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Manitoba Regulation 553/88
Court of Queen's Bench Rules
This version consolidates the following amendments: 150/89; 25/90; 31/90; 146/90; 31/91; 155/91; 240/91; 12/92; 13/93; 14/94; 67/94; 127/94; 214/94; 98/95; 182/95; 42/96; 184/96; 185/96; 186/96; 201/96; 229/96; 26/97; 187/97; 228/97; 6/98; 160/98; 69/99; 120/99; 158/99; 159/99; 160/99; 66/2000; 50/2001; 32/2002; 121/2002; 151/2002; 204/2002; 205/2002; 43/2003; 167/2003; 104/2004; 106/2004; 120/2004; 188/2004; 207/2004; 11/2005; 12/2005; 48/2005; 92/2005; 93/2005; 120/2006; 199/2006; 67/2007; 76/2007.
Registered December 13, 1988
TABLE OF CONTENTS
Rule
PART I
GENERAL MATTERS
1 Citation, Application and Interpretation
2 Non-Compliance with the Rules
3 Time
4 Court Documents
PART II
PARTIES AND JOINDER
5 Joinder of Claims and Parties
6 Consolidation or Hearing Together
7 Parties Under Disability
8 Partnerships and Other Unincorporated Entities
9 Estates and Trusts
10 Representation Order
11 Transfer or Transmission of Interest
12 Class Proceedings
13 Intervention
PART III
COMMENCEMENT OF PROCEEDINGS
14 Commencement and Transfer of Proceedings
15 Representation by Lawyer
PART IV
SERVICE
16 Service of Documents
17 Service Outside Manitoba
18 Filing and Serving Statement of Defence
PART V
DISPOSITION WITHOUT TRIAL
19 Default Proceedings
20 Summary Judgment and Expedited Trial
20A Expedited Actions
21 Determination of an Issue Before Trial
22 Special Case
23 Discontinuance and Withdrawal
24 Dismissal of Action for Delay
PART VI
PLEADINGS
25 Pleadings in an Action
26 Amendment of Pleadings
27 Counterclaim
28 Crossclaim
29 Third Party Claim
PART VII
DISCOVERY
30 Discovery of Documents
30.1 Deemed undertaking
31 Examination for Discovery
32 Inspection of Property
33 Physical and Mental Examination of parties
PART VIII
EXAMINATION OUT OF COURT
34 Procedure on Oral Examinations
35 Procedure on Interrogatories
36 Taking Evidence Before Trial
PART IX
MOTIONS AND APPLICATIONS
37 Motions - Jurisdiction and Procedure
38 Applications - Jurisdiction and Procedure
39 Evidence on Motions and Applications
PART X
PRESERVATION OF RIGHTS IN PENDING LITIGATION
40 Interlocutory Injunction
41 Appointment of Receiver
42 Pending Litigation Orders
43 Interpleader
44 Interim Recovery of Personal Property
45 Interim Preservation of Property
46 Attachment and Garnishment Before Judgment
PART XI
PRE-TRIAL PROCEDURES
47 Place of Trial
48 Setting Down for Trial
49 Offer to Settle
50 Pre-Trial Conference
51 Admissions
PART XII
TRIALS
52 Trial Procedure
53 Evidence at Trial
PART XIII
REFERENCES
54 Directing a Reference
55 Procedure on Reference
PART XIV
COSTS
56 Security for Costs
57 Award and Fixing of Costs by Court
58 Assessment of Costs
PART XV
ORDERS
59 Orders
60 Enforcement of Orders
61 (Reserved)
PART XVI
APPEALS
62 Appeals to a judge
63 Stay Pending Appeal
PART XVII
PARTICULAR PROCEEDINGS
64 Mortgage Actions
65 Reciprocal Enforcement of United Kingdom Judgments
66 Partition Proceedings
67 Proceedings under The Infants' Estates Act
68 Proceedings for Judicial Review
69 Default Judgment Under The Hague Convention
70 Family Proceedings
71 Assessment of Lawyer's Bill
72 Appointment of Committees Passing of Accounts
73 Payment Into and Out of Court
74 Surrogate Practice Non-Contentious Proceedings
75 Surrogate Practice Contentious Proceedings
76 Small Claims Actions
77 Proceedings Under The Expropriation Act
PART XVIII
COMING INTO FORCE
78 Coming into force
TARIFF "A"
Tariff of Lawyer's Fees TARIFF "B"
Tariff of Disbursements
PART I
GENERAL MATTERS
CITATION, APPLICATION AND INTERPRETATION
CITATION
1.01(1) These Rules may be cited as the Queen's Bench Rules.
1.01(2) In these Rules,
(a) all the provisions identified by the same number to the left of the decimal point comprise a Rule (for example, Rule 1, which consists of rules 1.01 to 1.06);
(b) a provision identified by a number with a decimal point is a rule (for example, rule 1.01); and
(c) a rule may be subdivided into,
(i) subrules (for example, subrule 1.01(2)),
(ii) clauses (for example, clause 1.01(2)(c) or 2.02(a)), and
(iii) subclauses (for example, subclause 1.01(2)(c)(iii) or 7.01(c)(i)).
Alternative method of referring to rules
1.01(3) In a proceeding in a court, it is sufficient to refer to a rule or subdivision of a rule as "rule" followed by the number of the rule, subrule, clause or subclause (for example, rule 1.01, rule 1.01(2), rule 1.01(2)(c) or rule 1.01(2)(c)(iii)).
APPLICATION OF RULES
Civil proceedings in the court
1.02(1) These rules apply to all civil proceedings in the Court of Queen's Bench of Manitoba, except where a statute provides for some other procedure.
1.02(2) These rules apply to a proceeding, whenever commenced, except that where a proceeding is commenced before a rule comes into force, the court may, on motion, order that the proceeding, or a step in the proceeding, be conducted under the rules that governed immediately before the rule came into force.
1.02(3) Subject to subrule 1.02(2), the Queen's Bench Rules, Manitoba Regulation 115/86, are repealed.
M.R. 150/89
1.03 In these rules, unless the context requires otherwise,
"Act" means The Court of Queen's Bench Act; (« Loi »)
"action" means a civil proceeding, other than an application, that is commenced in the court by,
(a) a statement of claim,
(b) a counterclaim,
(c) a crossclaim,
(d) a third or subsequent party claim, or
(e) a petition; (« action »)
"appellant" means a person who brings an appeal; (« appelant »)
"applicant" means a person who makes an application; (« requérant »)
"application" means a civil proceeding, other than an action, that is commenced in the court by a notice of application; (« requête »)
"court" means the Court of Queen's Bench of Manitoba or any division thereof and includes a judge and a master; (« tribunal »)
"defendant" means a person against whom an action is commenced; (« défendeur »)
"disability", where used in respect to a person or party, means that the person or party is,
(a) a minor, or
(b) mentally incompetent or incapable of managing his or her affairs, whether or not so declared by a court; (« incapable »)
"discovery" means discovery of documents, examination for discovery, inspection of property and medical examination of a party as provided under Rules 30 to 33; (« enquête préalable »)
"hearing" means the hearing of an application, motion, reference, appeal or assessment of costs, or the trial of an action; (« audience »)
"holiday" means,
(a) any Saturday or Sunday,
(b) any special holiday proclaimed by the Governor General or the Lieutenant Governor,
(c) New Year's Day,
(d) Good Friday,
(e) Easter Monday,
(f) Victoria Day,
(g) Canada Day,
(h) Civic Holiday,
(i) Labour Day,
(j) Thanksgiving Day,
(k) Remembrance Day,
(l) Christmas Day,
(m) Boxing Day,
and where a holiday falls on a Saturday, the first preceding day which is not a holiday shall be deemed to be a holiday and where a holiday falls on a Sunday the first day following which is not a holiday shall be deemed to be a holiday; (« jour férié »)
"judge" means a judge of the court or any division thereof, and includes the Chief Justice of the Queen's Bench, the Associate Chief Justice of the Queen's Bench and the Associate Chief Justice of the Queen's Bench (Family Division); (« juge »)
"judgment" means a decision that finally disposes of all or part of an application or action on its merits or by consent of the parties, and includes a judgment in consequence of the default of a party; (« jugement »)
"lawyer" means a person who is entitled by law to practice as a barrister or solicitor in Manitoba or to appear before the court; (« avocat »)
"master" means a master of the court appointed under section 11 of the Act and includes the senior master; (« conseiller-maître »)
"motion" means a motion in a proceeding or an intended proceeding; (« motion »)
"moving party" means a person who makes a motion; (« auteur de la motion »)
"order" means an order of the court and includes a judgment; (« ordonnance »)
"originating process" means a document by which a proceeding is commenced under these rules and includes,
(a) a statement of claim,
(b) a notice of application,
(c) a petition,
(d) a counterclaim against a person who is not already a party to the main action,
(e) a third or subsequent party claim,
but does not include a counterclaim that is only against persons who are already parties to the main action, a crossclaim or a notice of motion; (« acte introductif d'instance »)
"personal representative" means the executor, executrix, administrator or administratrix of the estate of a deceased person; (« représentant personnel »)
"plaintiff" means a person who commences an action; (« demandeur »)
"preliminary motion" means a motion made before a proceeding is commenced; (« motion préliminaire »)
"proceeding" means an action or application; (« instance »)
"registrar" means a registrar of the court appointed under section 12 of the Act and includes a deputy registrar; (« registraire »)
"respondent" means a person against whom an application is made or an appeal or petition is brought, as the circumstances require; (« intimé »)
"responding party" means a person against whom a motion is made; (« partie intimée »)
"statute" includes a statute passed by the Parliament of Canada; (« loi »)
"substitute decision maker" means a vulnerable person's substitute decision maker for personal care or a substitute decision maker for property appointed under The Vulnerable Persons Living with a Mental Disability Act who has the power under clause 57(2)(f) or 92(2)(m) of that Act to commence, continue, settle or defend a claim or proceeding that relates to the vulnerable person. (« subrogé »)
M.R. 25/90; 185/96; 120/2004
INTERPRETATION
1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
1.04(2) Where matters are not provided for in these rules, the practice shall be determined by analogy to them.
1.04(3) Where a party to a proceeding is not represented by a lawyer but acts in person in accordance with subrule 15.01(2) or (3), anything these rules require or permit a lawyer to do shall or may be done by the party.
DATES OF ORDERS
1.04.1 In these rules,
(a) a reference to the date an order or judgment is "made", "given" or "granted" is deemed to be a reference to the date the order or judgment is pronounced; and
(b) a reference to the date an order or judgment is "entered" is deemed to be a reference to the date the order or judgment is signed.
M.R. 127/94
1.05 When making an order under these rules the court may impose such terms and give such directions as are just.
1.06 The forms prescribed by these Rules shall be used where applicable and with such variations as the circumstances require.
NON-COMPLIANCE WITH THE RULES
EFFECT OF NON-COMPLIANCE
2.01(1) A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court,
(a) may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute; or
(b) only where and as necessary in the interest of justice, may set aside the proceeding or a step, document or order in the proceeding in whole or in part.
2.01(2) The court shall not set aside an originating process on the ground that the proceeding should have been commenced by an originating process other than the one employed.
2.02 A motion to attack a proceeding or a step, document or order in a proceeding for irregularity shall not be made,
(a) after the expiry of a reasonable time after the moving party knows or ought reasonably to have known of the irregularity; or
(b) if the moving party has taken any further step in the proceeding after obtaining knowledge of the irregularity,
except with leave of the court.
COURT MAY DISPENSE WITH COMPLIANCE
2.03 The court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time.
TIME
3.01 In the computation of time under these rules or an order, except where a contrary intention appears,
(a) where there is a reference to a number of days between two events, they shall be counted by excluding the day on which the first event happens and including the day on which the second event happens, even if they are described as clear days or the words "at least" are used;
(b) where a period of less than seven days is prescribed, holidays shall not be counted;
(c) where the time for doing an act under these rules expires on a holiday, the act may be done on the next day that is not a holiday; and
(d) service of a document, other than an originating process, after 5 p.m., or at any time on a holiday, shall be deemed to have happened on the next day that is not a holiday.
EXTENSION OR ABRIDGMENT
3.02(1) The court may by order extend or abridge any time prescribed by these rules or an order, on such terms as are just.
3.02(2) A motion for an order extending time may be made before or after the expiration of the time prescribed.
3.02(3) A time prescribed by these rules for serving or filing a document may be extended or abridged by consent in writing.
WHEN PROCEEDINGS MAY BE HEARD
3.03(1) Proceedings may be heard throughout the year, except that during July and August and from December 24th to the following January 6th, both dates inclusive, no trial of an action shall be held except with leave of the court.
3.03(2) No motion, reference, examination, assessment of costs or other matter, except a motion made without notice, shall proceed before a judge, master or other officer in the absence of the opposite party until 15 minutes after the time fixed for it.
COURT DOCUMENTS
4.01 Every document in a proceeding shall be of good quality paper 216 millimetres by 279 millimetres in size and the text shall be printed, typewritten, handwritten or reproduced legibly on one side only with double spaces between the lines and a margin of approximately 40 millimetres on the left-hand side; dates, sums and numbers shall be expressed in figures.
4.02 Every document in a proceeding shall have a heading in Form 4A (actions) or Form 4B (applications) and shall have attached as the front cover a covering page in Form 4C.
CERTIFIED COPIES OF COURT DOCUMENTS
4.03 Subject to a statute, order and Rule 4.09 ("B" files), any person may inspect a document in the court file and on payment of the prescribed fee the registrar shall provide a copy or certified copy of the document.
4.04 Where these rules require notice to be given, it shall be given in writing.
ISSUING AND FILING OF DOCUMENTS
Issuing and filing originating process
4.05(1) An originating process may be issued and filed by delivering or mailing the original copy to the centre in which proceedings are to be commenced, accompanied by the prescribed fee.
4.05(2) Any document may be filed by delivering or mailing it to the centre where the court file is located, accompanied by the prescribed fee.
Date of filing where delivered or mailed
4.05(3) Where a document is filed by delivery or mail, the date on the court's filing stamp on the document shall be deemed to be the date of its filing, unless the court orders otherwise.
Document delivered or mailed but not received
4.05(4) Where a centre has no record of the receipt of a document alleged to have been delivered or mailed, the document shall be deemed not to have been issued or filed, unless the court orders otherwise.
TRANSMISSION OF DOCUMENTS
4.06(1) Where documents filed with the court or exhibits in the custody of an officer are required for use at another centre, the registrar shall, on order of the court, send them to the registrar at the other centre.
4.06(2) Documents or exhibits sent to a centre under subrule (1) shall, as soon as they have served their purpose, be returned to the registrar at the centre from which they were sent.
AFFIDAVITS
4.07(1) An affidavit used in a proceeding shall,
(a) be in Form 4D;
(b) be expressed in the first person;
(c) state the full name of the deponent and, if the deponent is a party or a lawyer, officer, director, member or employee of a party, shall state that fact;
(d) be divided into paragraphs, numbered consecutively, with each paragraph being confined as far as possible to a particular statement of fact; and
(e) be signed by the deponent and sworn or affirmed before a person authorized to administer oaths or affirmations.
4.07(2) An affidavit shall be confined to the statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except where these rules provide otherwise.
4.07(3) An exhibit that is referred to in an affidavit shall be marked as such by the person taking the affidavit and where the exhibit,
(a) is referred to as being attached to the affidavit, it shall be attached to and filed with the affidavit;
(b) is referred to as being produced and shown to the deponent, it shall not be attached to the affidavit or filed with it, but shall be left with the registrar for the use of the court, and on the disposition of the matter in respect of which the affidavit was filed, the exhibit shall be returned to the lawyer or party who filed the affidavit, unless the court orders otherwise; and
(c) is a document, a copy shall be served with the affidavit, unless it is impractical to do so.
4.07(4) Where an affidavit is made by two or more deponents, there shall be a separate jurat for each deponent, unless all the deponents make the affidavit before the same person at the same time, in which case one jurat containing the words "Severally sworn (or affirmed) before me..." may be used.
4.07(5) Where these rules require an affidavit to be made by a party that is a corporation, the affidavit may be made for the corporation by an officer, director or employee of the corporation.
For a partnership, sole proprietorship or association
4.07(6) Where these rules require an affidavit to be made by a party that is a partnership, sole proprietorship or association, the affidavit may be made for the partnership, sole proprietorship or association by a partner, proprietor, member or employee.
4.07(7) Where it appears to a person taking an affidavit that the deponent is incapable of writing his or her name, the person shall certify in the jurat that the affidavit was read in the person's presence to the deponent, that the deponent indicated his or her understanding of it, and that the deponent placed his or her mark on it in the presence of the person taking the affidavit.
By a person who does not understand the language
4.07(8) Where it appears to a person taking an affidavit that the deponent does not understand the language used in the affidavit, the person shall certify in the jurat that the affidavit was interpreted to the deponent in the person's presence by an interpreter, named in the jurat, who took an oath or made an affirmation before the person to interpret the affidavit correctly.
4.07(9) Any interlineation, erasure or other alteration in an affidavit shall be initialled by the person taking the affidavit and, unless so initialled, the affidavit shall not be used without leave of the presiding judge or officer.
4.08 Where a party is entitled to require the registrar to carry out a duty under these rules, the party may do so by filing a requisition (Form 4E) and paying the prescribed fee, if any.
"B" FILES
4.09(1) All documents filed or deposited with the court in connection with a case conference (Rule 20A), pre-trial conference (Rule 50 or Rule 70.26), case management conference (Rule 70.24) or judicially assisted dispute resolution conference shall be kept in a separate court file known as a "B" file.
4.09(2) Access to the contents of the "B" file in a proceeding shall be restricted to the parties to that proceeding and their lawyers.
PART II
PARTIES AND JOINDER
JOINDER OF CLAIMS AND PARTIES
JOINDER OF CLAIMS
5.01(1) A plaintiff or applicant may, in the same proceeding join any claims the plaintiff or applicant has against an opposite party.
5.01(2) A plaintiff or applicant may sue in different capacities, and a defendant or respondent may be sued in different capacities, in the same proceeding.
Multiple defendants or respondents
5.01(3) Where there is more than one defendant or respondent it is not necessary for each to have an interest in all the relief claimed or in each claim included in the proceeding.
JOINDER OF PARTIES
Multiple plaintiffs or applicants
5.02(1) Two or more persons who are represented by the same lawyer of record may join as plaintiffs or applicants in the same proceeding where,
(a) they assert, whether jointly, severally or in the alternative, any claims to relief arising out of the same transaction or occurrence, or series of transactions or occurrences;
(b) a common question of law or fact may arise in the proceeding; or
(c) it appears that their joining in the same proceeding may promote the convenient administration of justice.
Multiple defendants or respondents
5.02(2) Two or more persons may be joined as defendants or respondents where,
(a) there are asserted against them, whether jointly, severally or in the alternative, any claims to relief arising out of the same transaction or occurrence, or series of transactions or occurrences;
(b) a common question of law or fact may arise in the proceeding;
(c) there is doubt as to the person or persons from whom the plaintiff or applicant is entitled to relief;
(d) damage or loss is alleged to have been caused to the same plaintiff or applicant by more than one person, whether or not there is any factual connection between the several claims apart from the involvement of the plaintiff or applicant, and there is doubt as to the person or persons from whom the plaintiff or applicant may be entitled to relief or the respective amounts for which each may be liable; or
(e) it appears that their being joined in the same proceeding may promote the convenient administration of justice.
JOINDER OF NECESSARY PARTIES
5.03(1) Every person whose presence as a party is by law necessary to enable the court to adjudicate effectively and completely on the issues in a proceeding shall be joined as a party to the proceeding.
Claim by person jointly entitled
5.03(2) A plaintiff or applicant who claims relief to which any other person is jointly entitled with the plaintiff or applicant shall join, as a party to the proceeding, each person so entitled.
5.03(3) The court may order that any person who ought to have been joined as a party or whose presence as a party is necessary to enable the court to adjudicate effectively and completely on the issues in the proceedings shall be added as a party.
Party added as defendant or respondent
5.03(4) A person who is required to be joined as a party under subrule (1) or (2), and who does not consent to be joined as a plaintiff or applicant, shall be made a defendant or respondent.
Relief against joinder of a party
5.03(5) The court may by order relieve against the requirement of joinder under this rule.
MISJOINDER, NON-JOINDER AND PARTIES INCORRECTLY NAMED
Proceedings not to be defeated
5.04(1) No proceeding shall be defeated by reason of the misjoinder or non-joinder of any party and the court may, in a proceeding, determine the issues in dispute so far as they affect the rights of the parties to the proceeding and pronounce judgment without prejudice to the rights of all persons who are not parties.
Adding, deleting, or substituting parties
5.04(2) At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
5.04(3) No person shall be added to a proceeding as plaintiff or applicant unless the person's consent is filed.
5.05 Where it appears that the joinder of multiple claims or parties in the same proceeding may unduly complicate or delay the hearing or cause undue prejudice to a party, the court may,
(a) order separate hearings;
(b) order that one or more of the claims may be asserted in another proceeding;
(c) order that a party be compensated by costs for having to attend, or be relieved from attending, any part of a hearing in which the party has no interest;
(d) stay the proceeding against a defendant or respondent, pending the hearing of the proceeding against another defendant or respondent, on condition that the party against whom the proceeding is stayed is bound by the findings made at the hearing against the other defendant or respondent; or
(e) make such other order as is just.
CONSOLIDATION OR HEARING TOGETHER
WHERE ORDER MAY BE MADE
6.01(1) Where two or more proceedings are pending in which,
(a) there is a question of law or fact in common;
(b) the relief claimed arises out of the same transaction or occurrence or series of transactions or occurrences; or
(c) for any other reason an order ought to be made under this rule;
the court may order that,
(d) the proceedings be consolidated, or heard at the same time or one immediately after the other; or
(e) any of the proceedings be,
(i) stayed until after the determination of any other of them, or
(ii) asserted by way of counterclaim in any other of them.
6.01(2) In the order, the court may give such directions as are just to avoid unnecessary costs or delay.
6.02 Where the court has made an order that proceedings be heard either at the same time or one immediately after the other, the judge presiding at the hearing nevertheless has discretion to order otherwise.
PARTIES UNDER DISABILITY
7.01 A proceeding shall be commenced, continued or defended on behalf of,
(a) a minor, by a litigation guardian;
(b) a person, including a minor, who has been declared mentally incompetent or incapable of managing his or her own affairs, by the person's committee;
(c) a person, including a minor, who is mentally incompetent or incapable of managing his or her own affairs not so declared, by a litigation guardian;
(d) a person who, pursuant to The Vulnerable Persons Living with a Mental Disability Act has a substitute decision maker appointed with authority to commence, continue, settle or defend proceedings, by the substitute decision maker,
unless the Court orders or a statute provides otherwise.
M.R. 185/96
LITIGATION GUARDIAN OF PLAINTIFF OR APPLICANT
7.02(1) Any person not under disability may, without being appointed by the court, act as litigation guardian of a plaintiff or applicant who is under disability.
7.02(2) Every person, other than the Public Trustee, who acts as litigation guardian of a plaintiff or applicant who is under disability shall, before acting as a litigation guardian, file an affidavit in which the person,
(a) consents to act as litigation guardian in the proceeding;
(b) confirms that the person has given written authority to a named lawyer to act in the proceeding;
(c) states whether the person and the party under disability are ordinarily resident in Manitoba;
(d) sets out the person's relationship, if any, to the person under disability;
(e) states that the person has no interest in the proceeding adverse to that of the person under disability; and
(f) acknowledges having been informed of the person's liability to pay personally any costs awarded against the person or against the person under disability.
M.R. 14/94
LITIGATION GUARDIAN OF DEFENDANT OR RESPONDENT
7.03(1) No person shall act as litigation guardian of a defendant or respondent who is under disability until appointed by the court, except as provided in subrules (2) or (3).
Exception where minor interested in estate or trust
7.03(2) Where a proceeding is against a minor in respect of the minor's interest in an estate or trust, the Public Trustee shall act as litigation guardian of the minor defendant or respondent, unless the court orders otherwise.
Exception where defending counterclaim
7.03(3) The litigation guardian of a plaintiff may defend a counterclaim without being appointed by the court.
Motion by person seeking to act as litigation guardian
7.03(4) A person who seeks to act as litigation guardian of a defendant or respondent under disability shall move to be appointed by the court before acting as litigation guardian.
Motion by plaintiff or applicant to appoint litigation guardian
7.03(5) Where a defendant or respondent under disability has been served with an originating process and no motion has been made under subrule (4) for the appointment of a litigation guardian, a plaintiff or applicant, before taking any further step in the proceeding, shall move for an order appointing a litigation guardian for the party under disability.
7.03(6) At least 10 days before moving for the appointment of a litigation guardian, a plaintiff or applicant shall serve a request for appointment of litigation guardian (Form 7A) on the party under disability personally or by an alternative to personal service under rule 16.03.
7.03(7) The request may be served on the party under disability with the originating process.
7.03(8) A motion for the appointment of a litigation guardian may be made without notice to the party under disability.
7.03(9) A plaintiff or applicant who moves to appoint the Public Trustee as the litigation guardian shall serve the notice of motion and the material required by subrule (10) on the Public Trustee.
7.03(10) A person who moves for the appointment of a litigation guardian shall provide evidence on the motion concerning,
(a) the nature of the proceeding;
(b) the date on which the cause of action arose and the date on which the proceeding was commenced;
(c) service on the party under disability of the originating process and the request for appointment of litigation guardian;
(d) the nature and extent of the disability;
(e) in the case of a minor, the minor's birth date;
(f) whether the person under disability ordinarily resides in Manitoba; and,
except where the proposed litigation guardian is the Public Trustee, evidence,
(g) concerning the relationship, if any, of the proposed litigation guardian to the party under disability;
(h) whether the proposed litigation guardian ordinarily resides in Manitoba;
(i) that the proposed litigation guardian,
(i) consents to act as litigation guardian in the proceeding,
(ii) is a proper person to be appointed,
(iii) has no interest in the proceeding adverse to that of the party under disability, and
(iv) acknowledges having been informed that the litigation guardian may incur costs that may not be recovered from another party.
7.04 Unless there is some other person willing and able to act, the court shall appoint the Public Trustee as litigation guardian.
POWERS AND DUTIES OF LITIGATION GUARDIAN, COMMITTEE OR SUBSTITUTE DECISION MAKER
7.05(1) Where a party is under disability, anything that a party in a proceeding is required or authorized to do may be done by the party's litigation guardian, committee or substitute decision maker.
M.R. 185/96
7.05(2) A litigation guardian, committee or substitute decision maker shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests, including the commencement and conduct of a counterclaim, crossclaim or third party claim.
M.R. 185/96
7.05(3) A litigation guardian, committee or substitute decision maker other than the Public Trustee shall be represented by a lawyer and shall instruct the lawyer in the conduct of the proceeding.
