106)

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Regulations are current to 2022-01-12 and last amended on 2021-06-17. Previous Versions

PART 5Applications (continued)

General (continued)

Marginal note:Notice of appearance

 A respondent who intends to appear in respect of an application shall, within 10 days after being served with a notice of application, serve and file a notice of appearance in Form 305.

  • SOR/2013-18, s. 7

Marginal note:Applicant’s affidavits

 Within 30 days after issuance of a notice of application, an applicant shall serve its supporting affidavits and documentary exhibits and file proof of service. The affidavits and exhibits are deemed to be filed when the proof of service is filed in the Registry.

  • SOR/2007-301, s. 12(F)
  • SOR/2010-177, s. 3

Marginal note:Respondent’s affidavits

 Within 30 days after service of the applicant’s affidavits, a respondent shall serve its supporting affidavits and documentary exhibits and shall file proof of service. The affidavits and exhibits are deemed to be filed when the proof of service is filed in the Registry.

  • SOR/2007-301, s. 12(F)
  • SOR/2010-177, s. 3

Marginal note:Cross-examinations

 Cross-examination on affidavits must be completed by all parties within 20 days after the filing of the respondent’s affidavits or the expiration of the time for doing so, whichever is earlier.

Marginal note:Applicant’s record

  •  (1) An applicant shall serve and file the applicant’s record within 20 days after the day on which the parties’ cross-examinations are completed or within 20 days after the day on which the time for those cross-examinations is expired, whichever day is earlier.

  • Marginal note:Number of copies

    (1.1) The applicant shall file

    • (a) if the application is brought in the Federal Court, an electronic copy of or, subject to rule 72.4, three paper copies of the record; and

    • (b) if the application is brought in the Federal Court of Appeal, an electronic copy of or, subject to rule 72.4, five paper copies of the record.

  • Marginal note:Contents of applicant’s record

    (2) An applicant’s record shall contain, on consecutively numbered pages and in the following order,

    • (a) a table of contents giving the nature and date of each document in the record;

    • (b) the notice of application;

    • (c) any order in respect of which the application is made and any reasons, including dissenting reasons, given in respect of that order;

    • (d) each supporting affidavit and documentary exhibit;

    • (e) the transcript of any cross-examination on affidavits that the applicant has conducted;

    • (e.1) any material that has been certified by a tribunal and transmitted under Rule 318 that is to be used by the applicant at the hearing;

    • (f) the portions of any transcript of oral evidence before a tribunal that are to be used by the applicant at the hearing;

    • (g) a description of any physical exhibits to be used by the applicant at the hearing; and

    • (h) the applicant’s memorandum of fact and law.

  • Marginal note:Retention of original affidavits

    (3) If an original affidavit is not filed as part of an applicant’s record, it shall be retained by the applicant for one year after the expiry of all appeal periods.

  • SOR/2004-283, ss. 32, 33
  • SOR/2006-219, s. 10
  • SOR/2010-177, s. 4
  • SOR/2013-18, s. 8
  • SOR/2015-21, s. 18
  • SOR/2021-151, s. 10

Marginal note:Respondent’s record

  •  (1) A respondent to an application shall, within 20 days after service of the applicant’s record, serve and file the respondent’s record.

  • Marginal note:Number of copies

    (1.1) The respondent shall file

    • (a) if the application is brought in the Federal Court, an electronic copy of or, subject to rule 72.4, three paper copies of the record; and

    • (b) if the application is brought in the Federal Court of Appeal, an electronic copy of or, subject to rule 72.4, five paper copies of the record.

  • Marginal note:Contents of respondent’s record

    (2) The record of a respondent shall contain, on consecutively numbered pages and in the following order,

    • (a) a table of contents giving the nature and date of each document in the record;

    • (b) each supporting affidavit and documentary exhibit;

    • (c) the transcript of any cross-examination on affidavits that the respondent has conducted;

    • (c.1) any material that has been certified by a tribunal and transmitted under rule 318 that is to be used by the respondent at the hearing and that is not contained in the applicant’s record in accordance with paragraph 309(2)(e.1);

    • (d) the portions of any transcript of oral evidence before a tribunal that are to be used by the respondent at the hearing;

    • (e) a description of any physical exhibits to be used by the respondent at the hearing; and

    • (f) the respondent’s memorandum of fact and law.

  • Marginal note:Retention of original affidavits

    (3) If an original affidavit is not filed as part of a respondent’s record, it shall be retained by the respondent for one year after the expiry of all appeal periods.

Marginal note:Preparation by Registry

  •  (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

 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

 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

  •  (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

 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

 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

 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.

  • SOR/2013-18, s. 10

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

  •  (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

  •  (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.

  • SOR/2002-417, s. 19
  • SOR/2006-219, s. 11(F)

Marginal note:Material to be transmitted

  •  (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

 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

  •  (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

 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.

  • SOR/2004-283, s. 36

Marginal note:Directions on reference

 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

 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.

 
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