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RULE 29
APPLICATIONS

Analysis



Applications

29.01. (1) Unless the Court otherwise orders, an application in a proceeding commenced by an originating application (inter partes) or an originating application (ex parte) or an interlocutory application in a proceeding, shall be heard by

             (a)  the Court when sitting during the trial or pursuant to an order; or in any other case

             (b)  a judge sitting in chambers.

             (2)  When the Court orders, a proceeding commenced by statement of claim may be heard on application to a judge sitting in chambers.

             (3)  An application may be heard by the Court of Appeal when it is expressly authorized by a statute, rule or order of the Court.

1986 c42 Sch D rule 29.01; 70/91 Ss3&4; 9/18 s6

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Form, filing and issue of application

29.02. An application shall

             (a)  where it originates a proceeding, be in Form 5.02A (originating application - inter partes ) or 5.02B (originating application - ex parte ), as applicable; or

             (b)  where it is made in an existing proceeding, be in Form 29.02A (interlocutory application – inter partes ) or Form 29.02B (interlocutory application – ex parte ), as applicable.

             (2)  The application shall

             (a)  set out the nature of any claim being made or of any question sought to be determined;

             (b)  set out the relief or order claimed, but it shall not be necessary to claim for general or other relief or for costs; and

             (c)  have all of the following attached

                      (i)  a true copy of any affidavit to be used in support of the application, and

                     (ii)  a copy of any other material document, including any proposed order.

             (3)  The application shall be filed and issued by the Registrar before it is served or heard.

             (4)  An application may be amended pursuant to Rule 15.

             (5)  Each interlocutory application as well as each affidavit, memorandum or other document filed on or subsequent to the date of filing of an interlocutory application but in relation to that application shall have endorsed thereon immediately below the title of proceeding or at some convenient place, if there is no title of proceeding on the document, the following text box containing the information stipulated:

 

SUMMARY OF CURRENT DOCUMENT

Court File Number(s):

 

Date of Filing of Document:

 

Name of Filing Party or Person:

 

Application to which Document
being filed relates:

[e.g. Application of plaintiff for order for production of documents under rule 32.07]

Statement of purpose in filing:

[e.g. to support/oppose application; to seek directions, etc.]

Court Sub-File Number, if any:

 

1986 c42 Sch D rule 29.02; 139/04 s3; 93/05 s2; 97/17 s1

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Place of hearing of application

29.03. (1)Unless the Court otherwise orders, the place of hearing of an application shall be at the judicial centre where the proceeding was commenced.

             (2)  Where an application is filed and issued under this rule, the Registrar shall

             (a)  set a return date at which a judge may set a date for the hearing of the application; or

             (b)  where the application is made ex parte or is for an extension or abridgement of a period of time, schedule a date for the hearing of the application.

97/17 s1; 9/18 s7

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Ex parte applications

29.04. (1) An application may be made ex parte where

             (a)  under a statute or rule, notice is not required;

             (b)  the application is made before any party is served;

             (c)  the applicant is the only party;

             (d)  the application is made during the course of a trial or hearing; or

             (e)  the Court is satisfied that the delay caused by giving notice would or might entail serious mischief, or that notice is not necessary.

             (2)  [Rep by 97/17 s3]

1986 c42 Sch D rule 29.04; 97/17 s3

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Service of application

29.05. (1) An application and any supporting affidavit shall be served,

             (a)  where the application is inter partes , by serving the application and affidavit as provided by Rule 6 and rule 29.05(2); and

             (b)  where the application is ex parte , by filing the application and affidavit with the Court before the hearing.

             (2)  Where an application is to be served upon an opposing party or person, the application and any supporting affidavit shall be served

             (a)  when the application originates a proceeding, at least ten clear days before the return date;

             (b)  when the application originates a proceeding and is to be served on a party outside the jurisdiction, at least thirty clear days before the return date, unless otherwise ordered by the Court;

             (c)  when the application is made in an existing proceeding, at least two clear days before the return date; and

             (d)  when the application is only for an extension or abridgement of a period of time, on the day preceding the hearing of the application.