M.R. 185/96
REMOVAL OR SUBSTITUTION OF LITIGATION GUARDIAN, COMMITTEE OR SUBSTITUTE DECISION MAKER
Continuation without litigation guardian
7.06(1) Where, in the course of a proceeding,
(a) a minor for whom a litigation guardian has been acting reaches the age of majority, the minor or the litigation guardian may, on filing an affidavit stating that the minor has reached the age of majority, obtain from the registar an order to continue (Form 7B) authorizing the minor to continue the proceeding without the litigation guardian; and
(b) a party under any other disability for whom a litigation guardian, committee or substitute decision maker has been acting ceases to be under disability, the party or the litigation guardian, committee or substitute decision maker may move without notice for an order to continue the proceeding without the litigation guardian, committee or substitute decision maker,
and the order shall be served forthwith on every other party and on the litigation guardian, committee or substitute decision maker.
M.R. 185/96
Removal of litigation guardian
7.06(2) Where it appears to the court that a litigation guardian is not acting in the best interests of the party under disability, the court may substitute the Public Trustee or any other person as litigation guardian.
NOTING PARTY UNDER DISABILITY IN DEFAULT
No default without leave of judge
7.07(1) Where a party is under disability at the time an originating process is served on the party, default may not be noted under rule 19 without leave of a judge.
M.R. 13/93
7.07(2) Notice of a motion for leave under subrule (1) shall be served,
(a) upon the litigation guardian, committee of the estate or substitute decision maker of the party under disability; and
(b) unless a judge orders otherwise, upon the Public Trustee.
M.R. 185/96
APPROVAL OF SETTLEMENT
No settlement of claim without judge's approval
7.08(1) No settlement of a claim made by or against a person under disability, whether or not a proceeding has been commenced in respect of the claim, is binding on the person without the approval of a judge.
No judgment on consent without judge's approval
7.08(2) Judgment may not be obtained on consent in favour of or against a party under disability without the approval of a judge.
Settlement where no proceeding commenced
7.08(3) Where an agreement for the settlement of a claim made by or against a person under disability is reached before a proceeding is commenced in respect of the claim, approval of a judge shall be obtained on an application to the court.
7.08(4) Notice of a motion or application for the approval of a judge under this rule shall, unless the judge orders otherwise, be served,
(a) upon the Public Trustee; and
(b) where the party under disability is a defendant or respondent, upon the litigation guardian, committee or substitute decision maker.
M.R. 185/96
Material required for approval
7.08(5) On a motion or application for the approval of a judge under this rule, there shall be served and filed with the notice of motion or notice of application,
(a) an affidavit of the litigation guardian, committee or substitute decision maker setting out the material facts and the reasons supporting the proposed settlement and the position of the litigation guardian, committee or substitute decision maker in respect of the settlement;
(b) an affidavit of the lawyer acting for the litigation guardian, committee or substitute decision maker setting out the lawyer's position in respect of the proposed settlement;
(c) where the person under disability is a minor who is over the age of sixteen years, the minor's consent in writing, unless the judge orders otherwise; and
(d) a copy of the minutes of the proposed settlement, if any.
M.R. 185/96
7.09 Any money payable to a person under disability under an order or a settlement shall be paid in such manner as directed by a judge.
PARTNERSHIPS AND
OTHER UNINCORPORATED ENTITIES
PARTNERSHIPS
8.01(1) A proceeding by or against two or more persons as partners may be commenced using the firm name of the partnership.
8.01(2) Subrule (1) extends to a proceeding between,
(a) a partnership and one or more of its partners; and
(b) partnerships having one or more partners in common.
8.02 Where a proceeding is commenced against a partnership using the firm name, the partnership's defence shall be delivered in the firm name and no person who admits having been a partner at any material time may defend the proceeding separately, except with leave of the court.
ENFORCEMENT AGAINST PARTNER
8.03(1) In a proceeding against a partnership using the firm name, a person other than a named party shall not be held personally liable as a partner unless served with the originating process together with a notice (Form 8A) stating that the party is served as a partner, except as provided in subrule 8.06(3).
8.03(2) The notice (Form 8A) shall be served within the time provided for the service of originating process.
8.03(3) A person served as provided in this rule shall be deemed to have been a partner at the material time unless the person defends the proceedings separately and denies having been a partner at the material time, in which case the person may also defend the proceeding on the merits.
8.04 Where a person defends a proceeding separately,
(a) with leave of the court under rule 8.02; or
(b) denying having been a partner at the material time,
that person becomes a party to the proceeding as a defendant or respondent and the title of the proceeding shall be amended accordingly.
DISCLOSURE OF PARTNERS
8.05(1) Where a proceeding is commenced by or against a partnership using the firm name, any other party may serve a notice requiring the partnership to disclose in writing forthwith the names and addresses of all the partners constituting the partnership at a time specified in the notice and, where the present address of a partner is unknown, the partnership shall disclose the last known address of that partner.
8.05(2) Where a partnership fails to comply with a notice under subrule (1), its claim or defence as against the party who served the notice may be dismissed or struck out, or the proceeding may be stayed.
ENFORCEMENT OF ORDER
8.06(1) An order against a partnership using the firm name may be enforced against the property of the partnership.
Against person served as partner
8.06(2) An order against a partnership using the firm name may also be enforced, where the order or a subsequent order so provides, against any person who was served as provided in rule 8.03 and who,
(a) under that rule, is deemed to have been a partner;
(b) has admitted having been a partner; or
(c) has been adjudged to have been a partner;
at the material time.
Against person not served as partner
8.06(3) Where, after an order has been made against a partnership using the firm name, the party obtaining it claims to be entitled to enforce it against any person alleged to be a partner other than a person who was served as provided in rule 8.03, the party may move before a judge for leave to do so, and the judge may grant leave if the liability of the person as a partner is not disputed or, if disputed, after the liability has been determined in such manner as the judge directs.
8.07 A notice under rule 8.03 and notice of motion under subrule 8.06(3) shall be served in the same manner as provided for service of an originating process.
SOLE PROPRIETORSHIP
Business name not proprietor's name
8.08(1) Where a person carries on business under a business name other than the person's own name, a proceeding may be commenced by or against that person using either or both names.
8.08(2) Rules 8.01 to 8.07 apply, with necessary modifications, to a proceeding by or against a sole proprietor using a business name as though the sole proprietor was a partner and the business name was the firm name of the partnership.
8.09 For the purpose of rule 8.10, "association" means an unincorporated organization of two or more persons, other than a partnership, operating under the name of the association for a common purpose or undertaking.
M.R. 150/89; 120/2006
PROCEEDING BY OR AGAINST AN ASSOCIATION
8.10 If an association has, pursuant to legislation, the legal capacity to sue or be sued or to be a party in a proceeding, the rules applicable to corporations with respect to practice and procedure apply to that association, with necessary changes.
8.11 and 8.12 Repealed.
ESTATES AND TRUSTS
PROCEEDINGS BY OR AGAINST PERSONAL REPRESENTATIVE OR TRUSTEE
9.01(1) A proceeding may be brought by or against a personal representative or trustee as representing an estate or trust and its beneficiaries without joining those beneficiaries as parties.
9.01(2) Subrule (1) does not apply to a proceeding,
(a) to interpret a will or trust;
(b) to establish or contest the validity of a will or trust;
(c) to remove or replace a personal representative or a trustee;
(d) against a personal representative or trustee for fraud or misconduct; or
(e) for the administration of an estate or the execution of a trust by the court.
Personal representative or trustee refusing to be joined
9.01(3) Where a proceeding is commenced by personal representatives or trustees, any personal representative or trustee who does not consent to be joined as a plaintiff or applicant shall be made a defendant or respondent.
Beneficiaries and others added by order
9.01(4) The court may order that any beneficiary, creditor or other interested person be made a party to a proceeding by or against a personal representative or trustee.
PROCEEDING AGAINST ESTATE WHERE THERE IS NO PERSONAL REPRESENTATIVE
Appointment of litigation guardian
9.02(1) If there is no personal representative of the estate of a deceased person in Manitoba, a person wishing to commence or continue proceedings against the estate may move on motion for the appointment of a litigation administrator for the estate.
9.02(2) A litigation administrator may take all proceedings that may be necessary for the protection of the interests of the estate, including proceedings by way of counterclaim, crossclaim or third party claim.
9.02(3) An order in a proceeding to which the public trustee or a litigation administrator is a party binds the estate of the deceased person, but has no effect on the public trustee or litigation administrator in his or her personal capacity, unless a judge orders otherwise.
REMEDIAL PROVISIONS
Proceedings before probate or administration
9.03(1) Where a proceeding is commenced by or against a person as executor or administrator before a grant of probate or administration has been made, and that person subsequently receives a grant of probate or administration, the proceeding shall be deemed to have been properly constituted from its commencement.
Proceeding by or against estate
9.03(2) A proceeding commenced by or against the estate of a deceased person,
(a) in the name of "the estate of A.B., deceased", "the personal representative of A.B., deceased", or any similar name; or
(b) in which the wrong person is named as the personal representative;
is not a nullity, and the court may order that the proceeding be continued by or against the proper personal representative of the deceased or against the public trustee or a litigation administrator appointed for the proceeding, and the title of the proceeding shall be amended accordingly.
Proceeding in the name of or against a deceased person
9.03(3) A proceeding commenced in the name of or against a person who has died prior to its commencement is not a nullity, and the court may order that the proceeding be continued by or against the proper personal representative of the deceased or against the public trustee or a litigation administrator appointed for the proceeding, and the title of the proceeding shall be amended accordingly.
Litigation administrator and personal representative
9.03(4) Where a litigation administrator is appointed for a deceased person who already has a personal representative, the appointment of the litigation administrator is not a nullity, and the court may order that the proceeding be continued against the proper personal representative, and the title of the proceeding shall be amended accordingly.
9.03(5) A proceeding by or against a deceased person or an estate shall not be treated as a nullity because it was not properly constituted, and the court may order that the proceeding be reconstituted by analogy to the provisions of this rule.
Stay of proceeding until properly constituted
9.03(6) No further step in a proceeding referred to in subrules (2), (3), (4) or (5) shall be taken until it is properly constituted and, unless properly constituted within a reasonable time, the court may, on motion, dismiss the proceeding or may make such other order as is just.
9.03(7) On making an order under this rule, the court may impose such terms as are just, including a term that a personal representative shall not be personally liable in respect of any part of the estate of a deceased person which the personal representative has been distributed or otherwise dealt with in good faith while not aware that a proceeding had been commenced against the deceased person or the estate.
REPRESENTATION ORDER
REPRESENTATION OF AN INTERESTED PERSON
Proceedings in which order may be made
10.01(1) In a proceeding concerning,
(a) the interpretation of a deed, will, agreement, contract or other instrument, or the interpretation of a statute, order in council, order, rule, regulation, by-law or resolution;
(b) the determination of a question arising in the administration of an estate or trust;
(c) the approval of a sale, purchase, settlement or other transaction;
(d) the approval of an arrangement under section 59 of The Trustee Act;
(e) the administration of the estate of a deceased person; or
(f) any other matter where it appears necessary or desirable;
a judge may by order appoint one or more persons to represent any person or class of persons, including;
(g) unborn persons; or
(h) persons who cannot readily be ascertained, found or served;
who have a present, future, contingent or unascertained interest in, or may be affected by, the proceeding.
M.R. 13/93
Order binds represented persons
10.01(2) Where an appointment is made under subrule (1), an order in the proceeding is binding upon a person or class so represented, subject to rule 10.03.
Settlement affecting persons who are not parties
10.01(3) Where in a proceeding referred to in subrule (1) a settlement is proposed and one or more persons interested in the settlement are not parties to the proceeding, but
(a) those persons are represented by a person appointed under subrule (1) who assents to the settlement; or
(b) there are parties to the proceeding having the same interest who assent to the settlement,
the court, if satisfied that,
(c) the settlement will benefit the interested persons; and
(d) service on the interested persons will cause undue expense or delay;
may by order approve the settlement on behalf of those persons.
10.01(4) A settlement approved under subrule (3) binds the interested persons who are not parties, subject to rule 10.03.
REPRESENTATION OF A DECEASED PERSON
10.02 Where the estate of a deceased person has an interest in a matter in issue in a proceeding and there is no personal representative, the court may order that,
(a) the proceeding continue in the absence of a person representing the estate; or
(b) a person be appointed to represent the estate in the proceeding;
and an order in the proceeding binds the estate of the deceased person as if the personal representative of the estate had been a party to the proceeding, subject to rule 10.03.
RELIEF FROM BINDING EFFECT OF ORDER
10.03 Where a person or estate is bound by an order under this Rule, a judge may order in the same or a subsequent proceeding that the person or estate not be bound where the judge is satisfied that,
(a) the order was obtained by fraud or non-disclosure of material facts;
(b) the interests of the person or estate were different from those represented at the hearing; or
(c) for some other sufficient reason the order should be set aside.
TRANSFER OR TRANSMISSION OF INTEREST
EFFECT OF TRANSFER OR TRANSMISSION
11.01 Where at any stage of a proceeding the interest or liability of a party is transferred or transmitted to another person by assignment, bankruptcy, death or other means, no further steps in the proceeding shall be taken until an order to continue the proceeding by or against the other person has been obtained.
ORDER TO CONTINUE
Order to continue on requisition
11.02(1) Where a transfer or transmission of the interest or liability of a party takes place while a proceeding is pending, any interested person may, on filing an affidavit verifying the transfer or transmission of interest or liability, obtain on requisition from the registrar an order to continue (Form 11A), without notice to any other party.
Service forthwith on other parties
11.02(2) An order to continue shall be served forthwith on every other party.
FAILURE TO OBTAIN ORDER TO CONTINUE ACTION
11.03 Where a transfer or transmission of the interest of a plaintiff takes place while an action is pending and no order to continue is obtained within a reasonable time, a defendant may move to have the action dismissed for delay, and rules 24.02 and 24.03 apply with necessary modifications.
M.R. 186/96
CLASS PROCEEDINGS
12.01(1) In this Rule, "Act" means The Class Proceedings Act.
12.01(2) Class proceedings shall be conducted in accordance with the Act.
12.01(3) A proceeding commenced under subsection 2(1) of the Act, a notice of motion for an order certifying one or more proceedings as a class proceeding, a certification order and all subsequent documents in a class proceeding shall have the following heading:
THE QUEEN'S BENCH
Centre
(Proceeding under The Class Proceedings Act)
INTERVENTION
LEAVE TO INTERVENE AS ADDED PARTY
13.01(1) Where a person who is not a party to a proceeding claims,
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in the proceeding; or
(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with a question in issue in the proceeding;
the person may move for leave to intervene as an added party.
13.01(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order for pleadings and discovery as is just.
LEAVE TO INTERVENE AS FRIEND OF THE COURT
13.02 Any person may, with leave of the court or at the invitation of the court and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.
PART III
COMMENCEMENT OF PROCEEDINGS
COMMENCEMENT AND TRANSFER OF PROCEEDINGS
HOW PROCEEDINGS COMMENCED
By issuing originating process
14.01(1) All civil proceedings shall be commenced by the issuing of an originating process by a registrar, except where a statute provides otherwise and as provided in subrule (2).
14.01(2) A counterclaim that is only against persons who are already parties to the main action, and a crossclaim, shall be commenced by the filing and serving of the pleading containing the counterclaim, or crossclaim, and the pleading need not be issued.
14.01(3) Where leave of the court is required to commence a proceeding, the leave shall be sought by preliminary motion.
14.01(4) A party may rely on a fact that occurs after the commencement of a proceeding, even though the fact gives rise to a new claim or defence, and, if necessary, may move to amend an originating process or pleading to allege the fact.
PROCEEDINGS BY ACTION AS GENERAL RULE
14.02 Every proceeding shall be by action, except where a statute or these rules provide otherwise.
ACTIONS - BY STATEMENT OF CLAIM
14.03 The originating process for the commencement of an action is a Statement of Claim (Form 14A) except as provided by,
(a) rule 70.03 (commencement of family proceedings);
(b) rule 27.01 (counterclaim against person not already a party);
(c) rule 29.01 (third party claim); and
(d) rule 29.11 (fourth and subsequent party claims).
WHERE STATEMENT OF CLAIM TO BE FILED
14.04 A statement of claim may be issued and filed at any administrative or judicial centre except as otherwise provided by statute and subject to the transfer provisions of this Rule.
APPLICATIONS - BY NOTICE OF APPLICATION
14.05(1) The originating process for the commencement of an application is a notice of application (Form 14B or such other form prescribed by these Rules).
Proceedings which may be commenced by application
14.05(2) A proceeding may be commenced by application,
(a) where authorized by these rules;
(b) where a statute authorizes an application, appeal or motion to the court and does not require the commencement of an action;
(c) where the relief claimed is for,
(i) the opinion, advice or direction of the court on a question affecting the rights of a person in respect of the administration of the estate of a deceased person or the execution of a trust,
(ii) an order directing executors, administrators or trustees to do or abstain from doing any particular act in respect of an estate or trust for which they are responsible,
(iii) the removal or replacement of one or more executors, administrators or trustees, or the fixing of their compensation,
(iv) the determination of rights which depend upon the interpretation of a deed, will, agreement, contract or other instrument, or upon the interpretation of a statute, order in council, order, rule, regulation, by-law or resolution,
(v) the declaration of an interest in or charge on land, including the nature and extent of the interest or charge or the boundaries of the land, or the settling of the priority of interests or charges, or
(vi) the approval of an arrangement or compromise or the approval of a purchase, sale, mortgage, lease or variation of trust; or
(d) in respect of any matter where it is unlikely there will be any material facts in dispute.
Injunction, declaration, receiver
14.05(3) Where the relief claimed in a proceeding includes an injunction, declaration or the appointment of a receiver, the proceedings shall be commenced by action; but the court may also grant such relief where it is ancillary to relief claimed in a proceeding properly commenced by application.
TITLE OF PROCEEDING
14.06(1) Every originating process shall contain a title of the proceeding setting out the names of all the parties and the capacity in which they are made parties, if other than in their personal capacity.
14.06(2) In an action other than by petition, the title of the proceeding shall name the party commencing the action as the plaintiff and the opposite party as the defendant.
14.06(3) In an action by petition, the title of the proceeding shall name the party commencing the action as the petitioner and the opposite party as the respondent.
14.06(4) In an application, the title of the proceeding shall name the party commencing the application as the applicant and the opposite party, if any, as the respondent and the notice of application shall state the statutory provision or rule, if any, under which the application is made.
14.07 Where an action is commenced by a statement of claim, the statement of claim shall be served within six months after it is issued.
TRANSFER OF ACTIONS
14.08(1) Where an action is commenced in a centre other than the judicial centre nearest the place,
(a) where the cause of action, in whole or in part, arose;
(b) where a defendant resided at the time the proceedings were commenced; or
(c) where a defendant carried on business at the time the proceedings were commenced;
a defendant may, by requisition, require the registrar at the center in which the action was commenced to transfer the action to the judicial centre nearest one of the places referred to in clauses (a), (b) or (c).
14.08(2) Subrule (1) does not apply,
(a) where the action has already been transferred to a judicial centre under subrules (1), (3) or (6); or
(b) with respect to the transfer of actions between centres within the City of Winnipeg.
14.08(3) Any party may, by requisition, and with the written consent of all other parties, require the registrar to transfer an action to any judicial centre agreed to by the parties.
14.08(4) The requisition under subrules (1) and (3) shall be in Form 4E and shall,
(a) name the judicial centre to which the action is to be transferred;
(b) if the requisition is pursuant to subrule (1), identify the clause under subrule (1) being relied upon and describe the location of the place in question; and
(c) be filed in the centre where the court file is located.
14.08(5) A requisition under subrule (1) shall be filed prior to the close of pleadings, and a copy thereof shall, upon filing, be served on all other parties.
14.08(6) Notwithstanding subrule (1), the court may on motion and at any time order that an action be transferred to any judicial centre which better serves the convenience of the parties.
Registrar to forward court file
14.08(7) Upon receipt of a requisition in compliance with subrules (1) or (3), or an order under subrule (6), the registrar shall forthwith forward the court file to the judicial centre named in the requisition or order.
14.08(8) Where an action is pending in a centre which is not a judicial centre and the registrar has not received a requistion or order under subrules (1), (3) or (6), the registrar shall, upon the filing of a notice of motion, transfer the action to the judicial centre named in the notice of motion.
14.08(9) Subsequent to the transfer of an action under this rule, all documents shall be filed in the judicial centre to which the action has been transferred.
14.09 Rule 14.08, excepting subrule (1) thereof, applies with necessary modification to the transfer of an application.
14.10 Repealed.
M.R. 146/90
DISCONTINUANCE OF ACTION WHERE DEFENDANT PAYS CLAIM
14.11 Where a plaintiff's claim is for a stated amount of money only and a defendant pays the amount of the claim and $300. for costs to the plaintiff or to the plaintiff's lawyer within the time prescribed for filing a statement of defence, the plaintiff shall discontinue the claim against that defendant or that defendant may upon motion to the court have the action dismissed.
M.R. 187/97
REPRESENTATION BY LAWYER
WHERE LAWYER IS REQUIRED
15.01(1) A party to a proceeding who is under disability or acts in a representative capacity shall be represented by a lawyer.
15.01(2) A corporation which is a party to a proceeding may be represented by a duly authorized officer of that corporation resident in Manitoba or by a lawyer.
15.01(3) Any other party to a proceeding may act in person or be represented by a lawyer.
CHANGE IN REPRESENTATION BY PARTY BEFORE TRIAL DATE SET
15.02(1) Before a trial date has been set, a party represented by a lawyer in a proceeding may change lawyers by serving on the lawyer, and on every other party, a notice of change of lawyer (Form 15A) giving the name, address and telephone number of the new lawyer.
M.R. 150/89; 43/2003
Notice of appointment of lawyer
15.02(2) Before a trial date has been set, a party acting in person may elect to be represented by a lawyer in a proceeding by serving on every other party a notice of appointment of lawyer (Form 15B) giving the name, address and telephone number of the lawyer.
M.R. 150/89; 43/2003
Notice of intention to act in person
15.02(3) Subject to subrule 15.01(1), before a trial date has been set, a party represented by a lawyer in a proceeding may elect to act in person by serving on the lawyer, and on every other party, a notice of intention to act in person (Form 15C) giving the address for service and telephone number of the party acting in person.
M.R. 150/89; 43/2003
15.02(4) A notice under this rule shall, together with proof of service, be filed without delay.
CHANGE IN REPRESENTATION BY PARTY AFTER TRIAL DATE SET
Motion to change representation
15.02.1(1) After a trial date has been set, a party who wishes to
(a) change his or her lawyer;
(b) be represented by a lawyer, if the party had previously acted in person; or
(c) act in person, if the party had previously been represented by a lawyer;
shall, by motion to a judge, request an order permitting the party to change representation.
15.02.1(2) A motion under subrule (1) shall be heard by the judge who presided at the pre-trial conference, unless the pre-trial judge is not available in which case another judge may hear the motion.
15.02.1(3) The motion under subrule (1) shall be served personally or by an alternative to personal service under rule 16.03 on
(a) every other party; and
(b) where a party is seeking to change lawyers or act in person if the party had previously been represented by a lawyer, the lawyer of record for the party.
15.02.1(4) The order permitting a party to change representation shall set out the name, address and telephone number of
(a) the new lawyer for the party, if the order permits the party to appoint a new lawyer; or
(b) the party, if the order permits the party to act in person.
MOTION BY LAWYER FOR REMOVAL
Motion for removal as lawyer of record
15.03(1) A lawyer may by motion request an order removing him or her as the lawyer of record in a proceeding.
15.03(1.1) A motion under subrule (1) shall be made
(a) to the court, if the motion is brought before a trial date is set; or
(b) to the judge who presided at the pre-trial conference, unless the pre-trial judge is not available in which case another judge may hear the motion, if the motion is brought after a trial date has been set but before the trial starts.
15.03(2) The motion under subrule (1) shall be served on the client and on every other party personally or by an alternative to personal service under rule 16.03 and, where the client's whereabouts are unknown, service upon the client may be effected by mailing a copy to the client at the client's last known address.
15.03(3) Where the party represented by the lawyer is under disability, the notice of motion shall be served on the party's litigation guardian, committee or substitute decision maker.
M.R. 185/96
Order to contain client's address
15.03(4) The order removing a lawyer from the record shall, unless otherwise ordered, set out the party's last known address.
15.04 A lawyer of record shall continue to represent a party in a proceeding until
(a) the party serves a notice in accordance with rule 15.02;
(b) an order permitting the party to change representation is made under rule 15.02.1; or
(c) an order removing the lawyer from the record is made under rule 15.03.
WHERE LAWYER HAS CEASED TO PRACTISE
15.05 Where a lawyer representing a party in a proceeding has ceased to practice law and,
(a) the party serves a notice in accordance with rule 15.02;
(b) an order permitting the party to change representation is made under rule 15.02.1; or
(c) an order removing the lawyer from the record is made under rule 15.03;
any other party may serve a document on the party in the manner prescribed under subrule 16.01(4)(b) or may by motion seek directions from the court.
PART IV
SERVICE
SERVICE OF DOCUMENTS
GENERAL RULES FOR MANNER OF SERVICE
16.01(1) An originating process shall be served personally as provided in rule 16.02 or by an alternative to personal service as provided in rule 16.03.
16.01(2) An originating process need not be served on a party who has filed a defence or an answer without being served.
16.01(3) No other document need be served personally, or by an alternative to personal service, unless these rules, a statute, or an order require personal service or an alternative to personal service.
16.01(4) Any document that is not required to be served personally or by an alternative to personal service,
(a) shall be served on a party who has a lawyer of record by serving the lawyer, and service may be made in a manner provided in rule 16.05;
(b) may be served on a party acting in person or on a person who is not a party, or on a party whose lawyer has ceased to practice with no notice of change of lawyer or of intention to act in person having been filed,
(i) by mailing a copy of the document to the last address for service provided by the party or person or, if no such address has been provided, to the party's or person's last known address, or
(ii) by personal service or by an alternative to personal service.
PERSONAL SERVICE
16.02(1) Where a document is to be served personally, the service shall be made,
Individual
(a) on an individual, other than a person under disability, by leaving a copy of the document with the individual;
Municipality
(b) on a municipal corporation, local government district, school board, or any other incorporated government entity, by leaving a copy of the document with the mayor, reeve, chairman, resident administrator, secretary, clerk, deputy clerk or other officer;
Corporation
(c) on any other corporation, other than one mentioned in clause (b), by leaving a copy of the document with an officer, director or agent of the corporation, or with a person at any place of business of the corporation who appears to be in control or management of the place of business;
Board or Commission
(d) on a board or commission, by leaving a copy of the document with a member or officer of the board or commission;
Person Outside Manitoba Carrying on Business in Manitoba
(e) on a person outside Manitoba who carries on business in Manitoba by leaving a copy of the document with anyone carrying on business in Manitoba for the person;
Crown in Right of Canada
(f) on Her Majesty the Queen in Right of Canada, in accordance with subsection 23(2) of the Crown Liability and Proceedings Act (Canada);
Crown in Right of Manitoba or the Attorney General of Manitoba
(g) on Her Majesty the Queen in Right of Manitoba or the Attorney General of Manitoba in accordance with section 14 of The Proceedings Against the Crown Act;
Minors
(h) on a minor, by leaving a copy of the document with the minor,
(i) where the minor resides with a parent or other person having the care or lawful custody of the minor, by leaving another copy of the document with the parent or other person, and
(ii) where the proceeding is in respect of the minor's interest in an estate or trust, by leaving a copy of the document with the guardian of the minor's estate, or if no such guardian has been appointed, by leaving a copy of the document bearing the name and address of the minor with the Public Trustee;
Mental Incompetent so Declared
(i) on a person who has been declared mentally incompetent or incapable of managing his or her affairs, by leaving a copy of the document
(i) with the person's committee if there is one, or
(ii) if the person has a substitute decision maker, with the person's substitute decision maker without regard to the specific powers granted to that substitute decision maker, and with the person;
Mental Incompetent Not so Declared
(j) on a person who is mentally incompetent or incapable of managing his or her affairs not so declared, by leaving a copy of the document
(i) with the person in whose care he or she resides, and
(ii) with the person who is mentally incompetent or incapable of managing his or her affairs, unless the person is under medical care and the attending physician is of the opinion that leaving a copy with the person would likely cause the person serious harm;
Partnership
(k) on a partnership, by leaving a copy of the document with any one or more of the partners or with a person at the principal place of business of the partnership who appears to be in control or management of the place of business; and where the partnership has been dissolved by leaving a copy with every person sought to be made liable;
Sole Proprietorship
(l) on a sole proprietorship, by leaving a copy of the document with the sole proprietor or with a person at the principal place of business of the sole proprietorship who appears to be in control or management of the place of business;
(m) repealed, M.R. 120/2006.
M.R. 185/96; 6/98; 120/2006
16.02(2) A person effecting personal service of a document need not produce the original document or have possession of it.
ALTERNATIVES TO PERSONAL SERVICE
16.03(1) Where service by an alternative to personal service is permitted, service shall be made in accordance with this rule.
Acceptance of service by lawyer
16.03(2) Service on a party who has a lawyer may be made by serving the lawyer if the lawyer endorses on the document or a copy of it an acceptance of service and the date of the acceptance.
16.03(3) By accepting service the lawyer shall be deemed to represent to the court that the lawyer has the authority of his or her client to accept service.
Service by mail to last known address
16.03(4) Service of a document may be made by sending a copy of the document to the last known address of the person to be served
(a) by registered mail or certified mail in which case service by mail under this clause is effective on the date the document was delivered to the person to be served as shown on the confirmation of delivery obtained from Canada Post Corporation; or
(b) by regular lettermail with an acknowledgment of receipt form (Form 16A) enclosed with the document in which case service by mail under this clause is effective
(i) only if the acknowledgment of receipt form bearing a signature that purports to be the signature of the person to be served is received by the sender, and
(ii) on the date on which the sender receives the acknowledgment of receipt form, signed as provided in subclause (b)(i).
16.03(5) Where an attempt is made to effect personal service at a person's place of residence and for any reason personal service cannot be effected, the document may be served by,
(a) leaving a copy, in a sealed envelope addressed to the person, at the place of residence with anyone who appears to be an adult member of the same household; and
(b) on the same day or the following day mailing another copy of the document to the person at the place of residence,
and service in this manner is effective on the fifth day after the document is mailed.
16.03(6) Where the head office, registered office or principal place of business of a corporation or, in the case of an extra-provincial corporation, the attorney for service in Manitoba, cannot be found at the last address recorded with the director appointed under The Corporations Act, service may be made on the corporation as provided in section 247 of The Corporations Act but such service will not be effective if there are reasonable grounds for believing that the corporation did not receive the document.
M.R. 6/98
SUBSTITUTED SERVICE OR DISPENSING WITH SERVICE
16.04(1) Where it appears to the court that it is impractical for any reason to effect prompt service of an originating process or any other document required to be served personally or by an alternative to personal service the court may make an order for substituted service or, where necessary in the interest of justice, may dispense with service.
16.04(2) In an order for substituted service, the court shall specify when service in accordance with the order is effective.
16.04(3) Where an order is made dispensing with service of a document, the document shall be deemed to have been served on the date the order is signed, for the purpose of the computation of time under these rules.
M.R. 127/94
SERVICE ON LAWYER OF RECORD
16.05(1) Service of a document on the lawyer of record of a party may be made by,
(a) mailing a copy to the lawyer's office;
(b) leaving a copy with a lawyer or employee in the lawyer's office;
(c) faxing a copy in accordance with subrules (2), (3) and (4) but, where service is made under this clause between 5 p.m. and midnight, it shall be deemed to have been made on the following day;
(d) by sending a copy to the lawyer's office by courier; or
(e) attaching a copy of the document to an e-mail message sent to the lawyer's e-mail address in accordance with subrule (6), but service under this clause is effective only if the lawyer being served provides by e-mail to the sender an acceptance of service and the date of the acceptance, and where e-mail acceptance is received between 5 p.m. and midnight, it shall be deemed to have been made on the following day.
M.R. 6/98; 50/2001; 43/2003
16.05(2) A document that is served by fax shall include a cover page indicating,
(a) the sender's name, address and telephone number;
(b) the name of the lawyer to be served;
(c) the date of the transmission;
(d) the total number of pages transmitted, including the cover page;
(e) the fax number of the sender; and
(f) the name and telephone number of a person to contact in the event of transmission problems.
M.R. 6/98
16.05(3) A document of 16 pages or more inclusive of the cover page and the backsheet may be served by fax only between 5 p.m. and 8 a.m. the following day, unless the party to be served gives prior consent.
M.R. 6/98
16.05(4) A trial record, appeal book or book of authorities may not be served by fax at any time unless the party to be served gives prior consent.
M.R. 6/98
16.05(5) Service of a document by sending a copy by courier under clause (1)(d) is effective on the second day following the day the courier was given the document, unless that second day is a holiday, in which case service is effective on the next day that is not a holiday.
16.05(6) The e-mail message to which a document served under clause (1)(e) is attached shall include
(a) the sender's name, address, telephone number and e-mail address;
(b) the date and time of transmission; and
(c) the name and telephone number of a person to contact in the event of transmission problems.
SERVICE BY MAIL
16.06 Where a document is to be served by mail, other than as an alternative to personal service,
(a) a copy of the document may be sent by regular lettermail in which case service is effective on the fifth day after the document is mailed; or
(b) a copy of the document may be sent by registered mail or certified mail in which case service is effective on the date the document was delivered to the person to be served as shown on the confirmation of delivery obtained from Canada Post Corporation.
WHERE DOCUMENT DOES NOT REACH PERSON SERVED
16.07 On a motion to set aside the consequences of default, for an extension of time or for an adjournment, a person may show that, even though served with a document in accordance with these rules, it did not come to the person's notice, or it did not come to the person's notice until some time later than when it was served or deemed to have been served.
16.08 Where a document has been served in an unauthorized or irregular manner, 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
16.09(1) Service of a document may be proved by an affidavit of the person who served it (Form 16B).
16.09(2) Personal service or service under subrule 16.03(6) of a document by a sheriff or sheriff's officer may be proved by a certificate of service (Form 16C).
Lawyer's admission or acceptance
16.09(3) A lawyer's written admission or acceptance of service is sufficient proof of service and need not be verified by affidavit.
16.09(4) It shall not be necessary to attach a copy of the document as an exhibit to either an affidavit or certificate of service, provided that the document is clearly described and identified in the affidavit or certificate.
PROOF OF SERVICE OF NOTICE OF CHANGE IN REPRESENTATION UNDER SUBRULE 15.02(1) OR (2)
16.10 In addition to proving service as set out in rule 16.09, service of a notice under subrule 15.02(1) or (2) may be proved by filing a letter with the registrar advising of the particulars of service, including
(a) the date the notice was sent by mail;
(b) the identity of the person who sent the notice;
(c) the identity of the person to whom the notice was sent; and
(d) the address where the notice was mailed.
M.R. 13/93
SERVICE OUTSIDE MANITOBA
17.01 In rules 17.02 to 17.06, "originating process" includes a counterclaim against only parties to the main action, and a crossclaim.
SERVICE OUTSIDE MANITOBA WITHOUT LEAVE
17.02 A party to a proceeding may, without a court order, be served outside Manitoba with an originating process,
Property in Manitoba
(a) in respect of real or personal property in Manitoba;
Administration of Estates
(b) in respect of the administration of the estate of a deceased person,
(i) in respect of real property in Manitoba, or
(ii) in respect of personal property, where the deceased person at the time of death was resident in Manitoba;
Interpretation of an Instrument
(c) in respect of the interpretation, rectification, enforcement or setting aside of a deed, will, contract, agreement or other instrument concerning,
(i) real or personal property in Manitoba, or
(ii) the personal property of a deceased person who, at the time of death, was resident in Manitoba;
Trustee Where Assets Include Property in Manitoba
(d) against a trustee in respect of the execution of a trust contained in a written instrument where the assets of the trust include real or personal property in Manitoba;
Mortgage on Property in Manitoba
(e) for foreclosure, sale, payment, possession or redemption in respect of a mortgage, charge or lien on real or personal property in Manitoba;
Contracts
(f) in respect of a contract, where
(i) the contract was made in whole or in part in Manitoba,
(ii) the contract provides that it is to be governed by or interpreted in accordance with the law of Manitoba,
(iii) the parties to the contract have agreed that the courts of Manitoba are to have jurisdiction over legal proceedings in respect of the contract, or
(iv) a breach of the contract has been committed in Manitoba, even though the breach was preceded or accompanied by a breach outside Manitoba that rendered impossible the performance of the part of the contract that ought to have been performed in Manitoba;
Tort Committed in Manitoba
(g) in respect of a tort committed in Manitoba;
Loss or Damage Sustained in Manitoba
(h) in respect of loss or damage sustained in Manitoba arising from any cause of action, wherever committed;
Injunctions
(i) for an injunction ordering a party to do, or refrain from doing, anything in Manitoba or affecting real or personal property in Manitoba;
Judgment
(j) in respect of a claim founded on a judgment;
Authorized by Statute
(k) in respect of a claim authorized by statute to be made against a person outside Manitoba by a proceeding commenced in Manitoba;
Necessary or Proper Party
(l) against a person outside Manitoba who is a necessary or proper party to a proceeding properly brought against another person served in Manitoba;
Person Resident or Carrying on Business in Manitoba
(m) against a person ordinarily resident or carrying on business in Manitoba;
Counterclaim, Crossclaim or Third Party Claim
(n) in respect of a counterclaim, crossclaim or third or subsequent party claim properly brought under these rules; or
Taxes
(o) by or on behalf of the Crown or a municipal corporation to recover money owing for taxes or other debts due to the Crown or the municipality.
Family Proceedings
(p) in a family proceeding within the meaning of section 41 of The Court of Queen's Bench Act.
M.R. 150/89; 31/91
SERVICE OUTSIDE MANITOBA WITH LEAVE
17.03(1) In any case to which rule 17.02 does not apply, the court may grant leave to serve an originating process outside Manitoba.
17.03(2) A motion for leave to serve a party outside Manitoba may be made without notice, and shall be supported by an affidavit or other evidence showing in which place or country the person is or probably may be found, and the grounds on which the motion is made.
ADDITIONAL REQUIREMENTS FOR SERVICE OUTSIDE MANITOBA
17.04(1) An originating process served outside Manitoba without leave shall contain a specific statement of the grounds and the provisions of rule 17.02 relied on in support of such service.
17.04(2) Where an originating process is served outside Manitoba with leave of the court, the originating process shall be served together with the order granting leave and any affidavit or other evidence used to obtain the order.
MANNER OF SERVICE OUTSIDE MANITOBA
Originating process or other document
17.05(1) An originating process or other document to be served outside Manitoba may be served in the manner provided by these rules for service in Manitoba, or in the manner prescribed by the law of the jurisdiction where service is made if that manner of service could reasonably be expected to come to the notice of the person to be served.
17.05(2) Service may be proved in the manner prescribed by these rules for proof of service in Manitoba or in the manner provided by the law of the jurisdiction where service was made.
SETTING ASIDE SERVICE OUTSIDE MANITOBA
17.06(1) A party who has been served with an originating process outside Manitoba may move, before filing or serving a defence,
(a) for an order setting aside the service and any order that authorized the service; or
(b) for an order staying the proceeding.
17.06(2) Where the court is satisfied that,
(a) service outside Manitoba is not authorized by these rules;
(b) an order granting leave to serve outside Manitoba should be set aside; or
(c) Manitoba is not a convenient forum for the hearing of the proceeding;
the court may make an order under subrule (1) or such other order as is just.
17.06(3) Where on a motion under subrule (1) the court concludes that service outside Manitoba is not authorized by these rules, but the case is one in which it would have been appropriate to grant leave to serve outside Manitoba under rule 17.03, the court may make an order validating the service.
17.06(4) A party served outside Manitoba shall not be held to have submitted to the jurisdiction of the court by serving a notice of motion pursuant to subrule (1) or by appearing on such a motion.
SERVICE OF DOCUMENTS OTHER THAN ORIGINATING PROCESS
17.07 No leave is required for service out of Manitoba of any document in a proceeding other than an originating process.
FILING AND SERVING STATEMENT OF DEFENCE
FILING AND SERVING STATEMENT OF DEFENCE
18.01 A statement of defence (Form 18A) shall be filed and served,
(a) within 20 days after service of the statement of claim, where the Defendant is served in Manitoba;
(b) within 40 days after service of the statement of claim, where the defendant is served elsewhere in Canada or in the United States of America; or
(c) within 60 days after service of the statement of claim, where the defendant is served anywhere else;
except as provided in subrules 19.01(5) or 27.04(2).
PART V
DISPOSITION WITHOUT TRIAL
DEFAULT PROCEEDINGS
NOTING DEFAULT
19.01(1) Subject to subrule (4), where a defendant fails to file a statement of defence within the prescribed time, the plaintiff may, on filing proof of service of the statement of claim, require the registrar to note the defendant in default.
M.R. 13/93
19.01(2) Where the statement of defence of a defendant has been struck out,
(a) without leave to file another; or
(b) with leave to file another, and the defendant has failed to file another within the time allowed;
the plaintiff may, on filing a copy of the order striking out the statement of defence, require the registrar to note the defendant in default.
Noting of default by co-defendant
19.01(3) Where a plaintiff has failed to require the registrar to note a defendant in default, the court on motion with notice to the plaintiff, may order that any other defendant who has filed a statement of defence may require the registrar to note the other defendant in default.
No default without leave of judge
19.01(4) Where a defendant is under disability at the time an originating process is served, default may not be noted against the defendant without leave of a judge obtained on motion under rule 7.07.
M.R. 13/93
19.01(5) A defendant may file a statement of defence at any time before default is noted under this rule.
CONSEQUENCES OF NOTING DEFAULT
19.02(1) A defendant who has been noted in default,
(a) is deemed to admit the truth of all allegations of fact made in the statement of claim; and
(b) shall not file a statement of defence or take any other step in the action except,
(i) with leave of the court, or
(ii) with the consent of the plaintiff and any co-defendant who has obtained an order to note default under subrule 19.01(3).
19.02(2) Nothing in this rule shall prevent a defendant from moving to set aside the noting of default or any judgment obtained by default.
19.02(3) Notwithstanding the provisions of any other rule, where a defendant has been noted in default, any step in the action that requires the consent of a defendant may be taken without the consent of the defendant in default.
19.02(4) Notwithstanding the provisions of any other rule, a defendant who has been noted in default is not entitled to notice of any step in the action and need not be served with any document in the action, except where the court orders otherwise or where a party requires the personal attendance of the defendant, and except as provided in,
(a) subrule 26.05(2) (amended pleading);
(b) subrule 27.04(3) (counterclaim);
(c) subrule 28.04(2) crossclaim);
(d) subrule 29.11(2) (fourth or subsequent party claim);
(e) rule 54.08 (report on reference);
(f) subrule 54.10(2) (motion to oppose confirmation of report on reference);
(g) subrule 54.10(3) (motion to confirm report on reference);
(h) subrule 55.02(2) (notice of hearing for directions on reference);
(i) subrule 64.06(1) (notice of reference in action converted from foreclosure to sale);
(j) subrule 64.07(5) (notice to encumbrancers in mortgage action);
(k) subrule 64.07(11) (report on reference in mortgage action); and
(l) subrule 64.10(1) (notice of change of account).
SETTING ASIDE THE NOTING OF DEFAULT
19.03(1) The noting of default may be set aside by the court on such terms as are just.
19.03(2) Where a defendant files a statement of defence with a consent under clause 19.02(1)(b), the noting of default against the defendant shall be set aside by the registrar.
SIGNING DEFAULT JUDGMENT
19.04(1) Where a defendant has been noted in default, the plaintiff may require the registrar to sign judgment against the defendant in respect of a claim for,
(a) a debt or liquidated demand in money, including interest if claimed in the statement of claim (Form 19A);
(b) the recovery of possession of land (Form 19B);
(c) the recovery of possession of personal property (Form 19C); or
(d) foreclosure, sale or redemption of a mortgage (Form 19D).
Requisition for default judgment
19.04(2) Before the signing of default judgment, the plaintiff shall file with the registrar a requisition for default judgment (Form 19E).
Registrar may decline to sign default judgment
19.04(3) Where the registrar is uncertain,
(a) whether the claim comes within the class of cases for which default judgment may properly be signed; or
(b) of the amount or rate that is properly recoverable for prejudgment or postjudgment interest;
the registrar may decline to sign default judgment and the plaintiff may make a motion to the court or the registrar may obtain a judge's authorization for default judgment.
Where claim partially satisfied
19.04(4) Where the claim has been partially satisfied, the default judgment shall be confined to the remainder of the claim.
19.04(5) Where the registrar signs default judgment and the plaintiff has claimed postjudgment interest in the statement of claim at a rate other than the postjudgment rate pursuant to subsection 84(6) of The Court of Queen's Bench Act (permitting a special rate of postjudgment interest by agreement) the default judgment shall provide for postjudgment interest at the rate claimed.
M.R. 67/94
19.04(6) On signing a default judgment, the registrar shall fix the costs under Tariff A to which the plaintiff is entitled against the defendant in default and shall include the costs in the judgment unless,
(a) the judgment directs a reference; or
(b) the plaintiff states in the requisition that, due to special circumstances, costs are to be assessed;
in which case the judgment shall include costs to be determined on the reference or on assessment.
M.R. 150/89
MOTION FOR JUDGMENT
19.05(1) Where a defendant has been noted in default, the plaintiff may move before a judge for judgment against the defendant on the statement of claim in respect of any claim for which default judgment has not been signed.
19.05(2) A motion for judgment under subrule (1) shall be supported by evidence given by affidavit but, where the affidavit evidence is on information and belief, an adverse inference may be drawn, if appropriate, from the failure of a party to provide the evidence of persons having personal knowledge of the facts.
19.05(3) On a motion for judgment under subrule (1), the judge may grant judgment, dismiss the action or order that the action proceed to trial and that oral evidence be presented.
19.05(4) Where an action proceeds to trial, a motion for judgment on the statement of claim against a defendant noted in default may be made at the trial.
FACTS MUST ENTITLE PLAINTIFF TO JUDGMENT
19.06 A plaintiff is not entitled to judgment on a motion for judgment or at trial merely because the facts alleged in the statement of claim are deemed to be admitted, unless the facts entitle the plaintiff to judgment as a matter of law.
19.07 A judgment obtained against a defendant who has been noted in default does not prevent the plaintiff from proceeding against the same defendant for any other relief or against any other defendant for the same or any other relief.
SETTING ASIDE DEFAULT JUDGMENT
19.08(1) A judgment against a defendant who has been noted in default that is signed by the registrar or granted by the court on motion under rule 19.04 may be set aside or varied by the court on such terms as are just.
19.08(2) A judgment against a defendant who has been noted in default that is obtained on a motion for judgment on the statement of claim under rule 19.05 or that is obtained after trial, may be set aside or varied by a judge on such terms as are just.
19.08(3) On setting aside a judgment under subrule (1) or (2) the court or judge may also set aside the noting of default under rule 19.03.
APPLICATIONS TO COUNTERCLAIMS, CROSSCLAIMS AND THIRD PARTY CLAIMS
19.09 Rules 19.01 to 19.08 apply, with necessary modifications, to counterclaims, crossclaims and third party claims, subject to rules 28.07 (default of defence to crossclaim) and 29.07 (default of defence to third party claim).
SUMMARY JUDGMENT AND EXPEDITED TRIAL
MOTION FOR SUMMARY JUDGMENT
20.01(1) A plaintiff may, after the defendant has filed a statement of defence or served a notice of motion, and at any time prior to the action being set down for trial, move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim.
20.01(2) The plaintiff may move, without notice, for leave to serve a notice of motion for summary judgment together with the statement of claim, and leave may be given where special urgency is shown, subject to such directions as are just.
20.01(3) A defendant may, after filing and serving a statement of defence, and at any time prior to the action being set down for trial, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.
EVIDENCE ON MOTION
20.02(1) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest on the mere allegations or denials of the party's pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue for trial.
Failure to file affidavit in reply, etc.
20.02(2) The court may draw an adverse inference from the failure of a party to cross-examine on, or file affidavit evidence in reply to, an affidavit used on a motion under this Rule.
20.02(3) An affidavit for use on a motion under this Rule may be made on information and belief as provided in subrule 39.01(4), but on the hearing of the motion, an adverse inference may be drawn, if appropriate, from the failure of a party to provide the evidence of persons having personal knowledge of contested facts.
DISPOSITION OF MOTION
20.03(1) Where 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.
20.03(2) Where the court is satisfied that the only genuine issue is the amount to which the moving party is entitled, the court may order a trial of that issue or grant judgment with a reference to determine the amount.
Only genuine issue is question of law
20.03(3) Where the court is satisfied that the only genuine issue is a question of law, the court may determine the question and grant judgment accordingly.
20.03(4) Where the court decides there is a genuine issue with respect to a claim or defence, a judge may nevertheless grant judgment in favour of any party, either upon an issue or generally, unless
(a) the judge is unable on the whole of the evidence before the court on the motion to find the facts necessary to decide the questions of fact or law; or
(b) it would be unjust to decide the issues on the motion.
20.03(5) Where a motion for summary judgment is dismissed, either in whole or in part, a judge may order the action, or the issues in the action not disposed of by summary judgment, to proceed to trial in the ordinary way, but upon the request of any party, the judge may order an expedited trial under rule 20.06.
No further motion without leave
20.03(6) Where a motion for summary judgment is dismissed, the moving party may not make a further motion under rule 20.01 without leave of the court.
20.04 A plaintiff who obtains judgment under rule 20.03 may proceed against the same defendant for any other relief and against any other defendant for the same or any other relief.
IMPOSITION OF TERMS
20.05(1) Where an action is ordered to proceed to trial, in whole or in part, a judge may give such directions or impose such terms as are just, including an order for security for costs.
20.05(2) Where a party fails to comply with an order for security for costs, the court, on motion of the opposite party, may dismiss the action, strike out the statement of defence, or make such other order as is just.
20.05(3) Where on a motion under subrule (2) the statement of defence is struck out, the opposite party may require the registrar to note the defendant in default.
20.05(4) Where it appears that the enforcement of a summary judgment ought to be stayed pending the determination of any other issue in the action or a counterclaim, crossclaim or third party claim, the court may so order on such terms as are just.
EXPEDITED TRIAL
20.06(1) Notwithstanding that there may not have been a motion under rule 20.01, the judge may, on motion by any party, order the expedited trial of an action or an issue in an action, and may order,
(a) that the facts described in the order are not in dispute;
(b) that the pleadings be amended or closed within a fixed time;
(c) that motions be brought within a fixed time;
(d) that procedures for discovery be completed within a fixed time;
(e) that the nature and scope of discovery be limited and, where there has been a motion for summary judgment, that the discovery be limited to matters not covered by the affidavits filed on the motion and any cross-examination on them, and that the affidavits and cross-examinations may be used at trial in the same manner as an examination for discovery;
(f) that evidence be adduced by affidavit;
(g) that a pre-trial conference be held at a time and place to be fixed, at which any of the order in this subrule may be made; and
(h) that a pre-trial conference be dispensed with and the action be set down for trial.
20.06(2) On a motion under subrule (1) the court may make such other order as is just for the purpose of expediting the trial of an action.
Facts deemed to be established
20.06(3) At the trial, the facts ordered not to be in dispute, shall be deemed to be established and the trial shall be conducted accordingly, unless the trial judge orders otherwise.
20.06(4) A judge may, before or at trial, vary or set aside an order may under subrule (1).
20.06(5) This rule does not apply to an action to which rule 20A applies.
M.R. 184/96
APPLICATION TO COUNTERCLAIMS, CROSSCLAIMS AND THIRD PARTY CLAIMS
20.07 Rules 20.01 to 20.06 and Rule 20A apply with necessary modifications, to counterclaims, crossclaims, and third party claims.
M.R. 184/96
EXPEDITED ACTIONS
20A(1) In this rule,
"case conference judge" means the judge assigned to hold a case conference under this rule; (« juge chargé de la conference de cause »)
"trial co-ordinator" means a person assigned to be a trial co-ordinator for the purpose of this rule. (« coordonnateur des procès »)
M.R. 184/96; 229/96
Actions where procedure mandatory
20A(2) The procedure set out in this rule applies to an action where the relief claimed is a liquidated or unliquidated amount not exceeding $50,000. exclusive of interest and costs.
M.R. 184/96; 229/96
Actions which may be included or excluded from procedure
20A(3) A judge may
(a) upon motion made by a party to the action at any time after service of the statement of claim; or
(b) with the consent of the parties to the action;
order that
(c) with respect to an action other than an action referred to in subrule (2), the procedure set out in this rule shall apply; or
(d) with respect to an action referred to in subrule (2), the procedure set out in this rule shall not apply.
M.R. 184/96; 229/96
20A(4) Before making an order under subrule (3), the judge may consider any matters that he or she considers appropriate, including
(a) the nature of the action;
(b) the amount at issue in the action;
(c) the complexity of the issues involved in the action; and
(d) the likely expense of the action to the parties.
M.R. 184/96
20A(5) Every document in an action to which this rule applies shall have the following heading:
THE QUEEN'S BENCH _____________ CENTRE (Expedited Action - Rule 20A)
M.R. 184/96
20A(6) Within 21 days of the close of pleadings in an action to which this rule applies, the plaintiff shall
(a) obtain from the trial co-ordinator of the court a fixed date and time for a case conference with a case conference judge and the date must be within 60 days after the date of the close of pleadings; and
(b) give at least seven days notice of the date and time of the case conference, in writing, to each lawyer of record of a party and to each party not represented by a lawyer.
M.R. 184/96; 229/96; 120/99
Case conference at request of a party
20A(7) Notwithstanding subrule (6), a party to an action under this rule may at any time after the statement of claim is served request from the trial co-ordinator of the court a fixed date and time for a case conference with a case conference judge, and the party requesting the case conference shall give at least seven days notice of the date and time of the case conference, in writing, to each lawyer of record of a party and to each party not represented by a lawyer.