             (3)  The Court may, on the return date, do any one or more of the following

             (a)  set a time for the hearing of the application;

             (b)  amend a timeline set out in this rule;

             (c)  order that an application and any attached affidavit be served upon any party or person in such manner and at such time as it may direct, and may adjourn any hearing to permit the service;

             (d)  dispense with the service of an application and any attached affidavit on a party or person;

             (e)  adjourn, continue, discontinue or dismiss an application when any person, who ought to have been served, has not been served; or

             (f)  make any other order required to organize the application.

             (4)  The parties to an application may, before the return date, jointly request that a date be set for the hearing of the application by sending a written request to the Court, setting out

             (a)  an estimate of the time required for the hearing;

             (b)  dates the parties are available;

             (c)  the expected number of witnesses; and

             (d)  proposed filing dates for affidavits, memoranda, and any other supporting document required.

             (5)  The Registrar may, in consultation with a judge

             (a)  set a date for the hearing on the basis of the written request and notify the parties in writing that they need not appear on the return date; or

             (b)  refuse the written request and notify the parties that they must appear on the return date set.

1986 c42 Sch D rule 29.05; 36/14 s39; 97/17 s 4

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Service of other affidavits

29.06. (1) Subject to rule 29.06(3), an opposing party shall, before a hearing, serve on any applicant a copy of any affidavit to be used by the opposing party on an application,

             (a)  when the application originates a proceeding, at least two clear days; and

             (b)  when the application is made in an existing proceeding, at least one clear day.

             (2)  An applicant shall serve a copy of any affidavit, containing supplementary material to be used by the applicant on an application, on every opposing party before a hearing,

             (a)  when the application originates a proceeding, at least three clear days; and

             (b)  when the application is made in an existing proceeding, at least one clear day.

             (3)  An opposing party shall, before a hearing, serve on any applicant a copy of any affidavit prepared by the opposing party in reply to any supplementary affidavit,

             (a)  when the application originates a proceeding, at least one clear day; and

             (b)  where the hearing is made in an existing proceeding, at any time before or on the hearing.

             (4)  An affidavit, that is not served as provided by this rule, may only be used on a hearing with the leave of the Court which may be granted on such terms as are just.

1986 c42 Sch D rule 29.06

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Counterclaims and third party proceedings

29.07. A defendant may, with the leave of the Court, counterclaim or commence a third party proceeding in a proceeding commenced by an originating application (inter partes).

1986 c42 Sch D rule 29.07

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Filing of documents for use of the Court

29.08. (1) An applicant shall, as provided in rule 29.08(3), mail to or file with the Court the following documents for the use of the Court,

             (a)  a copy of any document served in accordance with rule 29.06(2); and 

             (b)  a memorandum listing any authority and the applicable provisions of any statute, regulation or rule that are to be relied upon by the applicant on the application.

             (2)  An opposing party shall, as provided in rule 29.08(3), mail to or file with the Court the following documents for the use of the Court,

             (a)  a copy of any affidavit or other material document to be used by him or her on the application; and

             (b)  a memorandum listing any authority and the applicable provisions of any statute, regulation or rule that are to be relied upon by the opposing party on the application.

             (3)  Unless the Court otherwise orders, the documents referred to in rules 29.08(1) and 29.08(2) shall be filed with the Court

             (a)  on a contested application, at least one clear day before the hearing; and

             (b)  on an ex parte application, not later than twelve o'clock noon of the day preceding the hearing.

             (4)  A copy of any document filed under rule 29.08(3) that is not in the possession of any opposing party, shall be served on that party not later than twelve o'clock noon of the day preceding the hearing.

1986 c42 Sch D rule 29.08; 36/14 s40; 97/17 s5

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Evidence on hearing of application

29.09. (1) Evidence on a hearing may be given

             (a)  by an affidavit or statutory declaration made pursuant to Rule 48;

             (b)  by a statement of facts agreed upon in writing by all the parties;

             (c)  with leave of the Court, by any witness in person; or

             (d)  by any evidence obtained on discovery and admissible under the applicable rule.