M.R. 184/96; 229/96; 120/99
Adjourning first case conference by consent
20A(8) The first case conference may be adjourned to a fixed date, which must be within 120 days after the date of the close of pleadings, by a party filing a Request to adjourn with the trial co-ordinator of the court, together with a consent from each party to the action to adjourn the case conference to that fixed date.
M.R. 184/96
Adjourning first case conference by judge
20A(9) If
(a) the parties to the action do not consent to an adjournment of the first case conference; or
(b) an adjournment to a date more than 120 days after the close of pleadings is requested;
a case conference judge may adjourn the first case conference following a meeting or teleconference with the parties, initiated by the filing of a Request by the party requesting the adjournment.
M.R. 184/96
20A(10) After the first case conference has been held, a subsequent case conference may be scheduled
(a) by the case conference judge; or
(b) at the request of a party to the action, in accordance with the procedure under subrule 20A(7).
M.R. 184/96
20A(11) Unless otherwise directed by the case conference judge, the lawyer attending a case conference shall be the lawyer principally responsible for the conduct of the action.
M.R. 184/96
20A(12) The parties to a proceeding shall attend a case conference upon the request of the case conference judge.
M.R. 184/96
20A(13) A case conference judge may direct a case conference to be held by means of a conference telephone call or other means of telecommunication.
M.R. 184/96
20A(14) To the extent possible, the case conference judge who presides over the first case conference shall also preside over
(a) any subsequent case conference; and
(b) any motion in the action.
M.R. 184/96
Judge's duty to explore settlement
20A(15) At a case conference, the case conference judge shall explore with the parties the possibility of settlement.
M.R. 184/96
20A(16) At a case conference, the case conference judge may make any order he or she considers appropriate to ensure a just, expeditious and cost-effective determination of the action, including an order
(a) that the pleadings be amended or closed within a fixed time;
(b) that motions be brought within a fixed time;
(c) that procedures for discovery be completed within a fixed time;
(d) that discovery, including examinations for discovery and interrogatories, be dispensed with or limited as to the nature, scope or duration of the discovery, having regard to the nature and complexity of the action, the amount at issue in the action, and the likely expense of discovery to the parties;
(e) where there has been a motion for summary judgment, that discovery be limited to matters not covered by the affidavits filed on the motion and any cross-examinations on the affidavits, and that the affidavits and cross-examinations be used at trial in the same manner as an examination for discovery;
(f) that the parties exchange reports and resumes of any experts to be called to give evidence at the trial, and fixing the time within which to do so;
(g) that a pre-trial conference be dispensed with and the action be set down for trial and fixing a date for the trial that is
(i) within 180 days of the date of the first case conference, or
(ii) at such other time as the judge may consider appropriate;
(h) that the parties file an agreed statement of facts and each file a brief of law;
(i) that evidence at trial in whole or in part be adduced by affidavit; and
(j) that a further case conference be held at a time and place to be fixed.
M.R. 184/96
20A(17) If a party does not consent to an order under subrule (16) being made, the party requesting the order shall proceed by way of a motion to the case conference judge, within the time period fixed by the case conference judge.
M.R. 184/96
20A(18) The case conference judge shall
(a) issue a memorandum indicating the issues to be resolved at trial; and
(b) direct that a copy of the memorandum be provided to the lawyers and unrepresented parties.
M.R. 184/96
Facts deemed to be established
20A(19) Any facts ordered by the case conference judge not in dispute, or ordered to be adduced by affidavit shall be deemed to be established for the purpose of the trial, and the trial shall be conducted accordingly, unless the trial judge orders otherwise.
M.R. 184/96
Case conference judge not to preside at trial
20A(20) Except with the consent of the parties, a judge who presides at a case conference under this rule shall not preside at the trial of the action.
M.R. 184/96
20A(21) Nothing in this rule limits the amount of a judgment or order that may be made in an action governed by this rule.
20A(22) Subject to the discretion of the court, in any action under this rule costs shall be assessed on a Class II basis pursuant to Tariff "A", whether or not the judgment ultimately exceeds the sum of $50,000.
M.R. 184/96
Rule not applicable to family proceedings
20A(23) This rule does not apply to a family proceeding within the meaning of section 41 of The Court of Queen's Bench Act.
M.R. 229/96
DETERMINATION OF AN ISSUE BEFORE TRIAL
WHERE AVAILABLE
To any party on a question of law
21.01(1) A party may move before a judge, for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs and the judge may make an order or grant judgment accordingly.
21.01(2) No evidence is admissible under subrule (1) except with leave of a judge or on consent of the parties.
21.01(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,
Jurisdiction
(a) the court has no jurisdiction over the subject matter of the action;
Capacity
(b) the plaintiff is without legal capacity to commence or continue the action or the defendant does not have the legal capacity to be sued; or
Another Proceeding Pending
(c) another proceeding is pending in Manitoba or another jurisdiction between the same parties in respect of the same subject matter;
and the judge may make an order or grant judgment accordingly.
21.01(4) The making of a motion under clause 3(a) or appearing on such a motion is not in itself a submission to the jurisdiction of the court over the moving party.
21.02 A motion under rule 21.01 shall be made promptly and a failure to do so may be taken into account by the court in awarding costs.
SPECIAL CASE
WHERE AVAILABLE
22.01(1) Where the parties to a proceeding concur in stating a question of law in the form of a special case for the opinion of the court, any party may move before a judge to have the special case determined.
22.01(2) Where the judge is satisfied that the determination of the question may dispose of all or part of the proceeding, substantially shorten the hearing or result in a substantial saving of costs, the judge may hear and determine the special case.
22.02 A special case (Form 22A) shall,
(a) set out concisely the material facts, as agreed on by the parties, that are necessary to enable the court to determine the question stated;
(b) refer to and include a copy of any documents that are necessary to determine the question;
(c) set out the relief sought, as agreed on by the parties, on the determination of the question of law; and
(d) be signed by the lawyers for the parties, or if a party is acting in person, by the party so acting.
HEARING OF A SPECIAL CASE
22.03(1) On the hearing of a special case the court may draw any reasonable inference from the facts agreed on by the parties and documents referred to in the special case.
22.03(2) On the determination of the question of law the court may make an order or grant judgment accordingly.
DISCONTINUANCE AND WITHDRAWAL
DISCONTINUANCE BY PLAINTIFF
23.01(1) A plaintiff may discontinue all or part of an action against a defendant,
(a) where the statement of claim has not been served on the defendant, by serving a Notice of Discontinuance (Form 23A) on all parties who have been served with the statement of claim and filing the Notice;
(b) where the statement of claim has been served on the defendant and the pleadings are not closed,
(i) by serving a Notice of Discontinuance (Form 23A) on all parties who have been served with the statement of claim, and
(ii) by filing the Notice along with an affidavit of service of the Notice upon the defendant;
(c) where the pleadings are closed,
(i) by serving a Notice of Discontinuance (Form 23A) on all parties and filing consents to the discontinuance from all parties, or
(ii) with leave of the court, by filing a Notice of Discontinuance (Form 23A) along with a copy of the order and taking such other steps as the court requires to discontinue the action or part of the action against the defendant.
M.R. 146/90; 31/91
23.01(2) Where a party to an action is under disability, the action may be discontinued by or against that party only with leave of a judge, on notice to,
(a) the Public Trustee;
(b) where the party under disability is a defendant, the litigation guardian, committee of the estate or substitute decision maker of the estate.
M.R. 185/96
EFFECT OF DISCONTINUANCE ON SUBSEQUENT ACTION
23.02(1) The discontinuance of all or part of an action is not a defence to a subsequent action, unless the order giving leave to discontinue or a consent filed by the parties provides otherwise.
23.02(2) Where a plaintiff has discontinued and is liable for costs of an action, and another action involving the same subject matter is subsequently brought between the same parties or their representatives or successors in interest before payment of the costs of the discontinued action, the court may order a stay of the subsequent action until the costs of the discontinued action have been paid.
23.03 Where a plaintiff discontinues an action against a defendant, the defendant is entitled to the costs,
(a) of the action;
(b) of any crossclaim or third party claim; and
(c) payable to any persons against whom the defendant has commenced a crossclaim or third party claim, unless the court orders or the parties agree otherwise.
WITHDRAWAL BY DEFENDANT
23.04(1) A defendant may withdraw all or part of the statement of defence with respect to any plaintiff at any time by filing, and serving on all parties, a notice of withdrawal of defence (Form 23B), but,
(a) where the defendant has crossclaimed or made a third party claim, leave to withdraw must be obtained from the court; and
(b) where the defendant seeks to withdraw an admission in the statement of defence, rule 51.05 (withdrawal of admission) applies.
23.04(2) Where a defendant withdraws the whole of the statement of defence, the defendant shall be deemed to be noted in default.
APPLICATION TO COUNTERCLAIMS, CROSSCLAIMS AND THIRD PARTY CLAIMS
23.05 Rules 23.01 to 23.04 apply, with necessary modifications, to counterclaims, crossclaims, third party claims and petitions.
M.R. 146/90
DISMISSAL OF ACTION FOR DELAY
WHERE AVAILABLE
24.01(1) The court may on motion dismiss an action for delay.
24.01(2) On hearing a motion under this rule, the court may consider,
(a) whether the plaintiff has unreasonably delayed the prosecution of the action;
(b) whether there is a reasonable justification for any delay;
(c) any prejudice to the defendant; and
(d) any other relevant factor.
EFFECT OF DISMISSAL ON CROSSCLAIM OR THIRD PARTY CLAIM
24.02 Where an action against a defendant who has crossclaimed or made a third party claim is dismissed for delay,
(a) the crossclaim or third party claim shall be deemed to be dismissed with costs; and
(b) the defendant may recover those costs and the defendant's own costs of the crossclaim or third party claim from the plaintiff;
unless the court orders otherwise.
EFFECT ON SUBSEQUENT ACTION
24.03(1) The dismissal of an action for delay is not a defence to a subsequent action unless the order dismissing the action provides otherwise.
24.03(2) Where a plaintiff's action has been dismissed for delay with costs, and another action involving the same subject matter is subsequently brought between the same parties or their representatives or successors in interest before payment of the costs of the dismissed action, the court may order a stay of the subsequent action until the costs of the dismissed action have been paid.
APPLICATIONS TO COUNTERCLAIMS, CROSSCLAIMS AND THIRD PARTY CLAIMS
24.04 Rules 24.01 and 24.03 apply, with necessary modifications, to counterclaims, crossclaims and third party claims.
PART VI PLEADINGS
PLEADINGS IN AN ACTION
PLEADINGS REQUIRED OR PERMITTED
Action commenced by statement of claim
25.01(1) In an action commenced by statement of claim pleadings shall consist of the statement of claim (Form 14A), statement of defence (Form 18A) and reply (Form 25A), if any.
25.01(2) In a counterclaim, pleadings shall consist of the counterclaim (Form 27A or 27B), defence to counterclaim (Form 27C) and reply to defence to counterclaim (Form 27D), if any.
25.01(3) In a crossclaim, pleadings shall consist of the crossclaim (Form 28A), defence to crossclaim (Form 28B) and reply to defence to crossclaim (Form 28C), if any.
25.01(4) In a third party claim, pleadings shall consist of the third party claim (Form 29A), third party defence (Form 29B) and reply to third party defence (Form 29C), if any.
25.01(5) No pleading subsequent to a reply shall be filed without the consent in writing of the opposite party or leave of the court.
25.02 Pleadings shall be divided into paragraphs numbered consecutively, and each allegation shall, so far as is practical, be contained in a separate paragraph.
SERVICE OF PLEADINGS
25.03(1) Every pleading shall be served on every person who is, at the time of service, a party to the main action or to a counterclaim, crossclaim or third or subsequent party claim in the main action.
25.03(2) Where a person is added as a party to an action, the party that sought the addition shall serve on the added party all the pleadings previously filed in the main action and in any counterclaim, crossclaim or third or subsequent party claim in the main action, unless the court orders otherwise.
Where personal service not required
25.03(3) Where a pleading is an originating process, personal service on parties other than an opposite party is not required.
TIME FOR FILING AND SERVING PLEADINGS
25.04(1) The time for serving a statement of claim is prescribed by rule 14.07.
25.04(2) The time for filing and serving a statement of defence is prescribed by rule 18.01.
25.04(3) A reply, if any, shall be filed and served within ten days after service of the statement of defence except where the defendant counterclaims, in which case a reply and defence to counterclaim, if any, shall be filed and served within twenty days after service of the statement of defence and counterclaim.
25.04(4) The time for filing and serving pleadings in a counterclaim is prescribed by Rule 27.
25.04(5) The time for filing and serving pleadings in a crossclaim is prescribed by Rule 28.
25.04(6) The time for filing and serving pleadings in a third party claim is prescribed by Rule 29.
25.05 Pleadings in an action are closed when,
(a) the plaintiff has filed a reply to every defence in the action or the time for filing a reply has expired; and
(b) every defendant who is in default in filing a defence in the action has been noted in default.
RULES OF PLEADING - APPLICABLE TO ALL PLEADINGS
25.06(1) Every pleading shall contain a concise statement of the material facts on which the party relies for a claim or defence, but not the evidence by which those facts are to be proved.
25.06(2) Where a party seeks relief in respect of separate and distinct claims, or raises separate and distinct grounds of defence, the material facts supporting each claim or ground of defence shall be stated separately as far as may be possible.
25.06(3) A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded.
25.06(4) Where a party's claim or defence is founded on an Act or Regulation, the specific sections relied on shall be pleaded.
25.06(5) Allegations of the performance or occurrence of all conditions precedent to the assertion of a claim or defence of a party are implied in the party's pleading and need not be set out, and where the opposite party intends to contest the performance or occurrence of a condition precedent, the pleadings of the opposite party shall specify the condition and its pleadings of non-performance or non-occurrence.
25.06(6) A party may make inconsistent allegations in a pleading where the pleading makes it clear that they are being pleaded in the alternative.
25.06(7) An allegation that is inconsistent with an allegation made in a party's previous pleading or that raises a new ground of claim shall not be made in a subsequent pleading but by way of amendment to the previous pleading.
25.06(8) Where notice to a person is alleged, it is sufficient to allege notice as a fact unless the form or a precise term of the notice is material.
25.06(9) The effect of a document or the purport of a conversation, if material, shall be pleaded as briefly as possible, but the precise words of the document or conversation need not be pleaded unless those words are themselves material.
25.06(10) Where a contract or relation between persons does not arise from an express agreement, but is to be implied from a series of letters, communications, or conversations, or otherwise from a number of circumstances, it shall be sufficient to allege the contract or relation as a fact.
Nature of act or condition of mind
25.06(11) Where fraud, misrepresentation or breach of trust is alleged, the pleading shall contain full particulars, but malice, intent or knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.
25.06(12) A party need not plead a fact which the law presumes to be in the party's favour, or as to which the burden of proof lies on the opposite party.
25.06(13) Where a pleading contains a claim for relief, the nature of the relief claimed shall be specified either simply or alternatively, and, where damages are claimed,
(a) the nature of the relief claimed, including the amount of special damages, for each claimant in respect of each claim shall be stated;
(b) the amounts and particulars of special damages need only be pleaded to the extent that they are known at the date of the pleading, but notice of any further amounts and particulars shall be filed and served as they become known; and
(c) the amount of general damages claimed need not be stated.
Claim for general relief implied
25.06(14) A claim for general relief will be implied in any pleading where relief is claimed.
RULES OF PLEADING - APPLICABLE TO DEFENCES
25.07(1) In a defence, a party shall admit every allegation of fact in the opposite party's pleading that the party does not dispute.
25.07(2) Subject to subrule (6), all allegations of fact affecting a party that are not denied in that party's defence shall be deemed to be admitted unless the party pleads having no knowledge in respect of the fact.
Manner of pleading admissions and denials
25.07(3) Admissions and denials shall, where practicable, be by reference to the numbers in the pleading to which they relate.
25.07(4) Where a party intends to prove a version of the facts different from that pleaded by the opposite party, a denial of the version so pleaded is not sufficient, but the party's own version of the facts shall be pleaded in the defence.
25.07(5) In a defence, a party shall plead any matter on which the party intends to rely to defeat the claim of the opposite party and which, if not specifically pleaded, might take the opposite party by surprise or raise an issue that has not been raised in the opposite party's pleading.
25.07(6) Where an agreement is alleged in a pleading, a denial of the agreement by the opposite party shall be construed only as a denial of the making of the agreement or of the facts from which the agreement may be implied by law, and not as a denial of the legality or sufficiency in law of the agreement.
25.07(7) In an action for damages, the amount of damages shall be deemed to be in issue unless specifically admitted.
WHERE A REPLY IS NECESSARY
25.08(1) A party who intends to prove a version of the facts different from that pleaded in the opposite party's defence shall file and serve a reply setting out the different version, unless it has already been pleaded in the claim.
25.08(2) A party who intends to rely in response to a defence on any matter that might, if not specifically pleaded, take the opposite party by surprise or raise an issue that has not been raised by a previous pleading shall file and serve a reply setting out that matter, subject to subrule 25.06(7).
25.08(3) A party shall not file a reply except where required to do so by subrule (1) or (2).
Deemed denial of allegations where no reply
25.08(4) A party shall be deemed to deny the allegations of fact made in the defence of the opposite party where a reply is not filed and served within the prescribed time.
RULES OF PLEADING - APPLICABLE TO REPLIES
25.09(1) A party who files a reply shall admit every allegation of fact affecting that party in the opposite party's defence that the party does not dispute.
25.09(2) Where an agreement is alleged in a defence, a denial of the agreement in the opposite party's reply, or a deemed denial under subrule 25.08(4), shall be construed only as a denial of the making of the agreement or of the facts from which the agreement may be implied by law, and not as a denial of the legality or sufficiency in law of the agreement.
PARTICULARS
25.10(1) Where a party desires particulars of an allegation in the pleading of an opposite party, a written request shall be served on the opposite party specifying the particulars desired.
25.10(1.1) The opposite party shall
(a) file and serve the particulars; or
(b) file and serve a written statement refusing to provide the particulars;
within ten days of being served with a request for particulars.
M.R. 127/94
25.10(2) Where the opposite party fails to file and serve the particulars or fails to file and serve a written statement refusing to provide the particulars within ten days, the court may order particulars to be filed and served within a specified time.
M.R. 127/94
25.10(3) A request for particulars shall not operate as a stay of proceedings except in the circumstances and for the periods of time referred to in subrules 25.10(4) and (4.1).
M.R. 127/94
Pleading in response where particulars requested
25.10(4) Where particulars are requested, the party need not file a pleading in response until the expiry of 10 days after the particulars have been provided or refused in writing.
M.R. 127/94
Pleading in response where particulars ordered
25.10(4.1) Where particulars are ordered, the party need not file a pleading in response until the expiry of 10 days after the particulars have been provided or until the expiry of such further period as the court may order.
M.R. 127/94
25.10(5) Particulars shall be provided in accordance with Form 25B.
STRIKING OUT A PLEADING OR OTHER DOCUMENT
25.11 The court may on motion strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
(a) may prejudice or delay the fair trial of the action;
(b) is scandalous, frivolous or vexatious;
(c) is an abuse of the process of the court; or
(d) does not disclose a reasonable cause of action or defence.
AMENDMENT OF PLEADINGS
26.01 On motion at any stage of an action the court may grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
26.02 Generally, a party may amend a pleading,
(a) by requisition before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action;
(b) on filing the written consent of all parties and, where a person is to be added or substituted as a party, the person's written consent;
(c) at any time on requisition to correct clerical errors; or
(d) with leave of the court.
SUBSEQUENT FACTS
26.03(1) The court may in an appropriate case on motion allow a party to amend a pleading to allege a fact that has occurred after the commencement of the proceeding even though the fact gives rise to a new claim or defence.
Additional claims of money under contract
26.03(2) In an action for or including a claim for money owing under a contract, document or instrument, a party may on requisition amend the party's originating process or pleading to claim any additional money alleged to have become payable under the contract, document or instrument since the commencement of the action.
HOW AMENDMENTS MADE
26.04(1) An amendment to a pleading shall be made on the face of the copy filed in the court office, except that where the amendment is so extensive as to make the amended pleading difficult or inconvenient to read the party shall file a fresh copy of the original pleading as amended, bearing the date of the original pleading and the title of the pleading preceded by the word "amended".
26.04(2) An amendment to a pleading shall be underlined so as to distinguish the amended wording from the original, and the registrar shall note on the amended pleading the date on which, and the authority by which, the amendment was made.
26.04(3) Where a pleading has been amended more than once each subsequent amendment shall be underlined with an additional line for each occasion.
26.04(4) Where a party has obtained leave to amend a pleading, the amendment shall be made within 14 days after the date the order is signed, unless otherwise stated in the order.
M.R. 127/94
SERVICE OF AMENDED PLEADING
Service on every party to action
26.05(1) An amended pleading shall be served forthwith on every person who is, at the time of service, a party to the action, unless the court orders otherwise.
26.05(2) Where an amended pleading is an originating process,
(a) it need not be served personally on a party who was served with the original pleading and responded to it; and
(b) it shall be served personally or by an alternative to personal service under rule 16.03 on an opposite party who has not responded to the original pleading, whether or not that party has been noted in default.
RESPONDING TO AN AMENDED PLEADING
26.06(1) A party shall respond to an amended pleading within the time remaining for responding to the original pleading, or within 10 days after service of the amended pleading, whichever is the longer period, unless the court orders otherwise.
Responding to subsequent amendment
26.06(2) Where a party has responded to a pleading that is subsequently amended, the party shall be deemed to rely on his or her original pleading in answer to the amended pleading unless the party responds to it within 10 days after service of the amended pleading.
26.07 Where a pleading is amended at the trial, and the amendment is made on the face of the record, an order need not be taken out and the pleading as amended need not be filed or served unless the court orders otherwise.
COUNTERCLAIM
WHERE AVAILABLE
27.01(1) A defendant may assert, by way of counterclaim in the main action, any right or claim including a set-off which that defendant may have against the plaintiff.
Against the plaintiff and another person
27.01(2) A defendant who counterclaims against a plaintiff may join as a defendant to the counterclaim any other person, whether a party to the main action or not, who is a necessary or proper party to the counterclaim.
STATEMENT OF DEFENCE AND COUNTERCLAIM
27.02 A counterclaim (Form 27A or 27B) shall be included in the same document as the statement of defence and the document shall be entitled a statement of defence and counterclaim.
COUNTERCLAIM TO BE ISSUED WHERE DEFENDANT TO COUNTERCLAIM NOT ALREADY PARTY
27.03 Where a person who is not already a party to the main action is made a defendant to the counterclaim, the statement of defence and counterclaim,
(a) shall be issued,
(i) within the time prescribed by rule 18.01 for filing and serving the statement of defence in the main action or at any time before the defendant is noted in default, or
(ii) subsequently with leave of the court; and
(b) shall contain a second title of proceeding showing who is the plaintiff by counterclaim and who are defendants to the counterclaim.
TIME FOR FILING AND SERVING DEFENCE AND COUNTERCLAIM
All parties are parties to main action
27.04(1) Where a counterclaim is only against the plaintiff, or only against the plaintiff and another person who is already a party to the main action, the statement of defence and counterclaim shall be filed and served within the time prescribed by rule 18.01 for filing and serving a statement of defence in the main action, or at any time before the defendant is noted in default.
27.04(2) Where a counterclaim is against the plaintiff and a defendant to the counterclaim who is not already a party to the main action, the statement of defence and counterclaim shall be served forthwith after it has been issued, on the parties to the main action and, together with all the pleadings previously filed in the main action, on a defendant to the counterclaim who is not already a party to the main action.
27.04(3) A statement of defence and counterclaim need not be served personally on any person who is a party to the main action, except where a defendant to the counterclaim is also a defendant in the main action and has failed to file a statement of defence in the main action, in which case the defendant shall be served personally or by an alternative to personal service under rule 16.03 whether or not the defendant has been noted in default in the main action.
TIME FOR FILING AND SERVING DEFENCE TO COUNTERCLAIM
27.05(1) The plaintiff and any other defendant to a counterclaim who is already a party to the main action shall file and serve a defence to counterclaim (Form 27C) within 20 days after service of the statement of defence and counterclaim.
Reply and defence to counterclaim
27.05(2) Where the plaintiff files a reply in the main action, the defence to counterclaim shall be included in the same document as the reply and the document shall be entitled a reply and defence to counterclaim.
27.05(3) A defendant to a counterclaim who is not already a party to the main action shall file and serve a defence to counterclaim,
(a) within 20 days after service of the statement of defence and counterclaim, where the defendant to the counterclaim is served in Manitoba;
(b) within 40 days after service of the statement of defence and counterclaim, where the defendant to the counterclaim is served elsewhere in Canada or in the United States of America; or
(c) within 60 days after service of the statement of defence and counterclaim, where the defendant to the counterclaim is served anywhere else;
except as provided in subrule 19.01(5) (late filing of defence).
TIME FOR FILING AND SERVING REPLY TO DEFENCE TO COUNTERCLAIM
27.06 A reply to defence to counterclaim (Form 27D), if any, shall be filed and served within 10 days after service of the defence to counterclaim.
AMENDING DEFENCE TO ADD COUNTERCLAIM
All parties are parties to main action
27.07(1) A defendant who has filed a statement of defence that does not contain a counterclaim and who wishes to counterclaim only against the plaintiff or only against the plaintiff and another person who is already a party to the main action may amend the statement of defence in accordance with rules 26.02 and 26.03 in order to add the counterclaim, and rule 26.06 (responding to amended pleading) applies to the amended statement of defence and counterclaim.
27.07(2) A defendant who has filed a statement of defence that does not contain a counterclaim and who wishes to counterclaim against the plaintiff and another person who is not already a party to the main action may, with leave of the court, require the registrar to issue an amended statement of defence and counterclaim, and rule 26.06 (responding to amended pleading) applies to the amended statement of defence and counterclaim.
TRIAL OF COUNTERCLAIM
27.08(1) A counterclaim shall be tried at the trial of the main action, unless the court orders otherwise.
27.08(2) Where it appears that a counterclaim may unduly complicate or delay the trial of the main action, or cause undue prejudice to a party, the court may order separate trials or order that the counterclaim proceed as a separate action.
DISPOSITION OF COUNTERCLAIM
Where claim in main action not disputed
27.09(1) Where a defendant does not dispute the claim of the plaintiff in the main action, but asserts a counterclaim, the court may stay the mainaction or grant judgment, with or without a stay of execution, until the counterclaim is disposed of.
Where counterclaim not disputed
27.09(2) Where the plaintiff does not dispute the counterclaim of a defendant, the court may stay the counterclaim or grant judgment, with or without a stay of execution, until the main action is disposed of.
Where both claim and counterclaim succeed
27.09(3) Where both the plaintiff in the main action and the plaintiff by counterclaim succeed, either in whole or in part, and there is a resulting balance owing to one of them, the court may in a proper case give judgment for the balance owing and dismiss the smaller claim and may make such order for costs of the claim and counterclaim as is just.
Where claim discontinued, etc.
27.09(4) Where the claim in the main action is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with.
APPLICATION TO COUNTERCLAIMS, CROSSCLAIMS AND THIRD PARTY CLAIMS
27.10 Rules 27.01 to 27.09 apply, with necessary modifications, to the assertion of a counterclaim by a defendant to a counterclaim, by a defendant to a crossclaim and by a third party.
CROSSCLAIM
28.01 A defendant may claim against a co-defendant who,
(a) is or may be liable to the defendant for all or part of the plaintiff's claim;
(b) is or may be liable to the defendant for an independent claim for damages or other relief arising out of a transaction or occurrence or series of transactions or occurrences involved in or related to the main action; or
(c) should be bound by the determination of an issue arising between the plaintiff and the defendant;
and shall do so by way of crossclaim.
STATEMENT OF DEFENCE AND CROSSCLAIM
28.02 A crossclaim (Form 28A) shall be included in the same document as the statement of defence and the document shall be entitled a statement of defence and crossclaim.
AMEMDING DEFENCE TO ADD CROSSCLAIM
28.03 A defendant who has filed and served a statement of defence that does not contain a crossclaim and who wishes to crossclaim may amend the statement of defence in accordance with rules 26.02 and 26.03 in order to add the crossclaim, and rule 26.06 (responding to amended pleading) applies to the amended statement of defence and crossclaim.
TIME FOR FILING AND SERVING STATEMENT OF DEFENCE AND CROSSCLAIM
28.04(1) A statement of defence and crossclaim shall be filed and served,
(a) within the time prescribed by rule 18.01 for filing and serving the statement of defence in the main action or at any time before the defendant is noted in default; or
(b) subsequently with leave of the court.
28.04(2) A statement of defence and crossclaim need not be served personally on a defendant against whom a crossclaim is made, unless the defendant has failed to file a statement of defence in the main action, in which case the defendant shall be served personally or by an alternative to personal service under rule 16.03, whether or not the defendant has been noted in default in the main action.
TIME FOR FILING AND SERVING DEFENCE TO CROSSCLAIM
28.05(1) Subject to subrule (2), a defence to crossclaim (Form 28B) shall be delivered within 20 days after service of the statement of defence and crossclaim.
Where defence to crossclaim not required
28.05(2) Where,
(a) a crossclaim contains no claim other than a claim for contribution or indemnity under The Tortfeasors and Contributory Negligence Act;
(b) the defendant to the crossclaim has delivered a statement of defence in the main action; and
(c) the defendant to the crossclaim in response to the crossclaim relies on the facts pleaded in the defendant's statement of defence in the main action and not on a different version of the facts or on any matter that might, if not specifically pleaded, take the crossclaiming defendant by surprise,
the defendant to the crossclaim need not deliver a defence to the crossclaim and shall be deemed to deny the allegations of fact made in the crossclaim and to rely on the facts pleaded in the defendant's statement of defence in the main action.
CONTENTS OF DEFENCE TO CROSSCLAIM
May defend against crossclaim and against plaintiff's claim against co-defendant
28.06(1) In a defence to crossclaim, the defendant may,
(a) defend against the crossclaim; and
(b) where appropriate, defend against the plaintiff's claim against the crossclaiming defendant, in which case the defendant may raise any defence open to the crossclaiming defendant.
Separate part for defence against plaintiff
28.06(2) Where the defendant defends under clause (1)(b), the defence to crossclaim shall contain a separate part entitled a defence to plaintiff's claim against crossclaiming defendant.
Consequence of defending against plaintiff
28.06(3) A defendant who defends under clause (1)(b),
(a) has the same rights and obligations in the action as a defendant to that claim; and
(b) is bound by any order or determination made in the main action between the plaintiff and the crossclaiming defendant.
28.06(4) The plaintiff's reply, if any, to the defence to plaintiff's claim against crossclaiming defendant shall be filed and served within 10 days after service of that defence.
Consequence of not defending against plaintiff
28.06(5) A defendant who does not file a defence to the plaintiff's claim against the crossclaiming defendant is bound by any order or determination made in the main action between the plaintiff and the crossclaiming defendant.
EFFECT OF DEFAULT OF DEFENCE TO CROSSCLAIM
28.07 Where a defendant against whom a crossclaim is made is noted in default in respect of the crossclaim, the crossclaiming defendant may obtain judgment against the other defendant only at the trial of the main action or on motion to a judge.
TIME FOR FILING AND SERVING REPLY TO DEFENCE TO CROSSCLAIM
28.08 A reply to defence to crossclaim (Form 28C), if any, shall be filed and served within 10 days after service of the defence to crossclaim.
28.09 A crossclaim shall be tried at or immediately after the trial of the main action, unless the court orders otherwise.
PREJUDICE OR DELAY TO PLAINTIFF
28.10 A plaintiff is not to be prejudiced or unnecessarily delayed by reason of a crossclaim, and on motion by the plaintiff the court may make such order or impose such terms, including an order that the crossclaim proceed as a separate action, as are necessary to prevent prejudice or delay where that may be done without injustice to the parties to the crossclaim.
APPLICATION TO COUNTERCLAIMS AND THIRD PARTY CLAIMS
28.11 Rules 28.01 to 28.10 apply, with necessary modifications, to the assertion of a crossclaim between co-defendants to a counterclaim or between third parties to a third party claim.
THIRD PARTY CLAIM
29.01 A defendant may commence a third party claim against any person who is not a party to the action and who,
(a) is or may be liable to the defendant for all or part of the plaintiff's claim;
(b) is or may be liable to the defendant for an independent claim for damages or other relief arising out of a transaction or occurrence or series of transactions or occurrences involved in or related to the main action; or
(c) should be bound by the determination of an issue arising between the plaintiff and the defendant.
TIME FOR THIRD PARTY CLAIM
29.02(1) A third party claim (Form 29A) shall be issued,
(a) within 10 days after the time prescribed by rule 18.01 for filing and serving the statement of defence in the main action or at any time before the defendant is noted in default; or
(b) subsequently with leave of the court.
29.02(2) A third party claim shall be served on the third party personally or by an alternative to personal service under rule 16.03, together with all the pleadings previously filed in the main action or in any counterclaim, crossclaim or third or subsequent party claim in the main action, within 30 days after the third party claim is issued.
29.02(3) A third party claim shall also be served on every other party to the main action within the time for service on the third party, but personal service is not required.
29.03 A third party may defend against the third party claim by filing and serving a third party defence (Form 29B),
(a) within 20 days after service of the third party claim, where the third party is served in Manitoba;
(b) within 40 days after service of the third party claim, where the third party is served elsewhere in Canada or in the United States of America; or
(c) within 60 days after service of the third party claim, where the third party is served anywhere else;
except as provided in subrule 19.01(5) (late filing of defence).
29.04 A reply to third party defence (Form 29C), if any, shall be filed and served within 10 days after service of the third party defence.
DEFENCE OF MAIN ACTION BY THIRD PARTY
Third party may defend main action
29.05(1) The third party may defend against the plaintiff's claim against the defendant by filing and serving a statement of defence in the main action, in which the third party may raise any defence open to the defendant.
Consequence of defending main action
29.05(2) A third party who files a statement of defence in the main action,
(a) has the same rights and obligations in the main action, as a defendant in the main action; and
(b) is bound by any order or determination made in the main action between the plaintiff and the defendant who made the third party claim.
29.05(3) The statement of defence of the third party shall be filed and served within the time prescribed by rule 29.03 for the filing and serving the third party defence.
29.05(4) The plaintiff's reply, if any, to the statement of defence of the third party shall be filed and served within 10 days after service of that statement of defence.
Consequence of not defending main action
29.05(5) A third party who does not file a statement of defence in the main action is bound by any order or determination made in the main action between the plaintiff and the defendant who made the third party claim.
29.06 Where a third party has filed a third party defence,
(a) the third party shall be served with all subsequent documents in the main action;
(b) judgment in the main action on consent or after the noting of the defendant in default may be obtained only on notice to the third party; and
(c) where the defendant making the third party claim has also made a crossclaim against a co-defendant, the co-defendant and the third party have the same rights to discovery from each other as if they were parties to the same action.
EFFECT OF DEFAULT OF THIRD PARTY
29.07 Where a third party has been noted in default, the defendant may obtain judgment against the third party only at the trial of the main action or on motion to a judge.
29.08 The third party claim shall be tried at or immediately after the trial of the main action, unless the court orders otherwise.
PREJUDICE OR DELAY TO PLAINTIFF
29.09 A plaintiff is not to be prejudiced or unnecessarily delayed by reason of a third party claim, and on motion by the plaintiff the court may make such order or impose such terms, including an order that the third party claim proceed as a separate action, as are necessary to prevent prejudice or delay where that may be done without injustice to the defendant or the third party.
29.10 Any party affected by a third party claim may move for directions in respect of any matter of procedure not otherwise provided for in these rules.
FOURTH AND SUBSEQUENT PARTY CLAIMS
29.11(1) A third party may, by commencing a fourth party claim, assert against any person not already a party to the third party claim any claim that is properly the subject matter of a third party claim, and rules 29.01 to 29.10 apply, with necessary modifications, to the fourth party claim.
29.11(2) A fourth party claim need not be served personally on a fourth party who is a party to the main action, unless the fourth party is a defendant in that action and has failed to file a statement of defence in the main action, in which case the fourth party shall be served personally or by an alternative to personal service under rule 16.03, whether or not the fourth party has been noted in default in the main action.
29.11(3) A fourth or subsequent party may assert any claim that is properly the subject matter of a third party claim in like manner as a third party claim.
APPLICATION TO FOURTH AND SUBSEQUENT PARTY CLAIMS
29.12 The provisions of these rules that apply to third party claims apply, with necessary modifications, to fourth and subsequent party claims.
APPLICATION TO COUNTERCLAIMS AND CROSSCLAIMS
29.13 Rules 29.01 to 29.12 apply, with necessary modifications, to the assertion of a third party claim by a defendant to a counterclaim or by a defendant to a crossclaim.
PART VII
DISCOVERY
DISCOVERY OF DOCUMENTS
INTERPRETATION
30.01(1) In rules 30.02 to 30.11,
(a) "document" includes a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account and information recorded or stored by means of any device;
(b) a document shall be deemed to be in a party's power if that party is entitled to obtain the original document or a copy of it and the party seeking it is not so entitled; and
(c) a relevant document is one which relates to any matter in issue in an action.
30.01(2) In subrule 30.02(4),
(a) a corporation is a subsidiary of another corporation where it is controlled directly or indirectly by the other corporation; and
(b) a corporation is affiliated with another corporation where,
(i) one corporation is the subsidiary of the other,
(ii) both corporations are subsidiaries of the same corporation, or
(iii) both corporations are controlled directly or indirectly by the same person or persons.
SCOPE OF DOCUMENTARY DISCOVERY
30.02(1) Every relevant document in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in this Rule, whether or not privilege is claimed in respect of the document.
30.02(2) Every relevant document that is not privileged and that is in the possession, control or power of a party to an action shall be produced for inspection if requested, as provided in this Rule.
30.02(3) A party shall disclose and, if requested, produce for inspection any insurance policy under which an insurer may be liable,
(a) to satisfy all or part of a judgment in the action; or
(b) to indemnify or reimburse a party for money paid in satisfaction of all or part of the judgment;
but no information concerning the insurance policy is admissible in evidence unless it is relevant to an issue in the action.
Subsidiary and affiliated corporations and corporations controlled by party
30.02(4) The court may order a party to disclose all relevant documents in the possession, control or power of the party's subsidiary or affiliated corporation or of a corporation controlled directly or indirectly by the party and to produce for inspection all such documents that are not privileged.
AFFIDAVIT OF DOCUMENTS
30.03(1) A party to an action shall, within 10 days after the close of pleadings, serve on every other party an affidavit of documents in Form 30A or 30B disclosing to the full extent of the party's knowledge, information and belief all relevant documents that are or have been in the party's possession, control or power; and the affidavit shall sufficiently identify the documents.
30.03(2) The affidavit of documents shall be made by the party, or in the case of a corporation, by an officer, director or employee.
30.03(3) Where the party is represented by a lawyer, the lawyer shall certify on the affidavit that he or she has explained to the deponent the necessity of making full disclosure of all relevant documents in issue in the action.
30.03(4) An affidavit of documents shall not be filed unless it is relevant to an issue on a pending motion or at trial.
INSPECTION OF DOCUMENTS
30.04(1) A party who serves on another party a request to inspect documents (Form 30C) is entitled to inspect any document that is not privileged and that is referred to in the other party's affidavit of documents as being in the other party's possession, control or power.
30.04(2) A request to inspect documents may also be used to obtain the inspection of any document in another party's possession, control or power that is referred to in the originating process, pleadings or an affidavit served by the other party.
30.04(3) A party on whom a request to inspect documents is served shall forthwith inform the party making the request of a date within 10 days after the service of the request and of a time between 9:30 a.m. and 4:30 p.m. when the documents may be inspected at the office of the lawyer of the party served, or at some other convenient place, and shall at the time and place named make the documents available for inspection.
Documents to be taken to examination and trial
30.04(4) All documents listed in a party's affidavit of documents that are not privileged and all documents previously produced for inspection by the party shall, without notice, subpoena or order, be taken to and produced at,
(a) the examination for discovery of the party or of a person on behalf of or in addition to the party; and
(b) the trial of the action;
unless the parties agree or the court otherwise orders.
30.04(5) The court may at any time order production for inspection of relevant documents that are not privileged and that are in the possession, control or power of a party.
Court may inspect to determine claim of privilege
30.04(6) Where privilege is claimed for a document, the court may inspect the document to determine the validity of the claim.
30.04(7) Where a document is produced for inspection, the party inspecting the document is entitled to make a copy of it at the party's own expense, if it can be reproduced, unless the person having possession or control of or power over the document agrees to make a copy, in which case the person shall be reimbursed for the cost of making the copy.
Divided disclosure or production
30.04(8) Where a document may become relevant only after the determination of an issue in the action and disclosure or production for inspection of the document before the issue is determined would seriously prejudice a party, the court on the party's motion may grant leave to withhold disclosure or production until after the issue has been determined.
DISCLOSURE OR PRODUCTION NOT ADMISSION OF ADMISSIBILITY
30.05 The disclosure or production of a document for inspection shall not be taken as an admission of its admissibility.
WHERE AFFIDAVIT INCOMPLETE OR PRIVILEGE IMPROPERLY CLAIMED
30.06 Where the court is satisfied by any evidence that a relevant document in a party's possession, control or power may have been omitted from or inadequately described in the party's affidavit of documents, or that a claim of privilege may have been improperly made, the court may,
(a) order cross-examination on the affidavit of documents;
(b) order service of a further and better affidavit of documents;
(c) order the disclosure or production for inspection of the document, or a part of the document, if it is not privileged; and
(d) inspect the document for the purpose of determining its relevance or the validity of a claim of privilege.
DOCUMENTS OR ERRORS SUBSEQUENTLY DISCOVERED
30.07(1) Where a party, after executing an affidavit of documents, comes into possession or control of or obtains power over a relevant document the party shall forthwith serve a supplementary affidavit disclosing the document and stating whether or not privilege is claimed for it.
30.07(2) Where a party, after executing an affidavit of documents, discovers that the affidavit is inaccurate or incomplete, the party shall forthwith serve a supplementary affidavit disclosing and correcting any inaccuracy or disclosing any additional document required to complete the affidavit of documents and stating whether or not privilege is claimed for it.
EFFECT OF FAILURE TO DISCLOSE OR PRODUCE FOR INSPECTION
Failure to disclose or produce document
30.08(1) Where a party fails to disclose a document in an affidavit of documents or a supplementary affidavit, or fails to produce a document for inspection in compliance with these rules or an order of the court,
(a) if the document is favourable to the party's case, the party may not use the document at the trial, except with leave of the trial judge; or
(b) if the document is not favourable to the party's case, the court may make such order as is just.
Failure to serve affidavit or produce document
30.08(2) Where a party fails to serve an affidavit of documents or produce a document for inspection in compliance with these rules or fails to comply with an order of the court under rules 30.02 to 30.11, the court may,
(a) revoke or suspend the party's right, if any, to initiate or continue an examination for discovery;
(b) dismiss the action, if the party is a plaintiff, or strike out the statement of defence, if the party is a defendant; and
(c) make such other order, including a contempt order, as is just.
PRIVILEGED DOCUMENT NOT TO BE USED WITHOUT LEAVE
30.09 Where a party has claimed privilege in respect of a document and does not abandon the claim by giving notice in writing and providing a copy of the document or producing it for inspection not later than 10 days after the action is set down for trial, the party may not use the document at the trial, except to impeach the testimony of a witness or with leave of a judge.
M.R. 159/99
PRODUCTION FROM NON-PARTIES WITH LEAVE
30.10(1) The court may, on motion by a party, order production for inspection of a relevant document that is in the possession, control or power of a person not a party and that is not privileged where it would be unfair to require the moving party to proceed to trial without having discovery of the document.
30.10(2) A motion for an order under subrule (1) shall be made on notice,
(a) to every other party; and
(b) to the person not a party, served personally or by an alternative to personal service under rule 16.03.
30.10(3) Where privilege is claimed for a document referred to in subrule (1), or where the court is uncertain of the relevance of or necessity for discovery of the document, the court may inspect the document to determine the issue.
30.10(4) The court may order the preparation of a certified copy of a document referred to in subrule (1) and the certified copy may be used for all purposes in place of the original.
DOCUMENT DEPOSITED FOR SAFEKEEPING
30.11 The court may order that a document be deposited for safekeeping with the registrar and thereafter the document shall not be inspected by any person except with leave of the court.
DEEMED UNDERTAKING
30.1(1) This Rule applies to
(a) evidence obtained
(i) under Rule 30 (discovery of documents),
(ii) under Rule 31 (examination for discovery),
(iii) under Rule 32 (inspection of property),
(iv) under Rule 33 (physical and mental examination of parties), and
(v) under Rule 35 (procedure on interrogatories), and
(vi) from the report of an expert witness referred to in rule 53.03 that is filed or deposited with the court in a "B" file under subrule 4.09(1);
(b) information obtained from evidence referred to in clause (a).
30.1(2) This Rule does not apply to evidence or information obtained otherwise than under subrule (1).
30.1(3) All parties and their lawyers are deemed to undertake not to use evidence or information to which this Rule applies for any purposes other than those of the proceeding in which the evidence was obtained.
30.1(4) Subrule (3) does not prohibit a use to which the person who disclosed the evidence consents.
Exception — if filed in court or given during a hearing
30.1(5) Subrule (3) does not prohibit the use, for any purpose, of
(a) evidence that is filed with the court, other than documents filed or deposited in a "B" file under subrule 4.09(1);
(b) evidence that is given or referred to during a hearing; and
(c) information obtained from evidence referred to in clause (a) or (b).
Exception — impeachment in another proceeding
30.1(6) Subrule (3) does not prohibit the use of evidence obtained in one proceeding, or information obtained from such evidence, to impeach the testimony of a witness in another proceeding.
30.1(7) Subrule (3) does not prohibit the use of evidence or information in accordance with subrule 31.11(10) (subsequent action).
Order that undertaking does not apply
30.1(8) If satisfied that the interests of justice outweigh any prejudice that would result to a party who disclosed evidence, the court may order that subrule (3) does not apply to the evidence or to information obtained from it, and may impose such terms and give such directions as are just.
EXAMINATION FOR DISCOVERY
31.01 In rules 31.02 to 31.12, "document" has the same meaning as in clause 30.01(1)(a).
31.02 An examination for discovery may take the form of an oral examination or interrogatories or both.
WHO MAY EXAMINE AND BE EXAMINED
31.03(1) A party to an action may orally examine for discovery any other party adverse in interest and may orally examine that party more than once only with leave of the court, but a party may orally examine more than one person as permitted by subrules (4), (7), (8), (9) and (10).
M.R. 150/89
31.03(2) Where a corporation may be examined for discovery, the examining party may examine any person who is or has been an officer, director or employee on behalf of the corporation, but the court on motion of the corporation before the examination may order the examining party to examine another officer, director or employee.
31.03(3) Where a person who is or has been an officer, director or employee of a corporation has been examined, no other officer, director or employee of the corporation may be examined without leave of the court.
On behalf of partnership or sole proprietorship
31.03(4) Where an action is brought by or against a partnership or a sole proprietorship using the firm name, each person who was, or is alleged to have been, a partner or the sole proprietor, as the case may be, at a material time, may be examined on behalf of the partnership or sole proprietorship; alternatively, anyone having the control or management of the partnership or sole proprietorship at a material time, may be examined on behalf of the partnership or proprietorship, as the case may be.
Disclosure and production of person to be examined
31.03(5) Where a corporation, partnership or sole proprietorship may be examined, it shall, upon the request of the examining party, disclose the name of a person to be examined who is knowledgeable concerning the matters in question in the action.
31.03(6) In examinations under subrules (2) and (4), the examining party may select the person to be examined, but, if no selection is made, the opposite party shall produce a person who is knowledgeable concerning the matters in question in the action to be examined.
31.03(7) Where an action is brought by or against a party under disability,
(a) the litigation guardian, committee or substitute decision maker may be examined on behalf of the person under disability; and
(b) the person under disability may be examined if the person is competent to give evidence.
M.R. 185/96
31.03(8) Where an action is brought by or against an assignee, the assignor may be examined in addition to the assignee.
31.03(9) Where an action is brought by or against a trustee of the estate of a bankrupt, the bankrupt may be examined in addition to the trustee.
31.03(10) Where an action is brought or defended for the immediate benefit of a person who is not a party, the person may be examined in addition to the party bringing or defending the action.
Limiting multiple examinations
31.03(11) Where a party is entitled to examine for discovery,
(a) more than one person under this rule; or
(b) multiple parties who are in the same interest;
but the court is satisfied that multiple examinations would be oppressive, vexatious or unnecessary, the court may impose such limits on the right of discovery as are just.
WHEN EXAMINATION MAY BE INITIATED
31.04(1) A party who seeks to examine a plaintiff for discovery may serve a notice of examination under rule 34.04 or interrogatories under rule 35.01 only after filing and serving a statement of defence and, unless the parties agree otherwise, serving an affidavit of documents.
31.04(2) A party who seeks to examine a defendant for discovery may serve a notice of examination under rule 34.04 or interrogatories under rule 35.01 only after,
(a) the defendant has filed and served a statement of defence and, unless the parties agree otherwise, the examining party has served an affidavit of documents; or
(b) the defendant has been noted in default.
31.04(3) The party who first serves on another party a notice of examination under rule 34.04 or interrogatories under rule 35.01 shall examine first before being examined by another party, unless the court orders or the parties agree otherwise.
ORAL EXAMINATION BY MORE THAN ONE PARTY
31.05 Where a person may be orally examined for discovery by more than one party, there shall be only one examination in which any adverse party may participate and any adverse party may initiate the examination unless the court orders or the parties agree otherwise.
SCOPE OF EXAMINATION
31.06(1) A person examined for discovery shall answer, to the best of the person's knowledge, information and belief, any proper question relating to any matter in issue in the action or to any matter made discoverable by subrules (2) to (4) and no question may be objected to on the ground that,
(a) the information sought is evidence;
(b) the question constitutes cross-examination unless the question is directed solely to the credibility of the witness; or
(c) the question constitutes cross-examination on the affidavit of documents of the party being examined.
Identity of persons having knowledge
31.06(2) A party may on an examination for discovery obtain disclosure of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action, unless the court orders otherwise.
31.06(3) A party may on an examination for discovery obtain disclosure of the findings, opinions and conclusions of an expert engaged by or on behalf of the party being examined that relate to a matter in issue in the action and of the expert's name and address, but the party being examined need not disclose the information or the name and address of the expert where,
(a) the findings, opinions and conclusions of the expert relating to any matter in issue in the action were made or formed in preparation for contemplated or pending litigation and for no other purpose; and
(b) the party being examined undertakes not to call the expert as a witness at the trial.
31.06(4) A party may on an examination for discovery obtain disclosure of
(a) the existence and contents of any insurance policy under which an insurer may be liable
(i) to satisfy all or part of a judgment in the action, or
(ii) to indemnify or reimburse a party for money paid in satisfaction of all or part of the judgment; and
(b) the amount of money available under the policy, and any conditions affecting its availability;
but no information concerning the insurance policy is admissible in evidence unless it is relevant to an issue in the action.
M.R. 6/98
31.06(5) Where information may become relevant only after the determination of an issue in the action and the disclosure of the information before the issue is determined would seriously prejudice a party, the court on the party's motion may grant leave to withhold the information until after the issue has been determined.
M.R. 150/89
EFFECT OF REFUSAL
May not use information at trial
31.07(1) Where a party, or a person examined for discovery on behalf of a party, has refused to answer a proper question or to answer a question on the ground of privilege, and has failed to furnish the information in writing not later than 10 days after the action is set down for trial, the party may not introduce at the trial the information refused on discovery, except with leave of the trial judge.
31.07(2) The sanction provided by subrule (1) is in addition to the sanctions provided by rule 34.14 (sanctions for default in examination).
31.08 Questions on an oral examination for discovery shall be answered by the person being examined but, where there is no objection, the question may be answered by the person's counsel and the answer shall be deemed to be the answer of the person being examined unless, before the conclusion of the examination, the person repudiates, contradicts or qualifies the answer.
INFORMATION SUBSEQUENTLY OBTAINED
31.09(1) Where a party has been examined for discovery or a person has been examined for discovery on behalf of, or in addition to the party, and the party subsequently discovers that the answer to a question on the examination,
(a) was incorrect or incomplete when made; or
(b) is no longer correct and complete;
the party shall forthwith provide the information in writing to every other party.
Consequence of correcting answers
31.09(2) Where a party provides information in writing under subrule (1),
(a) the writing may be treated at a hearing as if it formed part of the original examination of the person examined; and
(b) any adverse party may require that the information be verified by affidavit of the party or be the subject of further examination for discovery.
Sanction for failing to correct answers
31.09(3) Where a party has failed to comply with subrule (1) or a requirement under clause (2)(b), and the information subsequently discovered is,
(a) favourable to the party's case, the party may not introduce the information at the trial, except with leave of the trial judge; or
(b) not favourable to the party's case, the court may make such order as is just.
DISCOVERY OF NON-PARTIES WITH LEAVE
31.10(1) The court may grant leave, on such terms respecting costs and other matters as are just, to examine for discovery any person who there is reason to believe has information relevant to a material issue in the action, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation.
31.10(2) An order under subrule (1) shall not be made unless the court is satisfied that,
(a) the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the moving party seeks to examine;
(b) it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and
(c) the examination will not,
(i) unduly delay the commencement of the trial of the action,
(ii) entail unreasonable expense for other parties, or
iii) result in unfairness to the person the moving party seeks to examine.
31.10(3) The evidence of a person examined under this rule may not be read into evidence at trial under subrule 31.11(1).
USE OF EXAMINATION FOR DISCOVERY AT TRIAL
Reading in examination of party
31.11(1) At the trial of an action, a party may read into evidence as part of the party's own case against an adverse party any part of the evidence given on the examination for discovery of,
(a) the adverse party; or
(b) a person examined for discovery on behalf of, or in addition to the adverse party, unless the trial judge orders otherwise;
if the evidence is otherwise admissible, whether the party or person has already given evidence or not.