             (2)  Where there is or may be a dispute on a hearing as to the facts, the Court may, before or on the hearing, order that the application shall be heard on oral evidence, either alone or with any other form of evidence, and may give such other directions relating to any pre-hearing procedure and the conduct of the application as it considers just.

             (3)  The attendance of any witness and the production of any document on a hearing may be compelled by a subpoena as provided in rule 46.23 with any necessary modification.

             (4)  Rules 30 to 36 and 38 on discovery procedures shall, with any necessary modification, apply to an application.

1986 c42 Sch D rule 29.09; 111/10 s7

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Powers of court on hearing of application

29.10. On a hearing of an application, the Court may on such terms as it thinks just,

             (a)  summarily dispose of any cause of action or question arising on the application, and make such order as is just;

             (b)  appoint one or more independent experts under Rule 35;

             (c)  adjourn the application from time to time, either to a particular date or generally, and when the hearing is adjourned generally, any party may apply to have it heard on a particular date;

             (d)  adjourn or transfer the hearing from chambers into Court or from Court into chambers;

             (e)  notwithstanding rule 5.02, order the application to be continued in Court as if the proceeding had begun by a statement of claim and order the application and affidavits to stand as pleadings, with liberty to any party to amend or add thereto or apply for particulars thereof, and to give any other direction as is applicable;

             (f)  make such order as is deemed necessary to secure an early hearing or trial, either at the place named for the hearing or trial or any other convenient place; or

             (g)  exercise such jurisdiction and grant any other order as it deems just.

1986 c42 Sch D rule 29.10

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Proceeding in absence of party failing to attend

29.11. (1) When a party fails to attend on a return date, the hearing of the application, or on any adjournment of the hearing after being served with an application, the Court may proceed in the party's absence.

             (2)  A party who has failed to appear on an application through accident, mistake, insufficient notice or other just cause may, within ten days from the time when the order granted on the application comes to that party's attention, apply to set aside or vary the order and the Court may do so on such terms as it thinks just.

1986 c42 Sch D rule 29.11; 97/17 s 6

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Failure to prosecute application, etc., with dispatch

29.12. (1) Where a party fails to comply with any order or direction of the Court as to the conduct of an application or fails to prosecute or oppose an application with due dispatch, the Court may order the application to be dismissed or granted or make such other order as is just.

             (2)  Rule 29.12(1) shall, with any necessary modification, apply in relation to any counterclaim or third party proceeding under rule 29.07.

             (3)  Where an application has been dismissed or granted under rules 29.12(1) and 29.12(2), the Court may allow the application to be reheard upon such terms as it thinks just.

1986 c42 Sch D rule 29.12

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Setting aside order

29.13. The Court may set aside or vary an order made ex parte on such terms as it thinks just.

1986 c42 Sch D rule 29.13

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Order for separate hearings

29.14. Where claims in respect of two or more causes of action are included in the same proceeding, or if two or more plaintiffs or defendants are parties to the same proceeding, and it appears to the Court that the joinder of the causes of action or parties may embarrass or delay the hearing or is otherwise inconvenient, the Court may order separate hearings or make such other order as is just.

1986 c42 Sch D rule 29.14

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Filing of documents

29.15. Any document used on a hearing of an application shall be filed with the Court before the order is issued.

36/14 s41

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Record of applications

29.16. The Registrar shall keep a record of all applications heard by the Court and shall list the applications in chronological order with the dates of hearing thereof, the names of counsel, the directions or orders given thereon, and such other matters of record as are necessary.

1986 c42 Sch D rule 29.16

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Rep. by 111/10 s8

29.17. [Rep. by 111/10 s8]

111/10 s8

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Application of rules to applications

29.18. The provisions of these rules shall, with any necessary modification, apply to any application.

1986 c42 Sch D rule 29.18