31.11(2) The evidence given on an examination for discovery may be used for the purpose of impeaching the testimony of the deponent as a witness in the same manner as any previous inconsistent statement by that witness.
31.11(3) Where only part of the evidence given on an examination for discovery is read into or used in evidence, at the request of an adverse party the trial judge may direct the introduction of any other part of the evidence that qualifies or explains the part first introduced.
31.11(4) A party who reads into evidence as part of the party's own case evidence given on an examination for discovery of an adverse party, or a person examined for discovery on behalf of or in addition to an adverse party, may rebut that evidence by introducing any other admissible evidence.
31.11(5) The evidence given on the examination for discovery of a party under disability may be read into or used in evidence at the trial only with leave of a judge.
31.11(6) The evidence given on the examination for discovery of an officer, director or employee of a corporation or of anyone having the control or management of a partnership or sole proprietorship, who has been dismissed from office or has left employment with the corporation, partnership or sole proprietorship, as the case may be, prior to the examination for discovery, may be read into or used in evidence at the trial only with leave of a judge.
31.11(7) Where a person examined for discovery,
(a) has died;
(b) is unable to testify because of infirmity or illness;
(c) for any other sufficient reason cannot be compelled to attend at the trial; or
(d) refuses to take an oath or make an affirmation or to answer any proper question,
any party may, with leave of the trial judge, read into evidence all or part of the evidence given on the examination for discovery as the evidence of the person examined, to the extent that it would be admissible if the person were testifying in court.
31.11(8) In deciding whether to grant leave under subrule (7), the trial judge shall consider,
(a) the general principle that evidence should be presented orally in court;
(b) the extent to which the person was cross-examined on the examination for discovery; and
(c) any other relevant factor.
31.11(9) The trial judge shall only grant leave to a party under subrule (7) where,
(a) the fact or facts sought to be proved through the examination for discovery are essential ingredients of the party's case which would fail without proof of such fact or facts;
(b) the fact or facts cannot be proved in any other manner; and
(c) the leave is restricted to the portion or portions of the examination for discovery which relate to the fact or facts.
31.11(10) Where an action has been discontinued or dismissed and another action involving the same subject matter is subsequently brought between the same parties or their representatives or successors in interest, the evidence given on an examination for discovery taken in the former action may be read into or used in evidence at the trial of the subsequent action as if it had been taken in the subsequent action.
DISCOVERY BEFORE COMMENCEMENT OF PROCEEDING
31.12(1) On such terms as may be just, the court on application may grant leave to any person to examine for discovery, before commencement of proceedings, any other person who may have information identifying an intended defendant.
31.12(2) An application under subrule (1) shall show that,
(a) the applicant may have a cause of action against the intended defendant;
(b) the applicant, having made reasonable inquiries, has been unable to identify the intended defendant; and
(c) the applicant has reason to believe that the person to be examined has knowledge of facts, or has possession, custody or control of documents or things identifying the intended defendant.
INSPECTION OF PROPERTY
ORDER FOR INSPECTION
32.01(1) The court may on motion make an order for the inspection of real or personal property where it appears to be necessary for the proper determination of an issue in a proceeding.
32.01(2) For the purpose of the inspection, the court may
(a) authorize entry on or into and the taking of temporary possession of any property in the possession of a party or of a person not a party;
(b) permit the measuring, surveying or photographing of the property in question, or of any particular object or operation on the property;
(c) permit the taking of samples, the making of observations or the conducting of tests or experiments; and
(d) permit any other act.
32.01(3) The order shall specify the time, place and manner of the inspection and may impose such other terms, including the payment of compensation, as are just.
32.01(4) Where the person in possession of the property is a party, no order for inspection shall be made without notice to the party unless,
(a) service of notice, or the delay necessary to serve notice, might entail serious consequences to the moving party; or
(b) the court dispenses with service of notice for any other sufficient reason.
32.01(5) Where the person in possession of the property is not a party no order for inspection shall be made without notice to the person.
PHYSICAL AND MENTAL EXAMINATION OF PARTIES
Motion for medical examination
33.01 A motion by an adverse party for an order under section 63 of The Court of Queen's Bench Act, for the physical or mental examination of a party whose physical or mental condition is in question in a proceeding shall be made on notice to every other party.
ORDER FOR EXAMINATION
33.02 The order may specify the time, place and purpose of the examination and shall name the practitioner or practitioners by whom it is to be conducted.
DISPUTE AS TO SCOPE OF EXAMINATION
33.03 The court may on motion determine any dispute relating to the conduct and scope of an examination.
PROVISION OF INFORMATION TO PARTY OBTAINING ORDER
33.04 The party to be examined shall, unless the court orders otherwise, provide the party obtaining the order,
(a) at least seven days before the examination,
(i) any written report made by a practitioner who has treated or examined the party to be examined in respect of the mental or physical condition in question, and
(ii) the results of any tests made with respect to the physical or mental condition in question including without restricting the generality of the foregoing, x-rays and other radiological investigations and analyses of bodily fluids; and
(b) following the examination, any such report or results with respect to examinations or tests related to the condition in question which were subsequently conducted.
33.05 No person other than the person being examined, the examining practitioner and such assistants as the practitioner requires for the purpose of the examination shall be present at the examination, unless the court orders otherwise.
MEDICAL REPORTS
33.06(1) After conducting an examination, the examining practitioner shall prepare a written report setting out his or her observations, the results of any tests made and his or her conclusions, diagnosis, and prognosis and shall forthwith provide the report to the party who obtained the order.
33.06(2) The party who obtained the order shall forthwith serve the report on every other party.
33.07 A party who fails to comply with section 63 of The Court of Queen's Bench Act, or an order made under that section or with rule 33.04 is liable, if a plaintiff or applicant, to have the proceeding dismissed or, if a defendant or respondent, to have the statement of defence or affidavit in response to the application struck out.
33.08 Rules 33.01 to 33.07 apply to a physical or mental examinations conducted on the consent in writing of the parties, except to the extent that they are waived by the consent.
33.09 The party obtaining an order under this rule shall be liable initially for the expense of the examination and the preparation and reproduction of any report but such expense may be included in fixing the costs to be awarded to that party, unless otherwise ordered.
PART VIII
EXAMINATION OUT OF COURT
PROCEDURE ON ORAL EXAMINATIONS
34.01 This Rule applies to,
(a) an oral examination for discovery under Rule 31;
(b) the taking of evidence before trial under rule 36.01, subject to rule 36.02;
(c) a cross-examination on an affidavit for use on a motion or application under rule 39.02;
(d) the examination out of court of a witness before the hearing of a pending motion or application under rule 39.03; and
(e) an examination in aid of execution under rule 60.17.
34.02 An oral examination to be held in Manitoba shall be held before,
(a) an official examiner;
(b) a master if ordered by the court after a hearing; or
(c) a person agreed on by the parties;
at a time and place fixed by the person before whom the examination is to be held.
M.R. 150/89; 50/2001
34.03 Where the person to be examined resides in Manitoba, the examination shall take place in the judicial centre nearest the place where the person resides, unless the court orders or the person to be examined and all the parties agree otherwise.
HOW ATTENDANCE REQUIRED
Party or person being examined on behalf of a party
34.04(1) Subject to subrule (1.1), where the person to be examined is a party to the proceeding, or is being examined on behalf of a party, a notice of examination (Form 34A) shall be served,
(a) on the party's lawyer of record; or
(b) where the party acts in person, on the party.
Order for examination in aid of execution
34.04(1.1) Where a person is to be examined in aid of execution, the party entitled to enforce the order
(a) shall obtain an order for examination in aid of execution (Form 34A.1) from the registrar after filing a requisition and an affidavit verifying that no examination has been held in the twelve month period before the date of the requisition; and
(b) shall serve the order in accordance with subrule 60.17(7).
34.04(2) Where a person is to be cross-examined on an affidavit, a notice of examination shall be served,
(a) on the lawyer for the party who filed the affidavit; or
(b) where the party who filed the affidavit acts in person, on the party.
34.04(3) Where the person to be examined is a former director, officer or employee of a party in Manitoba, the person shall be served with a subpoena to witness (Form 34B) personally and not by an alternative to personal service and a copy thereof shall be served on the party's lawyer, or where the party acts in person, on the party.
34.04(4) Where the person to be examined,
(a) is neither a party nor a person referred to in subrules (1), (2) or (3); and
(b) resides in Manitoba;
the person shall be served with a subpoena to witness personally and not by an alternative to personal service.
34.04(5) Attendance money calculated in accordance with Tariff "B" shall be paid or tendered to a party or witness at the time of service where,
(a) a notice of examination is served and the party or witness does not reside in the judicial centre where the examination is to take place; or
(b) a subpoena to witness is served.
34.04(6) Where the examination is in aid of execution under rule 60.18, no attendance money need be paid or tendered to the party or witness.
Subpoena may be issued in blank
34.04(7) On the request of a party or a lawyer and on payment of the prescribed fee, a registrar shall sign, seal and issue a blank subpoena to witness bearing the file number and title of the proceeding and the party or lawyer may complete the subpoena and insert the names of any number of persons to be examined.
34.04(8) Rule 53.05 applies to the securing of the attendance for examination of a person outside Manitoba and the attendance money paid or tendered to the person shall be calculated in accordance with The Interprovincial Subpoena Act.
34.04(9) Rule 53.06 applies to the securing of the attendance for examination of a person in custody.
NOTICE OF TIME AND PLACE
34.05(1) Where a person to be examined resides in Manitoba, the person shall be given not less than 10 days notice of the time and place of the examination, unless the court orders otherwise.
34.05(2) Every party to the proceeding other than the examining party, shall be given not less than 10 days notice of the time and place of the examination, unless the court orders otherwise.
34.06 A person to be examined and all the parties may consent to the time and place of the examination and,
(a) to the minimum notice period and form of notice; or
(b) to dispense with notice.
WHERE PERSON TO BE EXAMINED RESIDES OUTSIDE MANITOBA
Contents of order for examination
34.07(1) Where the person to be examined resides outside Manitoba, the court may determine,
(a) whether the examination is to take place in or outside Manitoba;
(b) the time and place of the examination;
(c) the minimum notice period;
(d) the person before whom the examination is to be conducted;
(e) the amount of attendance money to be paid to the person to be examined; and
(f) any other matter respecting the holding of the examination.
Commission and letter of request
34.07(2) Where the person is to be examined outside Manitoba, the order under subrule (1) shall, if the moving party requests it, provide for the issuing of,
(a) a commission (Form 34C) authorizing the taking of evidence before a named commissioner; and
(b) a letter of request (Form 34D) directed to the judicial authorities of the jurisdiction in which the person is to be found, requesting the issuing of such process as is necessary to compel the person to attend and be examined before the commissioner,
and the order shall be in Form 34E.
34.07(3) The commission and letter of request shall be issued by a registrar.
34.07(4) A commissioner shall preside over the examination which shall be conducted in the form of oral questions and answers in accordance with these rules, the law of evidence of Manitoba and the terms of the commission, unless some other form of examination is required by the order or the law of the place where the examination is conducted.
34.07(5) As soon as the transcript of the examination is prepared, the commissioner shall,
(a) return the commission, together with the original transcript and exhibits, to the registrar who issued it;
(b) keep a copy of the transcript and, where practicable, copies of the exhibits; and
(c) notify the parties who appeared at the examination that the transcript is complete and has been returned to the registrar who issued the commission.
34.07(6) Where a witness produces a book, document, letter, paper, or writing, and for good cause, to be stated in his deposition, refuses to part with the original, a copy or extract certified by the commissioner shall be annexed to the transcript.
Examining party to serve transcript
34.07(7) The registrar shall send the transcript to the lawyer for the examining party and the lawyer shall forthwith serve every other party with the transcript free of charge.
PERSON TO BE EXAMINED TO BE SWORN
34.08(1) Before being examined, the person to be examined shall take an oath or make an affirmation and, where the examination is conducted in Manitoba, the oath or affirmation shall be administered by a person authorized to administer oaths in Manitoba.
34.08(2) Where the examination is conducted outside Manitoba, the oath or affirmation may be administered by the person before whom the examination is conducted, a person authorized to administer oaths in Manitoba or a person authorized to take affidavits or administer oaths or affirmations in the jurisdiction where the examination is conducted.
34.08(3) Repealed.
M.R. 14/94
INTERPRETER
34.09(1) Where the person to be examined does not understand the language or languages in which the examination is to be conducted or is deaf or mute, a competent and independent interpreter shall, before the person is examined, take an oath or make an affirmation to interpret accurately the administration of the oath or affirmation and the questions to and answers of the person being examined.
34.09(2) Where an interpreter is required by subrule (1) for the examination of,
(a) a party or a person on behalf of a party, the party shall provide the interpreter;
(b) any other person, the examining party shall provide the interpreter.
PRODUCTION OF DOCUMENTS ON EXAMINATIONS
34.10(1) Subrule 30.01(1) (meaning of "document", "power") applies to subrules (2), (3) and (4).
Person to be examined must bring required documents and things
34.10(2) The person to be examined shall bring to the examination and produce for inspection,
(a) on an examination for discovery, all documents in the person's possession, control or power that are not privileged and that subrule 30.04(4) requires the person to bring; and
(b) on any examination, including an examination for discovery, all documents and things in the person's possession, control or power that are not privileged and that the notice of examination or subpoena to witness requires the person to bring.
Notice or subpoena may require documents and things
34.10(3) The notice of examination or subpoena to witness may require the person to be examined to bring to the examination and produce for inspection,
(a) all relevant documents and things that are in the person's possession, control or power and are not privileged; or
(b) such documents or things described in clause (a) as are specified in the notice or subpoena;
unless the court orders otherwise.
Duty to produce other documents
34.10(4) Where, on an examination, a person admits having possession or control of or power over any other relevant document that is not privileged, the person shall produce it for inspection by the examining party forthwith, if the person has the document at the examination, and if not, within two days thereafter, unless the court orders otherwise.
PERSON EXAMINED IN DIFFERENT CAPACITIES
34.11 At the same examination a person may be examined both in his or her personal capacity as a party and, where authorized by these rules, on behalf of a party.
RE-EXAMINATION
34.12(1) A person being examined for discovery may be re-examined by the person's own lawyer and by any party adverse in interest to the examining party and thereafter may be further examined by the examining party in relation to any matter respecting which he or she has been re-examined.
On cross-examination on affidavit or examination in aid of execution
34.12(2) A person being cross-examined on an affidavit or examined in aid of execution may be re-examined by the person's own lawyer.
34.12(3) The re-examination shall take place immediately after the examination or cross-examination and shall not take the form of a cross-examination.
On examination for motion or application
34.12(4) Re-examination of a witness examined,
(a) before the hearing of a motion or application, is governed by subrule 39.03(2); and
(b) at the hearing of a motion or application, is governed by subrule 39.03(4).
34.12(5) Re-examination of a witness examined before trial under Rule 36 is governed by subrule 36.02(2).
OBJECTIONS AND RULINGS
34.13(1) Where a question is objected to, the objector shall state briefly the reason for the objection, the questioner shall state briefly the justification for the question, and the question and the brief statements shall be recorded.
34.13(2) A question that is objected to may be answered with the objector's consent, and where the question is answered, a ruling may be obtained from the court before the evidence is used at a hearing.
34.13(3) A ruling on the propriety of a question that is objected to may be obtained on motion to the court and in adjudicating the propriety of the question the court will not be limited to considering only the reasons given for and against the objection at the examination.
34.13(4) At the hearing any party may object to the admissibility of any question and answer tendered, although no objection thereto was taken on the examination, and the court shall deal with the matter as if the question had been objected to and answered subject to objection.
SANCTIONS FOR DEFAULT OR MISCONDUCT
34.14(1) Where a person fails to attend at the time and place fixed for an examination in the notice of examination or subpoena to witness or at the time and place agreed on by the parties, or refuses to take an oath, to make an affirmation, to answer any proper question, to produce a document or thing that the person is required to produce or to comply with an order under rule 34.13, the court may,
(a) where an objection to a question is held to be improper, order or permit the person being examined to reattend at the person's own expense and answer the question, in which case the person shall also answer any proper questions arising from the answer;
(b) where the person is a party or, on an examination for discovery, a person examined on behalf of a party, dismiss the party's proceeding or strike out the party's defence;
(c) strike out all or part of the person's evidence, including any affidavit made by the person; and
(d) make such other order as is just.
34.14(2) Where a person does not comply with an order under rule 34.13 or subrule (1), a judge may make a contempt order against the person.
34.15 Every examination shall be recorded in its entirety in question and answer form by a court reporter in a manner that permits the preparation of a typewritten transcript of the examination, unless the court orders or the parties agree otherwise.
TYPEWRITTEN TRANSCRIPT
34.16(1) The court reporter who recorded an examination shall have a typewritten transcript of the examination prepared and completed
(a) in the case of an examination for discovery, within a reasonable time after a request by a party for a transcript; and
(b) in the case of a cross-examination on an affidavit, within a reasonable time after completion of the cross-examination.
34.16(2) The transcript shall be certified as correct by the court reporter and need not be read to or signed by the person examined.
Distribution of copies of transcript
34.16(3) The court reporter shall,
(a) in the case of an examination for discovery, send one copy of the transcript of the examination to each party who orders and pays for it and, on request and payment by a party, provide an additional copy for the use of the court; and
(b) in the case of a cross-examination on an affidavit, on payment by the examining party, send a sufficient number of copies of the transcript of the cross-examination to the examining party for service on all adverse parties and filing in the court.
FILING OF TRANSCRIPT OF EXAMINATION FOR DISCOVERY
Party to have transcript available
34.17(1) It is the responsibility of a party who intends to refer to evidence given on an examination for discovery to have the transcript of the examination available for filing with the court.
34.17(1.1) A party may file a portion of the transcript of an examination for discovery if the other parties consent.
M.R. 6/98; 50/2001
34.17(2) Where a party intends to refer to a transcript of an examination for discovery at a trial, the transcript for the use of the court need only be filed at the trial and then only when a party refers to it.
34.17(3) The transcript of an examination for discovery shall not be given to or read by the trial judge until a party refers to it at the trial, and the trial judge may read only those portions referred to by a party.
VIDEOTAPING OR OTHER RECORDING OF EXAMINATION
34.18(1) On consent of the parties or by order of the court, an examination may be recorded by videotape or other similar means and the tape or other recording may be filed for the use of the court along with the transcript.
34.18(2) Rule 34.17 applies, with necessary modifications, to a tape or other recording made under subrule (1).
34.19 On consent of the parties, an examination may be conducted by telephone conference or other electronic means.
INTRODUCING TRANSCRIPT OF EXAMINATION FOR DISCOVERY AS EVIDENCE
34.20 Any admissible part of the transcript of an examination for discovery may be placed in evidence at a trial or hearing,
(a) by reading it into the record;
(b) by inserting into the record parts of the transcript referred to by page and line or page and question number;
(c) by filing the whole or part of the transcript to form part of the record; or
(d) in any other manner that the court may direct.
TRANSCRIPT EVIDENCE OF ACCURACY OF RECORD
34.21 The questions and answers in a transcript of an examination shall be deemed to be an accurate record in the absence of evidence to the contrary.
PROCEDURE ON INTERROGATORIES
35.01 Interrogatories shall be conducted by serving a list of the questions to be answered (Form 35A) on the person to be examined and every other party.
ANSWERS
35.02(1) The interrogatories shall be answered by the affidavit (Form 35B) of the person being examined, served on the examining party within 15 days after service of the list of questions.
35.02(2) The examining party shall serve the answers on every other party forthwith.
35.03 An objection to answering an interrogatory shall be made in the affidavit of the person being examined, with a brief statement of the reason for the objection.
FAILURE TO ANSWER
35.04(1) Where an answer is unresponsive or incomplete or suggests a new line of questioning, the examining party may, within 10 days after receiving the answer, serve further interrogatories which shall be answered within 15 days after service.
Court order for further answers
35.04(2) Where the person being examined refuses or fails to answer a proper question or where the answer to a question is unresponsive or incomplete, the court may order the person to answer or give a further answer to the question or to answer any other question either by affidavit or on oral examination.
35.04(3) Where a person refuses or fails to answer a proper question on interrogatories or to produce a document that is required to be produced, the court may, in addition to imposing the sanctions provided in subrule (2),
(a) if the person is a party or a person examined on behalf of a party, dismiss the party's action or strike out the party's defence;
(b) strike out all or part of the person's evidence; and
(c) make such other order including a contempt order as is just.
35.05 Rules 34.17 and 34.20 apply, with necessary modifications, to the filing of interrogatories and answers for the use of the court.
35.06 This rule shall apply to minors and their litigation guardians; provided that a minor shall not be required to answer interrogatories unless he or she understands the nature of an oath or, if not, is possessed of sufficient intelligence and understands the duty of speaking the truth so as to justify the reception of unsworn evidence.
TAKING EVIDENCE BEFORE TRIAL
WHERE AVAILABLE
36.01(1) A party who intends to introduce the evidence of a person at trial may, with leave of the court or the consent of the parties, examine the person on oath or affirmation before trial for the purpose of having the person's testimony available to be tendered as evidence at the trial.
36.01(2) In exercising its discretion to order an examination under subrule (1), the court shall take into account,
(a) the convenience of the person whom the party seeks to examine;
(b) the possibility that the person will be unavailable to testify at the trial by reason of death, infirmity or sickness;
(c) the possibility that the person will be beyond the jurisdiction of the court at the time of the trial;
(d) the expense of bringing the person to the trial;
(e) whether the witness ought to give evidence in person at the trial; and
(f) any other relevant consideration.
36.01(3) Before moving for leave to examine an expert witness under subrule (1), the moving party shall serve on every other party the report of the expert witness referred to in subrule 53.03(1) (calling expert witness at trial) unless the court orders otherwise.
PROCEDURE
36.02(1) Subject to subrule (2), Rule 34 applies to the examination of a witness under rule 36.01, unless the court orders otherwise.
36.02(2) A witness examined under rule 36.01 may be examined, cross-examined and re-examined in the same manner as a witness at trial.
36.03 Where an order is made under rule 36.01 for the examination of a witness outside Manitoba, the order shall, if the moving party requests it, provide for the issuing of a commission and letter of request under subrules 34.07(2) and (3) for the taking of the evidence of the witness and, on consent of the parties, any other witness in the same jurisdiction, and the order shall be in Form 34E.
36.04 An examination under this rule may be held before a judge.
USE AT TRIAL
36.05(1) Any party may use at the trial the transcript and a videotape or other recording of an examination under this rule as the evidence of the witness, but, where the witness is available to give evidence at the trial, the transcript, videotape or other recording shall not be used as the evidence of the witness unless the court orders or the parties agree otherwise.
36.05(2) Use of evidence taken under rule 36.01 or 36.03 is subject to any ruling by the trial judge respecting admissibility.
36.05(3) The transcript and a videotape or other recording may be filed with the court at the trial and need not be read or played at the trial unless a party or the trial judge requires it.
PART IX
MOTIONS AND APPLICATIONS
MOTIONS - JURISDICTION AND PROCEDURE
37.01 A motion shall be made by notice of motion (Form 37A), unless the court orders otherwise.
JURISDICTION TO HEAR A MOTION
37.02(1) A judge has jurisdiction to hear any motion in a proceeding.
37.02(2) A master has jurisdiction to hear any motion in a proceeding, except a motion,
(a) where the power to grant the relief sought is conferred expressly on a judge by a statute or rule;
(b) to set aside, vary or amend an order of a judge;
(c) to abridge or extend a time prescribed by an order that a master could not have made;
(d) for judgment on consent in favour of or against a party under disability;
(e) relating to criminal proceedings or the liberty of the subject;
(f) in an appeal; or
(g) for interim relief in a family proceeding in respect of custody, access, support or property.
M.R. 31/91
TO WHOM MOTION TO BE MADE
37.03(1) Subject to subrule (2), a motion within the jurisdiction of a master shall be made to a master.
37.03(2) Where a motion is within the jurisdiction of a master and a master is not available at the centre at which the motion is to be heard or a judge grants leave to make the motion to a judge, the motion may be made to a judge.
M.R. 31/91
37.03(3) A motion pending before a master may be referred by the master to a judge for decision and the judge may dispose of the motion in whole or in part or refer the motion back in whole or in part.
37.04 A motion shall be filed in the administrative centre in which the court file is located.
PLACE AND DATE OF HEARING
37.05(1) The moving party shall name in the notice of motion as the place of hearing,
(a) where the court file is located in a judicial centre, that judicial centre; or
(b) where the court file is located in an administrative centre which is not a judicial centre, the judicial centre nearest that administrative centre.
37.05(2) The moving party shall name in the notice of motion as the date of hearing
(a) where the motion is to a master or other officer, such date as may be obtained from the master or other officer.
(b) where the motion is to a judge, and
(i) is not to be contested, or
(ii) the moving party is uncertain as to whether it will be contested, or
(iii) is to be contested and is urgent,
any date on which the court sits to hear motions;
(c) where the motion is to a judge and is to be contested, such date as may be obtained from the registrar.
SERVICE OF NOTICE
37.06(1) The notice of motion shall be served on any person or party who will be affected by the order sought, unless these rules provide otherwise.
37.06(2) Where the nature of the motion or the circumstances render service of the notice of motion impracticable or unnecessary, the court may make an order without notice.
Consent order without notice of motion
37.06(2.1) The court may make an order on consent without a notice of motion being filed.
37.06(3) Where the delay necessary to effect service might entail serious consequences, the court may make an interim order without notice.
37.06(4) Where an order is made without notice to a person or party affected by the order, the order, together with a copy of the notice of motion and all affidavits and other documents used at the hearing of the motion, shall be served forthwith on the person or party unless the court orders or these rules provide otherwise.
M.R. 6/98
Where notice ought to have been served
37.06(5) Where it appears to the court that the notice of motion ought to be served on a person who has not been served, the court may,
(a) dismiss the motion or dismiss it only against the person who was not served;
(b) adjourn the motion and direct that the notice of motion be served on the person; or
(c) direct that any order made on the motion be served on the person.
37.06(6) Where a motion is made on notice, the notice of motion shall be served at least four days before the date on which the motion is to be heard.
TIME FOR SERVICE
Where to master or other officer or uncontested
37.07(1) Where a motion is made on notice in any of the cases mentioned in clauses 37.05(2)(a) and (b), the notice of motion shall be served at least four days before the date on which the motion is to be heard.
37.07(2) Where a motion to a judge is to be contested and a date for the hearing of the motion has been obtained from the registrar, the notice of motion and the moving party's brief shall be served at least 14 days before the date on which the motion is to be heard.
M.R. 150/89
CONTESTED MOTIONS
To be adjourned for a hearing date
37.08(1) Subject to subrule (2), where a notice of motion to a judge has been served under subrule 37.07(1) and it transpires that the motion is to be contested, the judge shall adjourn the motion and the moving party may obtain a hearing date from the registrar.
Immediate hearing where urgent, etc.
37.08(2) In a case of urgency or where otherwise appropriate, the judge may proceed to hear the motion.
37.08(3) Where the motion is to a judge or master and is to be contested, the moving party shall, at the time of obtaining a hearing date, file in the judicial centre in which the motion is to be heard and serve on all other parties, a brief consisting of
(a) a list of any documents specifically identified, including filing date, filed in court to be relied upon by the moving party, unless the court orders that copies of all documents be filed as part of the brief;
(b) a list of any cases and statutory provisions to be relied on by the moving party, together with a statement as to the principle being relied upon in each case; and
(c) a list of the points to be argued.
M.R. 186/96
37.08(4) A responding party who has been served with a brief under subrule (1) shall, at least seven days before the hearing, file in the judicial centre in which the motion is to be heard and serve on all other parties, a brief consisting of,
(a) a list of any documents described in clause (3)(a), not included in the moving party's brief and to be relied on by the responding party;
(b) a list of cases and statutory provisions not included in the moving party's brief, to be relied on by the responding party, together with a statement as to the principle being relied upon in each case; and
(c) a list of the points to be argued by the responding party, not included in the moving party's brief.
M.R. 12/92; 186/96
37.08(5) The court may, either before or at the hearing of the motion, waive or vary the requirements of this rule where there is insufficient time to comply or where, due to the nature of the motion, a brief is not justified.
37.08(6) Repealed.
M.R. 186/96
HEARING BY TELEPHONE, VIDEO CONFERENCE OR OTHER MEANS OF COMMUNICATION
37.09(1) If all the parties to a motion consent and the court permits, a motion may be heard by telephone, video conference or other means of communication.
37.09(2) If not all the parties consent, the court may, on motion, make an order directing the manner in which the motion is to be heard.
37.09(3) The motion under subrule (2) to determine the manner of hearing a motion may be held
(a) without the necessity of filing a notice of motion or evidence; and
(b) by telephone, video conference or other means of communication.
37.09(4) Where a motion is to proceed by telephone, video conference or other means of communication under subrule (1) or clause (3)(b), the moving party shall make the necessary arrangements and give notice of those arrangements, including the date, time and manner of hearing, to the other parties to the motion and to the court.
37.10 On the hearing of a motion, the presiding judge or officer may allow, dismiss or adjourn the motion, in whole or in part, and with or without terms, and, in the alternative or in addition, may
(a) direct the trial of an issue, with such directions as are just, and adjourn the motion to be disposed of by the trial judge;
(b) where the proceeding is an action, order that it be set down for trial forthwith or within a specified period; or
(c) where the proceeding is an application, order that it be heard at such time and place and upon such terms as are just.
RESCINDING OR VARYING ORDERS
37.11(1) A person affected by an order made without notice, or a person who has failed to appear on a motion due to accident, mistake or insufficient notice, may, by notice of motion filed, served and made returnable promptly after the order first came to the person's notice, move to rescind or vary the order.
37.11(2) Where practicable, a motion under subrule (1) shall be made to the judge or officer who made the order.
Abandonment of motions, where not served
37.12(1) Where a party makes a motion by filing a Notice of Motion in accordance with this rule and has not served the Notice of Motion, the party may abandon the motion by filing a Notice of Abandonment of Motion (Form 37B) and an affidavit deposing that the Notice of Motion has not been served.
M.R. 25/90
Abandonment of motions, where served
37.12(2) Where a party makes a motion by filing and serving a Notice of Motion in accordance with this rule, the party may abandon the motion
(a) by serving a Notice of Abandonment of Motion on the parties who were served with the Notice of Motion; and
(b) by filing the Notice of Abandonment of Motion along with proof of service of the Notice of Abandonment of Motion.
M.R. 25/90
37.12(3) Where a party
(a) serves a Notice of Motion on another party and, within a reasonable time after serving the Notice, does not file the Notice; or
(b) files and serves a Notice of Motion and does not appear at the hearing of the motion; the party is deemed to have abandoned the motion unless the court orders otherwise.
M.R. 25/90
37.12(4) Where a motion is abandoned by a Notice of Abandonment of Motion under subrule (2) or is deemed to be abandoned under subrule (3), a party on whom the Notice of Motion is served is entitled to the costs of the motion, unless the court orders otherwise.
M.R. 25/90
APPLICATIONS - JURISDICTION AND PROCEDURE
38.01 This Rule applies to all proceedings under rule 14.05 which are commenced by a notice of application.
ISSUING OF NOTICE OF APPLICATION
38.02 A notice of application (Form 14B) shall be issued and filed as provided by rule 14.05, before it is served; and may be issued and filed in any administrative centre.
APPLICATIONS - TO WHOM TO BE MADE
38.03 All applications shall be made to a judge.
PLACE AND DATE OF HEARING
38.04(1) The applicant shall name in the notice of application as the place of hearing the judicial centre in which the applicant proposes the application to be heard.
38.04(2) The notice of application shall name as the hearing date any date on which a judge sits to hear applications where,
(a) the application is not to be contested; or
(b) the applicant is uncertain as to whether it will be contested; or
(c) the application is to be contested and is urgent.
38.04(3) Where the application is to be contested, the notice shall name such date as may be obtained from the registrar.
SERVICE OF NOTICE
38.05(1) The notice of application shall be served on all parties and, where it is uncertain whether anyone else should be served, the applicant may, without notice, make a motion to a judge for an order for directions.
Where notice ought to have been served
38.05(2) Where it appears to the judge hearing the application that the notice of application ought to be served on a person who has not been served, the judge may,
(a) dismiss the application or dismiss it only against the person who was not served;
(b) adjourn the application and direct that the notice of application be served on the person; or
(c) direct that any order made on the application be served on the person.
Time for service (uncontested or urgent)
38.05(3) In any of the cases mentioned in subrule 38.04(2), the noticed of application shall be served at least four days before the date of hearing of the application.
38.05(4) Where the application is to be contested, the notice of application and the applicant's brief shall be served at least 14 days before the date of hearing of the application.
TRANSFER OF APPLICATION
38.06(1) Where a notice of application is issued in a centre other than the judicial centre in which it is to be heard, the registrar shall forthwith forward the court file to the judicial centre named as the place of hearing.
Rule 14.08, excepting subrule (1), applies
38.06(2) Rule 14.08, excepting subrule (1) thereof, applies with necessary modification to the transfer of an application.
CONTESTED APPLICATION
To be adjourned for a hearing date
38.07(1) Subject to subrule 2, where a notice of application has been served under subrule 38.05(3) and it transpires that the application is to be contested, the judge shall adjourn the application and the applicant may obtain a hearing date from the registrar.
Immediate hearing where urgent, etc.
38.07(2) In case of urgency or where otherwise appropriate, the judge may proceed to hear the application.
38.07(3) Where the application is to be contested, the applicant shall, at the time of obtaining a hearing date, file in the judicial centre in which the application is to be heard and serve on all other parties, a brief consisting of
(a) a list of any documents, specifically identified, including filing date, filed in court to be relied on by the applicant, unless the court orders that copies of all documents be filed as part of the brief;
(b) a list of any cases and statutory provisions to be relied on by the applicant; and
(c) a list of the points to be argued.
38.07(4) A respondent party who has been served with a brief under subrule (1) shall, at least seven days before the hearing, file in the judicial centre in which the application is to be heard and serve on all other parties, a brief consisting of:
(a) a list of any documents described in clause (3)(a), not included in the applicant's brief and to be relied on by the respondent; and
(b) a list of items described in clauses (3)(b) and (c), not included in the applicant's brief, to be relied on by the respondent.
M.R. 12/92
38.07(5) A judge may, either before or at the hearing of the application waive or vary the requirements of this rule where there is insufficient time to comply or where, due to the nature of the application, a brief is not justified.
HEARING BY TELEPHONE, VIDEO CONFERENCE OR OTHER MEANS OF COMMUNICATION
38.08(1) If all the parties to an application consent and the court permits, an application may be heard by telephone, video conference or other means of communication.
38.08(2) If not all the parties consent, the court may, on motion, make an order directing the manner in which the application is to be heard.
38.08(3) The motion under subrule (2) to determine the manner of hearing an application may be held
(a) without the necessity of filing a notice of motion or evidence; and
(b) by telephone, video conference or other means of communication.
38.08(4) Where an application under subrule (1) or a motion under clause (3)(b) is to proceed by telephone, video conference or other means of communication, the applicant or the moving party, as the case may be, shall make the necessary arrangements and give notice of those arrangements, including the date, time and manner of hearing, to the other parties and to the court.
38.09 On hearing an application, a judge may,
(a) allow or dismiss the application or adjourn the hearing, with or without terms; or
(b) where satisfied that there is a substantial dispute of fact, direct that the application proceed to trial or direct the trial of a particular issue or issues and, in either case, give such directions and impose such terms as may be just, subject to which the proceeding shall thereafter be treated as an action.
SETTING ASIDE OR VARYING ORDER WITHOUT NOTICE
38.10(1) A person affected by an order made without notice, or a person who has failed to appear on an application due to accident, mistake or insufficient notice, may, by notice of motion filed, served and made returnable promptly after the order first came to the person's notice, move to set aside or vary the order.
38.10(2) Where practicable, a motion under subrule (1) shall be made to the judge who made the order.
Abandonment of applications, where not served
38.11(1) Where a party makes an application by filing a Notice of Application (Form 14B) in accordance with this rule and has not served the Notice of Application, the party may abandon the application by filing a Notice of Abandonment of Application (Form 38A) and an affidavit deposing that the Notice of Application has not been served.
M.R. 25/90
Abandonment of applications, where served
38.11(2) Where a party makes an application by filing and serving a Notice of Application (Form 14B) in accordance with this rule, the party may abandon the application
(a) by serving a Notice of Abandonment of Application on the parties who were served with the Notice of Application; and
(b) by filing the Notice of Abandonment of Application along with proof of service of the Notice of Abandonment of Application.
M.R. 25/90
Deemed abandonment of applications
38.11(3) Where a party files and serves a Notice of Application (Form 14B) and does not appear at the hearing of the application, the party is deemed to have abandoned the application, unless the court orders otherwise.
M.R. 25/90
Costs on abandoned applications
38.11(4) Where an application is abandoned by a Notice of Abandonment of Application under subrule (2) or is deemed to be abandoned under subrule (3), a party on whom the Notice of Application (Form 14B) is served is entitled to the costs of the application, unless the court orders otherwise.
M.R. 25/90
DISMISSAL OF APPLICATION FOR DELAY
38.12(1) The court may on motion dismiss an application for delay.
M.R. 26/97
38.12(2) On hearing a motion under this rule, the court may consider,
(a) whether the applicant has unreasonably delayed in obtaining a date for a hearing of a contested application;
(b) whether there is a reasonable justification for any delay;
(c) any prejudice to the respondent; and
(d) any other relevant factor.
M.R. 26/97
Dismissal not a defence to subsequent application
38.12(3) The dismissal of an application for delay is not a defence to a subsequent application unless the order dismissing the application provides otherwise.
M.R. 26/97
38.12(4) Where an applicant's application has been dismissed for delay with costs, and another application involving the same subject matter is subsequently brought between the same parties or their representatives or successors in interest before payment of the costs of the dismissed application, the court may order a stay of the subsequent application until the costs of the dismissed application have been paid.
M.R. 26/97
EVIDENCE ON MOTIONS AND APPLICATIONS
EVIDENCE BY AFFIDAVIT
39.01(1) Evidence on a motion or application may be given by affidavit unless a statute or these rules provide otherwise.
39.01(2) Where a motion or application is made on notice, the affidavits on which the motion or application is founded shall be served within the time for service of the motion or application, and shall be filed in the court office where the motion or application is to be heard not later than 2 p.m. on the day before the hearing.
39.01(3) All affidavits to be used at the hearing in opposition to a motion or application or in reply shall be served and filed in the court office where the motion or application is to be heard not later than 2 p.m. on the day before the hearing.
39.01(4) An affidavit for use on a motion may contain statements of the deponent's information and belief, if the source of the information and the fact of the belief are specified in the affidavit.
39.01(5) An affidavit for use on an application may contain statements of the deponent's information and belief with respect to facts that are not contentious, if the source of the information and the fact of the belief are specified in the affidavit.
Full and fair disclosure on motion or application without notice
39.01(6) Where a motion or application is made without notice, the moving party or applicant shall make full and fair disclosure of all material facts, and failure to do so is in itself sufficient ground for setting aside any order obtained on the motion or application.
Affidavits on intended proceedings
39.01(7) An affidavit for use on an intended application or preliminary motion may be sworn before the application or preliminary motion is filed.
EVIDENCE BY CROSS-EXAMINATION ON AFFIDAVIT
39.02(1) Where a party to a motion or application has served every affidavit on which the party intends to rely and has completed all examinations under rule 39.03, the party may cross-examine the deponent of any affidavit served by a party who is adverse in interest on the motion or application.
39.02(2) A party who has cross-examined on an affidavit filed by an adverse party shall not subsequently file an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to a matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination under rule 39.03.
M.R. 150/89
To be exercised with reasonable diligence
39.02(3) The right to cross-examine shall be exercised with reasonable diligence, and the court may refuse an adjournment of a motion or application for the purpose of cross-examination where the party seeking the adjournment has failed to act with reasonable diligence.
39.02(4) A party who cross-examines on an affidavit shall
(a) order copies of the transcript for the court and the party being examined if a trial or hearing date is set for the proceeding;
(b) file a copy of the transcript with the court;
(c) provide the party being examined with a copy of the transcript, free of charge; and
(d) other than on a motion for summary judgment or a contempt order, pay the party and party costs of the party being examined in respect of the cross-examination, regardless of the outcome of the proceeding, unless the court orders otherwise.
EVIDENCE BY EXAMINATION OF A WITNESS
39.03(1) Subject to subrule 39.02(2), a person, other than an expert, may be examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript of the person's evidence available for use at the hearing.
39.03(2) A witness examined under subrule (1) may be cross-examined by the examining party and any other party and may then be re-examined by the examining party on matters raised by other parties, and the re-examination may take the form of cross-examination.
To be exercised with reasonable diligence
39.03(3) The right to examine shall be exercised with reasonable diligence, and the court may refuse an adjournment of a motion or application for the purpose of an examination where the party seeking the adjournment has failed to act with reasonable diligence.
39.03(4) With leave of the presiding judge or officer, a person may be examined at the hearing of a motion or application in the same manner as at a trial.
39.03(5) The attendance of a person to be examined under subrule (1) may be compelled in the same manner as provided in Rule 53 for a witness at a trial.
EVIDENCE BY EXAMINATION FOR DISCOVERY
39.04 On the hearing of a motion, an examination for discovery in the proceeding may be used in evidence and rule 31.11 (use of discovery at trial) applies, with necessary modifications.
PART X
PRESERVATION OF RIGHTS IN PENDING LITIGATION
INTERLOCUTORY INJUNCTION
40.01 An interlocutory injunction under section 55 of The Court of Queen's Bench Act may be obtained on motion to a judge,
(a) by a party to a proceeding; and
(b) in a situation of urgency and with leave of the judge, by a person who undertakes to commence proceedings forthwith.
WHERE MOTION MADE WITHOUT NOTICE
40.02(1) Where an interlocutory injunction is granted on motion without notice, it may be made for a period not exceeding 10 days from the date the injunction is granted.
M.R. 127/94
40.02(2) Where an interlocutory injunction is granted on a motion without notice, a motion to extend the injunction may be made only on notice to every party affected by the injunction, unless the judge is satisfied that because a party has been evading service or because there are other exceptional circumstances, the injunction ought to be extended without notice to the party.
40.02(3) Where an extension is granted on motion without notice, it may be made for a further period not exceeding 10 days from the date the extension is granted.
M.R. 127/94
40.03 On a motion for an interlocutory injunction, the moving party shall, unless the court orders otherwise, undertake to abide by any order concerning damages that the court may make if it ultimately appears that the granting of the order has caused damage to the responding party for which the moving party ought to compensate the responding party.
APPOINTMENT OF RECEIVER
41.01 In rules 41.02 to 41.06, "receiver" means a receiver or receiver and manager.
41.02 The appointment of a receiver under section 55 of The Court of Queen's Bench Act may be obtained on motion to a judge,
(a) by a party to a proceeding; and
(b) in a situation of urgency and with leave of the judge, by a person who undertakes to commence proceedings forthwith.
41.03 An order appointing a receiver shall,
(a) name the person appointed or refer that issue in accordance with Rule 54;
(b) specify the amount and terms of the security, if any, to be furnished by the receiver for the proper performance of duties, or refer that issue in accordance with Rule 54;
(c) state whether the receiver is also appointed as manager and, if necessary, define the scope of managerial powers; and
(d) contain such directions and impose such terms as are just.
REFERENCE OF CONDUCT OF RECEIVERSHIP
41.04 An order appointing a receiver may refer the conduct of all or part of the receivership in accordance with Rule 54.
41.05 A receiver may obtain directions at any time on motion to a judge, unless there has been a reference of the conduct of the receivership, in which case the motion shall be made to the master who has conduct of the reference.
41.06 A receiver may be discharged only by the order of a judge.
PENDING LITIGATION ORDERS
HOW OBTAINED
42.01(1) A pending litigation order (Form 42A) under section 58 of The Court of Queen's Bench Act may be obtained on motion to the court with supporting affidavit evidence and may be registered in a land titles office.
M.R. 25/90; 120/2006
Claim for order to be in originating process
42.01(2) A party who seeks a pending litigation order shall include a claim for it in the originating process or pleading that commences the proceeding, together with a description of the land in question sufficient for registration.
42.01(3) A motion under subrule (1) may be made without notice.
42.01(4) A party who obtains an order under subrule (1) shall forthwith serve it, together with a copy of the notice of motion and all affidavits and other documents used at the hearing of the motion, on all parties against whom an interest in land is claimed.
M.R. 6/98
DISCHARGE OF PENDING LITIGATION ORDER
42.02(1) The court may, on motion at any time, make an order discharging a pending litigation order,
(a) where the party at whose instance it was made,
(i) claims a sum of money which, in the opinion of the court, is a satisfactory alternative to the interest in the land claimed,
(ii) does not have a reasonable claim to the interest in the land claimed, or
(iii) does not prosecute the proceeding with reasonable diligence;
(b) where the interests of the party at whose instance it was made can be adequately protected by another form of security; or
(c) on any other ground which is considered just;
and the court may, in making the order, impose such terms as to the giving of security or otherwise as is considered just.
42.02(2) Where,
(a) the proceeding in which the pending litigation order was made,
(i) has been discontinued, or
(ii) has been dismissed or otherwise finally disposed of insofar as the land affected by the pending litigation order is concerned and there has been no appeal of the dismissal or disposal and the time for appeal has expired; or
(b) the parties' consent to discharge of the pending litigation order has been filed;
the registrar shall, on requisition, issue a certificate in Form 42B discharging the pending litigation order.
42.02(3) An order under subrule (1) or a certificate under subrule (2) may be filed in the land titles office in which the pending litigation order was registered, and registration of the pending litigation order is thereupon discharged.
INTERPLEADER
43.01 In this Rule,
"property" means personal property and includes a debt; (« biens »)
"writ of execution" and "execution" include any order of the court, whether made before or after judgment, under which a sheriff seizes or holds property. (« bref d'exécution » ou « exécution »)
43.02 Where two or more persons make adverse claims in respect of property against a person who,
(a) claims no beneficial interest in the property, other than a lien for costs, fees or expenses; and
(b) is willing to deposit the property with the court or dispose of it as the court directs;
that person may seek an interpleader order (Form 43A).
HOW OBTAINED
By application where no proceeding commenced
43.03(1) Where no proceeding has been commenced in respect of the property in question, a person seeking an interpleader order shall, notwithstanding rule 38.03, make an application to the court naming all the claimants as respondents and shall, in the notice of application, require them to attend the hearing to substantiate their claims.
By motion where proceeding has been commenced
43.03(2) Where a proceeding has been commenced in respect of the property, a person seeking an interpleader order shall make a motion in the proceeding to the court on notice to all the claimants and shall, in the notice of motion, require them to attend the hearing to substantiate their claims.
43.03(3) The application or motion shall be supported by an affidavit identifying the property and containing the names and addresses of all claimants to the property of whom the deponent has knowledge and stating that the applicant or moving party,
(a) claims no beneficial interest in the property, other than a lien for costs, fees or expenses;
(b) does not collude with any of the claimants; and
(c) is willing to deposit the property with the court or dispose of it as the court directs.
DISPOSITION OF APPLICATION OR MOTION
43.04(1) On the hearing of an application or motion for an interpleader order, the court may,
(a) order that the applicant or moving party deposit the property with an officer of the court, sell it as the court directs or, in the case of money, pay it into court to await the outcome of a specified proceeding;
(b) declare that, on compliance with an order under clause (a), the liability of the applicant or moving party in respect of the property or its proceeds is extinguished;
(c) order a claimant to be made a party to a proceeding already commenced in substitution for or in addition to the moving party;
(d) order the trial of an issue between the claimants, define the issue to be tried and direct which claimant is to be plaintiff and which defendant;
(e) where the question is one of law and the facts are not in dispute, decide the question without directing the trial of an issue;
(f) on the request of a claimant, determine the rights of the claimants in a summary manner, if, having regard to the value of the property and the nature of the issues in dispute, it seems desirable to do so;
(g) where a claimant fails to attend the hearing, or attends and fails to comply with an order made in the course of the proceeding, make an order declaring that the claimant and all persons claiming under the claimant are forever barred from prosecuting a claim against the applicant or moving party and all persons claiming under the applicant or moving party, without affecting the rights of the claimants as between themselves;
(h) stay any further step in a proceeding in respect of the property;
(i) order that the costs of the applicant or moving party be paid out of the property or its proceeds; and
(j) make such other order as is just.
43.04(2) Where an application or motion for an interpleader order is made to a master and raises a genuine issue of fact or of law, the motion shall be adjourned to be heard by a judge.
SHERIFF'S INTERPLEADER
Sheriff may move in respect of property seized
43.05(1) A sheriff may make a motion for an interpleader order (Form 43B) in respect of property or the proceeds of property taken or intended to be taken by the sheriff in the execution of any enforcement process where,
(a) the sheriff has received a claim in respect of the property; and either
(b) an execution creditor has given the sheriff notice under subrule 60.12(2) disputing the claim; or
(c) the execution creditor at whose direction the sheriff took or intended to take the property has not given the notice required by subrule 60.12(2) within the time prescribed by that subrule.
43.05(2) The sheriff shall make only one motion in respect of the property.
43.05(3) The motion may be made in any proceeding in which a writ of execution was issued against the debtor, subject to subrule (6), and shall name as responding parties every claimant and all execution creditors, even though their executions were not issued in the same proceeding.
Sale of property that is security for debt
43.05(4) Where personal property has been seized in execution by a sheriff, and a claimant claims to be entitled to the property as security for a debt, the court may order a sale of the property and direct that the proceeds of sale or an amount sufficient to answer the claim be paid into court pending determination of the claim.
43.05(5) The fact that a sheriff is entitled to indemnification in any form with respect to execution does not disentitle the sheriff to an order under subrule (1).
43.05(6) Where a sheriff has an execution issued by any court other than the Court of Queen's Bench and has no execution issued by the Court of Queen's Bench, the sheriff shall seek the interpleader order by way of application in the judicial centre for which he or she has been appointed and subrules (2) to (5) apply with necessary modification.
43.05(7) Rules 43.02 to 43.04 apply with necessary modification to a sheriff's interpleader.
INTERIM RECOVERY OF PERSONAL PROPERTY
MOTION FOR INTERIM ORDER
44.01(1) An interim order under section 59 of The Court of Queen's Bench Act for recovery of possession of personal property may be obtained on motion by the plaintiff, supported by an affidavit setting out,
(a) a description of the property sufficient to make it readily identifiable;
(b) the value of the property;
(c) that the plaintiff is the owner or lawfully entitled to possession of the property;
(d) that the property was unlawfully taken from the possession of the plaintiff or is unlawfully detained by the defendant; and
(e) the facts and circumstances giving rise to the unlawful taking or detention.
44.01(2) The notice of motion shall be served on the defendant unless the court is satisfied that there is reason to believe that the defendant may improperly attempt to prevent recovery of possession of the property or that, for any other sufficient reason, the order should be made without notice.
ORDER TO CONTAIN DESCRIPTION AND VALUE OF PROPERTY
44.02 An interim order for recovery of possession of personal property shall contain a description of the property sufficient to make it readily identifiable and shall state the value of the property.
DISPOSITION OF MOTION
44.03(1) On a motion for an interim order for recovery of possession of personal property made on notice to the defendant, the court may,
(a) order the plaintiff to pay into court as security twice the value of the property as stated in the order, or such other amount as the court directs, or to give the sheriff security in such form and amount as the court approves, and direct the sheriff to take the property from the defendant and give it to the plaintiff;
(b) order the defendant to pay into court as security twice the value of the property as stated in the order, or such other amount as the court directs, or to give the plaintiff security in such form and amount as the court approves, and direct that the property remain in the possession of the defendant; or
(c) make such other order as is just.
44.03(2) On a motion for an interim order for the recovery of possession of personal property made without notice to the defendant, the court may,
(a) order the plaintiff to pay into court as security twice the value of the property as stated in the order, or such other amount as the court directs, or to give the sheriff security in such form and amount as the court approves, and direct the sheriff to take and detain the property for a period of 10 days after service of the interim order on the defendant before giving it to the plaintiff; or
(b) make such other order as is just.
CONDITION AND FORM OF SECURITY
44.04(1) Where an interim order for the recovery of possession of personal property requires either party to give security, the condition of the security shall be that the party providing the security will return the property to the opposite party without delay when ordered to do so, and pay any damages and costs the opposite party has sustained by reason of the interim order.
44.04(2) Where the security is by bond, the bond shall be in Form 44B and shall remain in force until the security is released under rule 44.06.
44.04(3) Where the bond is given without a surety or where the surety is a person other than a person authorized under The Insurance Act to enter into a contract of guarantee insurance, the person giving the bond and surety, if any, shall first be approved by the court.
44.05 The court on motion may set aside or vary an interim order for the recovery of possession of personal property or stay enforcement of the order.
44.06 Any security furnished pursuant to an order made under rule 44.03 may be released on the filing of the written consent of the parties or by order of the court.
DUTY OF THE SHERIFF
44.07(1) Before proceeding to enforce an interim order for the recovery of possession of personal property, the sheriff shall ascertain that any security required by the order has been given.
44.07(2) The sheriff shall serve the order on the defendant when the property or any part of it is recovered or as soon thereafter as is possible.
44.07(3) Where the sheriff is unable to comply with the order, or it is dangerous to do so, the sheriff may move for directions from the court.
44.07(4) The sheriff shall, without delay after attempting to enforce the order and in any event within 10 days after service of the order, report to the plaintiff on what property has been recovered and, where the sheriff has failed to recover possession of all of the property, on what property has not been recovered and the reason for the failure to recover it.
WHERE DEFENDANT PREVENTS RECOVERY
44.08 Where the sheriff reports that the defendant has prevented the recovery of all or part ofthe property, the court may, on motion by the plaintiff, make an order directing,
(a) the sheriff to take any other personal property of the defendant, to the value of the property that the sheriff was prevented from recovering, and give it to the plaintiff; and
(b) the plaintiff to hold the substituted property until the defendant surrenders to the plaintiff the property that the sheriff was prevented from recovering.
INTERIM PRESERVATION OF PROPERTY
INTERIM ORDER FOR PRESERVATION OR SALE
45.01(1) The court may make an interim order for the custody or preservation of any property in question in a proceeding or relevant to an issue in a proceeding, and for that purpose may authorize entry on or into any property in the possession of a party or of a person not a party.
45.01(2) Where the property is of a perishable nature or likely to deteriorate or for any other reason ought to be sold, the court may order its sale in such manner and on such terms as are just.
45.02 Where the right of a party to a specific fund is in question, the court may order the fund to be paid into court or otherwise secured on such terms as are just.
RECOVERY OF PERSONAL PROPERTY HELD AS SECURITY
45.03(1) Where in a proceeding a party from whom the recovery of personal property is claimed does not dispute the title of the party making the claim, but claims the right to retain the property as security for a debt, the court may order the party claiming recovery of the property to pay into court or otherwise give security for the debt and such further sum, if any, for interest and costs as the court directs.
45.03(2) The affidavit in support of a motion under subrule (1) shall disclose the name of every person asserting a claim to possession of the property of whom the party claiming recovery has knowledge and every such person shall be served with notice of the motion.
45.03(3) On compliance with an order under subrule (1), the property shall be given to the party claiming recovery and the money in court or the security shall await the outcome of the proceeding.
ATTACHMENT AND GARNISHMENT BEFORE JUDGMENT
MOTION FOR ATTACHING ORDER
Motion with affidavit in support
46.01(1) An attaching order under section 60 of The Court of Queen's Bench Act may be obtained by the plaintiff on motion to the court supported by an affidavit stating,
(a) facts showing,
(i) the plaintiff has a good cause of action against the defendant whose property is to be attached, and
(ii) the existence of one or more of the grounds of attachment as set out in section 60 of The Court of Queen's Bench Act;
(b) the amount of the plaintiff's claim with allowance for all just credits, set-offs and counterclaims known to the plaintiff; and
(c) the present whereabouts of the defendant or, if the defendant is a corporation, partnership or sole proprietorship, the location of the head or chief office.
46.01(2) A motion under subrule (1) may be made without notice.
DISPOSITION OF MOTION
46.02(1) On a motion for an attaching order, the court may by order (Form 46A),
(a) direct the sheriff to attach, seize, receive, hold and dispose of as provided by this Rule, all personal property, or specific personal property described in the order, in which the defendant has an interest;
(b) order the attachment of any real property in which the defendant has an interest;
(c) order the plaintiff to pay into court as security twice the amount claimed by the plaintiff or such other amount as the court directs, or to give the sheriff security in such form and amount as the court approves; and
(d) make such other order as is just.
46.02(2) An attaching order shall be valid for a period of 90 days from the date it is made or for such other period as the court may order and no property shall be attached after expiry of this period, but this shall not limit the validity of the order in respect of anything previously done thereunder or the right of the court to make a further attaching order in respect of the same or other property.
M.R. 127/94
SHERIFF TO ENFORCE ORDER ATTACHING PERSONAL PROPERTY
46.03(1) Before proceeding to enforce an order attaching personal property, the sheriff shall ascertain that any security required by the order has been given.
46.03(2) The sheriff shall serve the order on the defendant when personal property is attached, or as soon thereafter as is possible.
46.03(3) The sheriff shall, without delay after attempting to enforce the order and in any event within 10 days after service of the order, send to the plaintiff,
(a) where personal property has been attached, an inventory describing the property attached, including its value; and
(b) where the order attaching personal property has not been enforced, a report giving reasons for failure to enforce the order.
46.04 Where, for any reason, an order attaching personal property has not been enforced, the court may, on motion by the plaintiff at any time prior to judgment,
(a) give directions to the sheriff with respect to enforcing the order;
(b) order a person to disclose any information that person possesses regarding real or personal property attachable under the order; or
(c) make such other order as may be just.
46.05 Unless otherwise ordered by the court, the party obtaining an attaching order shall pay to the sheriff any sheriff's costs, including the cost of seizure and storage, as such costs become due and payable by the sheriff.
RESTORATION OF PROPERTY BY SHERIFF
46.06 Where an attaching order has been made, the sheriff may restore the personal property seized, or any part of it, to the defendant upon
(a) payment to the sheriff of the amount required to satisfy the plaintiff's claim together with all costs; or
(b) being fully indemnified by bond (Form 46C) for the value of the property attached, the sufficiency of which shall be approved by the sheriff.
DISPUTE OF OWNERSHIP OF PROPERTY ATTACHED BY SHERIFF
46.07 Where ownership of personal property or the proceeds of property taken or intended to be taken by the sheriff under an attaching order is claimed by a person other than the defendant, rule 60.12 applies with necessary modification.
PROPERTY IN POSSESSION OF THIRD PERSON
46.08(1) The sheriff may attach any personal property of the defendant, or in which the defendant has an interest, in the possession of a third person and which cannot be immediately attached, by serving the attaching order upon the third person.
46.08(2) The third person, within 10 days after being served with the attaching order and from time to time thereafter as any such additional property becomes available for delivery or payment, shall,
(a) deliver the property to the sheriff and any such delivery shall release the third person from any liability to the defendant with respect to the value of the property so delivered; or
(b) when the delivery is not made under clause (a), or the value of any property so delivered is not sufficient to satisfy the claim, or when the sheriff in writing demands it,
(i) file with the sheriff a statement that describes and gives the location of any such property in the possession of the third person, states the approximate value of the interest of the defendant therein and the date when any payment in respect thereof becomes payable to the defendant, and gives the name and address of any other person with an interest in the property and the nature of that interest, and
(ii) pending further order of the court, retain possession of the property and withhold payment of any debt, rent, legacy, share, bond, debenture or other security, currency, or other demand;
and the amount of the claim shall become a lien on the property held by the third person from the time of the service of the order upon the third person or on the subsequent acquisition of any property by the third person.
SALE OR DISPOSAL PRIOR TO JUDGMENT
46.09 The court may order the sale or other disposition of all or part of the attached property in such manner and upon such terms as are just where,
(a) the property is of a perishable nature or likely to deteriorate;
(b) the keeping of the property may result in unreasonable loss or expense; or
(c) the property for any other reason ought to be sold.
46.10 The sheriff shall hold and safely keep the attached personal property to satisfy any writ of seizure and sale issued to enforce any judgment obtained against the defendant in the proceeding unless,
(a) the parties agree in writing to release of the property;
(b) the property is restored to the defendant under rule 46.06;
(c) the property is disposed of by order under rule 46.09; or
(d) otherwise ordered by the court under rule 46.13.
DISPOSITION OF PROPERTY
Levy against attached property
46.11(1) Where a plaintiff obtains judgment against a defendant whose personal property has been attached, and a writ of seizure and sale has been received, the sheriff may levy against the attached personal property in accordance with rule 60.07.
46.11(2) When,
(a) personal property of a defendant has been attached by the sheriff under this Rule; and
(b) a plaintiff in another action, whether the action was commenced before or after the date of the first attaching order, obtains an attaching order against the same defendant;
the court may, on motion by the plaintiff,
(c) order the sheriff to stay further proceedings respecting the first attaching order pending disposition of the other action; or
(d) make such other order as is just.
46.12 A certified copy of an order under clause 46.01(b) attaching real property may be registered in a land titles office under subsection 75(7) of The Real Property Act.
VARIATION OF ATTACHING ORDER
46.13(1) Where an attaching order has been made and,
(a) the party at whose instance it was made does not prosecute the proceeding with reasonable diligence;
(b) the interests of the party at whose instance it was made can be adequately protected by another form of security; or
(c) it is considered just on other grounds,
the court may, on motion at any time, make an order,
(d) setting aside or varying the attaching order;
(e) staying enforcement of the attaching order;
(f) requiring that security be given by any party;
(g) directing that specified property or property of a specified type or value be attached or released;
(h) setting out such other terms as are just; and
(i) where the attaching order has been registered in a land titles office under rule 46.12, discharging the registration.
46.13(2) An order under clause (1)(i), discharging registration of an attaching order in a land titles office, may be filed in the land titles office in which the attaching order was registered, and registration of the attaching order is thereupon discharged.
GARNISHMENT BEFORE JUDGMENT
Motion with affidavit in support
46.14(1) An order (Form 46D) under section 61 of The Court of Queen's Bench Act authorizing garnishment before judgment may be obtained by the plaintiff on motion to the court supported by an affidavit stating,
(a) facts showing the plaintiff has a good cause of action against the defendant for payment of a debt or liquidated demand;
(b) the amount of the plaintiff's claim, with allowance for all just credits, set-offs and counterclaims known to the plaintiff;
(c) the name and address of each person to whom a notice of garnishment is to be directed;
(d) that the plaintiff believes those persons are or will become indebted to the defendant, and the grounds for the belief; and
(e) such particulars of the debts as are known to the plaintiff.
46.14(2) A motion under subrule (1) may be made without notice.
46.14(3) An order under subrule (1) (Form 46D) may include,
(a) a requirement that the plaintiff post security in a form and amount to be determined by the court; and
(b) such other terms and conditions as may be just.
Issue of notice of garnishment
46.14(4) On filing an order under subrule (3), together with two copies of each notice of garnishment (before judgment) (Form 46E) with garnishee's notice (Form 46F), the registrar, upon ascertaining that the required security has been posted and any other terms and conditions have been met, shall issue a notice of garnishment for each person named in the order, and shall return a copy of each notice to the plaintiff.
46.14(5) Rule 60.08 applies, with necessary modification, to a notice of garnishment issued under subrule (4).
46.14(6) On motion by the defendant, where it is shown by affidavit that,
(a) the defendant has a defence on the merits to the plaintiff's claim; and
(b) in the circumstances, garnishment before judgment is unjust or imposes undue hardship on the defendant;
the court may,
(c) order that the notice of garnishment be revoked;
(d) order that any money paid into court pursuant to the notice of garnishment be paid out of court to the defendant;
(e) order that the plaintiff or the defendant post security in a form and amount to be determined by the court; and
(f) make such other order as is just.
CONDITION AND FORM OF SECURITY
46.15(1) Where an order under this Rule requires the plaintiff to give security, it shall be a condition of the security that the plaintiff,
(a) prosecute the proceeding without delay; and
(b) when ordered by the court, pay to the defendant the amount secured or such lesser amount as may be required to pay any damages and costs sustained by reason of the attaching order or garnishment.
46.15(2) Where an order under this Rule requires the defendant to give security, it shall be a condition of the security that the defendant,
(a) upon the plaintiff obtaining judgment against the defendant, pay to the sheriff the amount secured by the bond or such lesser amount as is required to satisfy executions against the defendant; and
(b) comply with any other order of the court.
46.15(3) Where the security is by bond, the bond (Form 46B or 46C, as the case may be) shall remain in force until the security is released or varied on the written consent of the parties or by order of the court on motion.
46.15(4) Where the bond is given without a surety or where the surety is a person other than a person authorized under The Insurance Act to enter into a contract of guarantee insurance, the person giving the bond and surety, if any, shall first be approved by the court.
Release or variation of security
46.15(5) Any security furnished pursuant to an order under this Rule may be released or varied on the filing of the written consent of the parties or by order of the court.
PART XI
PRE-TRIAL PROCEDURES
PLACE OF TRIAL
47.01 The place of trial shall be,
(a) where the court file is located in a judicial centre, that judicial centre; or
(b) where the court file is located in an administrative centre which is not a judicial centre, the judicial centre nearest to the administrative centre.
47.02 A judge may, on motion, order that the trial be held at a place other than that required by rule 47.01 where the judge is satisfied that,
(a) the balance of convenience substantially favours the holding of the trial at another place; or
(b) it is just that the trial be held at another place.
SETTING DOWN FOR TRIAL
When and by whom action set down
48.01(1) When an action is ready for trial any party may initiate the procedure for setting the action down for trial by,
(a) filing a trial record prepared in accordance with rule 48.02;
(b) when the action is other than a family proceeding, depositing with the court a pre-trial brief prepared in accordance with subrule 50.01(3);
(b.1) when the action is a family proceeding, depositing with the court a pre-trial brief prepared in accordance with subrule 70.26(5);
(c) obtaining from the registrar a date for a pre-trial conference; and
(d) within seven days of obtaining a date under clause (c) and at least 15 days before the date, serving copies of the trial record and the pre-trial brief, together with a Notice for Pre-trial Conference (Form 48A) on each party to the proceeding.
M.R. 150/89; 93/2005
48.01(2) A party served with a notice for pre-trial conference may, within seven days after service upon that party of the notice, move before a judge for an order setting aside the pre-trial conference date and fixing another date therefor; if no such motion is made, the date for the pre-trial conference will become fixed.
48.01(3) Unless otherwise ordered by a judge, a pre-trial conference will be required in all cases, and no trial date will be given until a pre-trial conference has been held.
48.01(4) If at a pre-trial conference a judge considers that the action is ready for trial, he or she may forthwith fix a date for the trial of the action, and no further notification to the parties of the date will be required; if the judge considers that the action is not ready for trial, he or she may adjourn the case to another date for a further pre-trial conference, or may make any other order as is just.
48.02 The trial record shall contain, in the following order,
(a) a table of contents, describing each document by its nature and date;
(b) a copy of the pleadings;
(c) a copy of any request or order for particulars and the particulars delivered in response;
(d) a copy of any notice of amounts and particulars of special damages delivered under clause 25.06(13)(b);
(e) a copy of any order respecting the conduct of the trial; and
(f) if the action has been discontinued or dismissed, or judgment has been signed, as against any party, a copy of the notice of discontinuance, order of dismissal, or judgment, as the case may be.
48.03(1) This Rule and Rule 50 (Pre-Trial Conference) apply with necessary changes to jury trials under The Jury Act.
48.03(2) Where, upon an order of a judge, an action or issue may be tried by a jury, the order shall be obtained prior to the pre-trial conference unless the court otherwise directs.
48.03(3) Where there is to be a jury trial, the jury fee shall be paid prior to the pre-trial conference unless the court otherwise directs.
M.R. 150/89
OFFER TO SETTLE
49.01 In this Rule,
"defendant" includes a respondent and a responding party; (« défendeur »)
"plaintiff" includes an applicant and a moving party. (« demandeur »)
M.R. 98/95
WHERE AVAILABLE
49.02(1) A party to a proceeding may make an offer to settle any one or more of the claims in the proceeding by serving on any other party an offer to settle on specified terms (Form 49A).
M.R. 98/95
49.02(2) Subrule (1) and rules 49.03 to 49.14 apply to a motion with such modifications as the circumstances require.
M.R. 98/95
49.03 An offer to settle may be made at any time, but where
(a) an offer to settle relating to a motion is made less than three days before the hearing of the motion commences; or
(b) an offer to settle relating to a proceeding is made less than seven days before the hearing of the proceeding commences;
the cost consequences referred to in rule 49.10 do not apply.
M.R. 98/95
WITHDRAWAL OR EXPIRY OF OFFER
49.04(1) An offer to settle may be withdrawn at any time before it is accepted by serving written notice of withdrawal of the offer on the party to whom the offer was made.
49.04(2) The notice of withdrawal of the offer may be in Form 49B.
Offer expiring after limited time
49.04(3) Where an offer to settle specifies a time within which it may be accepted and it is not accepted or withdrawn within that time, it shall be deemed to have been withdrawn when the time expires.
49.05 An offer to settle shall be deemed to be an offer made without admission of liability and without prejudice.
DISCLOSURE OF OFFER TO COURT
49.06(1) No statement of the fact that an offer to settle has been made shall be contained in any pleading.
49.06(2) Where an offer to settle is not accepted, no communication respecting the offer shall be made to the court at the hearing of the motion or proceeding until all questions of liability and the relief to be granted, other than costs, have been determined.
M.R. 98/95
49.06(3) An offer to settle shall not be filed until all questions of liability and the relief to be granted in the motion or proceeding, other than costs, have been determined.
M.R. 98/95
ACCEPTANCE OF OFFER
49.07(1) An offer to settle may be accepted by serving an acceptance of offer (Form 49C) on the party who made the offer, at any time before it is withdrawn or expires.
49.07(2) Where a party to whom an offer to settle is made rejects the offer or responds with a counter-offer that is not accepted, the party may thereafter accept the original offer to settle, unless it has been withdrawn or has expired.
Payment into court or to trustee as term of offer
49.07(3) An offer by a plaintiff to settle a claim in return for the payment of money by a defendant may include a term that the defendant pay the money into court or to a trustee and the defendant may accept the offer only by paying the money in accordance with the offer and notifying the plaintiff of the payment.
Payment into court or to trustee as a condition of acceptance
49.07(4) Where a defendant offers to pay money to the plaintiff in settlement of a claim the plaintiff may accept the offer with the condition that the defendant pay the money into court or to a trustee and, where the offer is so accepted and the defendant fails to pay the money in accordance with the acceptance, the plaintiff may proceed as provided in rule 49.09 for failure to comply with the terms of an accepted offer.
49.07(5) Where an accepted offer to settle does not provide for the disposition of costs, the plaintiff is entitled,
(a) where the offer was made by the defendant, to party and party costs assessed to the date the plaintiff was served with the offer; or
(b) where the offer was made by the plaintiff, to party and party costs assessed to the date that the notice of acceptance was served.
M.R. 150/89
Incorporating into judgment or order
49.07(6) Where an offer is accepted, the court may incorporate any of its terms into a judgment or order.
M.R. 98/95
49.07(7) Where money is paid into court under subrule (3) or (4), it may be paid out on consent or by order.
49.08 A party under disability may make, withdraw and accept an offer to settle, but no acceptance of an offer made by the party and no acceptance by the party of an offer made by another party is binding on the party under disability until the settlement has been approved as provided in rule 7.08.
FAILURE TO COMPLY WITH ACCEPTED OFFER
49.09 Where a party to an accepted offer to settle fails to comply with the terms of the offer, the other party may,
(a) make a motion to a judge for judgment or an order in the terms of the accepted offer, and the judge may grant judgment or make an order accordingly; or
(b) continue the motion or proceeding as if there had been no accepted offer to settle.
M.R. 98/95
COST CONSEQUENCES OF FAILURE TO ACCEPT OFFER
Plaintiff's offer not accepted
49.10(1) Where
(a) an offer to settle
(i) that relates to a motion is made by a plaintiff at least three days before the commencement of the hearing, or
(ii) that relates to a proceeding is made by a plaintiff at least seven days before the commencement of the hearing;
(b) the offer to settle is not withdrawn and does not expire before the commencement of the hearing;
(c) the offer to settle is not accepted by the defendant; and
(d) the plaintiff obtains a judgment or order as favourable as or more favourable than the terms of the offer to settle;
the plaintiff is entitled to party and party costs to the date the offer to settle was served and double the party and party costs from that date, unless the court orders otherwise.
M.R. 98/95
Defendant's offer not accepted
49.10(2) Where
(a) an offer to settle
(i) that relates to a motion is made by a defendant at least three days before the commencement of the hearing, or
(ii) that relates to a proceeding is made by a defendant at least seven days before the commencement of the hearing;
(b) the offer to settle is not withdrawn and does not expire before the commencement of the hearing;
(c) the offer to settle is not accepted by the plaintiff; and
(d) the plaintiff obtains a judgment or order as favourable as or less favourable than the terms of the offer to settle;
the plaintiff is entitled to party and party costs to the date the offer to settle was served and the defendant is entitled to party and party costs from that date, unless the court orders otherwise.
M.R. 98/95
49.11 Where there are two or more defendants, the plaintiff may offer to settle with any defendant and any defendant may offer to settle with the plaintiff, but where the defendants are alleged to be jointly or jointly and severally liable to the plaintiff in respect of a claim and rights of contribution or indemnity may exist between the defendants, the costs consequences prescribed by rule 49.10 do not apply to an offer to settle unless,
(a) in the case of an offer made by the plaintiff, the offer is made to all the defendants, and is an offer to settle the claim against all the defendants; or
(b) in the case of an offer made to the plaintiff,
(i) the offer is an offer to settle the plaintiff's claim against all the defendants and to pay the costs of any defendant who does not join in making the offer, or
(ii) the offer is made by all the defendants and is an offer to settle the claim against all the defendants, and, by the terms of the offer, they are made jointly and severally liable to the plaintiff for the whole amount of the offer.
OFFER TO CONTRIBUTE
49.12(1) Where two or more defendants are alleged to be jointly or jointly and severally liable to the plaintiff in respect of a claim, any defendant may make to any other defendant an offer to contribute (Form 49D) toward a settlement of the claim.
49.12(2) The court may take an offer to contribute into account in determining whether another defendant should be ordered,
(a) to pay the costs of the defendant who made the offer;
(b) to indemnify the defendant who made the offer for any costs the defendant is liable to pay to the plaintiff; or
to do both (a) and (b).
49.12(3) Rules 49.04, 49.05, 49.06 and 49.13 apply to an offer to contribute as if it were an offer to settle.
49.13 Notwithstanding rules 49.03, 49.10 and 49.11, the court, in exercising its discretion with respect to costs, may take into account any offer to settle made in writing, the date the offer was made and the terms of the offer.
APPLICATION TO COUNTERCLAIMS, CROSSCLAIMS, AND THIRD PARTY CLAIMS
49.14 Rules 49.01 to 49.13 apply, with necessary modifications, to counterclaims, crossclaims and third party claims.
PRE-TRIAL CONFERENCE
50.01(1) A pre-trial conference shall take place before a judge to consider,
(a) the identification and simplification of the issues to be tried;
(b) the necessity or desirability of any amendments;
(c) the possibility of any admissions which might facilitate the trial or hearing;
(d) the estimated duration of the trial or hearing;
(e) the advisability of directing a reference;
(f) the quantum of damages;
(g) the possibility of settlement of any or all of the issues in the action; or
(h) any other matters that may aid in the disposition of the proceeding and the attainment of justice.
Consent orders and uncontested matters
50.01(2) A judge at a pre-trial conference may make consent orders and may hear or dispose of a proceeding or an issue in a proceeding where the proceeding or issue is not contested.
M.R. 150/89
50.01(3) When obtaining a date for a pre-trial conference, a party shall deposit with the court a pre-trial brief that
(a) includes a concise statement of the factual and legal issues in the proceeding;
(b) includes a list of the authorities on which the party intends to rely;
(c) includes copies of documents that would be of assistance to the judge at the conference; and
(d) complies with the requirements of subrule 53.03(1);
(e) repealed, M.R 93/2005.
M.R. 150/89; 93/2005
50.01(4) Not less than 10 days prior to the conference, every other party shall deposit with the court and serve on the other parties a pre-trial brief consisting of the items described in subrule (3).
M.R. 150/89
50.01(5) Unless otherwise directed by the court, counsel who propose to conduct the trial or hearing of the action shall attend the pre-trial conference.
M.R. 69/99
Consequences of failure to attend
50.01(6) Where counsel or a party who is required to personally attend a pre-trial conference fails to attend a pre-trial conference, the judge may make any order as to costs which is deemed just, and may fix a date for a further pre-trial conference.
50.01(7) Repealed.
M.R. 150/89.
50.01(8) Following a pre-trial conference, the judge
(a) shall issue a memorandum setting out the results of the conference and indicating the issues that are resolved and the issues requiring a trial or hearing; and
(b) may, by order, give such directions as the judge considers necessary or advisable for purposes of the proceeding.
M.R. 150/89
Memorandum or order to be filed and sent out
50.01(8.1) A memorandum or order under subrule (8) shall be filed and sent to the parties or their lawyers and, subject to subrule (8.2), is binding on the parties unless the judge presiding at the trial or hearing orders otherwise to prevent an injustice.
M.R. 150/89
Re-opening of pre-trial conferences
50.01(8.2) Where a party objects to a matter set out in a memorandum issued under subrule (8), the party shall, within 14 days following receipt of the memorandum, notify the court and the other parties of the objection and may request that the pre-trial conference be re-opened to address the objection and the judge who presided at the pre-trial conference may re-open the pre-trial conference for purposes of addressing the objection.
M.R. 150/89
50.01(9) Discussions at a pre-trial conference are without prejudice and shall not be referred to in subsequent motions or at the trial of the action except as disclosed in the memorandum or order under subrule (8).
Pre-trial judge not to preside at trial
50.01(10) A judge who presides at a pre-trial conference in a proceeding shall not, except with the consent of the parties, preside at the trial or the hearing.
M.R. 150/89
Documents to be made available
50.01(11) All documents including examinations for discovery which may be of assistance in achieving the purpose of a pre-trial conference shall be made available to the judge conducting the conference and the judge may direct the production of such documents for use at the conference. On the request of a party, all such documents shall be returned to the parties following the conference, except any documents which the parties agree may be retained for the use of the trial judge.
50.01(12) Unless otherwise ordered by the judge conducting a pre-trial conference, the cost of the conference shall be costs in the cause.
Conference before a trial judge
50.01(13) Nothing in this Rule prevents a judge before whom an action has been called for trial from holding a conference, either before or during the trial or hearing, without disqualifying himself from presiding at the trial or hearing.
50.01(14) A judge may direct a pre-trial conference to be held by telephone.
ADMISSIONS
51.01 In rules 51.02 to 51.06, "authenticity" includes the fact that,
(a) a document that is said to be an original was printed, written, signed or executed as it purports to have been;
(b) a document that is said to be a copy is a true copy of the original; and
(c) where the document is a copy of a letter, telegram or telecommunication, the original was sent as it purports to have been sent and received by the person to whom it is addressed.
REQUEST TO ADMIT FACT OR DOCUMENT
51.02(1) A party may, by serving a request to admit (Form 51A), request any other party to admit, for the purposes of the proceeding only, the truth of a fact or the authenticity of a document, and the request shall be served at least 20 days before the hearing.
51.02(2) A copy of any document mentioned in the request to admit shall, where practicable, be served with the request, unless a copy is already in the possession of the other party.
EFFECT OF REQUEST TO ADMIT
Response required within 20 days
51.03(1) A party on whom a request to admit is served shall respond to it within 20 days after it is served by serving on the requesting party a response to request to admit (Form 51B).
Deemed admission where no response
51.03(2) Where the party on whom the request is served fails to serve a response as required by subrule (1), the party shall be deemed, for the purposes of the proceeding only, to admit the truth of the facts or the authenticity of the documents mentioned in the request to admit.
Deemed admission where party responds
51.03(3) A party shall also be deemed, for the purposes of the proceeding only, to admit the truth of the facts or the authenticity of the documents mentioned in the request, unless the party's response,
(a) specifically denies the truth of a fact or the authenticity of a document as mentioned in the request; or
(b) refuses to admit the truth of a fact or the authenticity of a document and sets out the reason for the refusal.
51.04 Where a party denies or refuses to admit the truth of a fact or the authenticity of a document after receiving a request to admit, and the fact or document is subsequently proved at the hearing, the court may take the denial or refusal into account in exercising its discretion respecting costs.
51.05 An admission made in response to a request to admit, a deemed admission under rule 51.03 or an admission in a pleading may be withdrawn on consent or with leave of the court.
ORDER BASED ON ADMISSION OF FACT OR DOCUMENT
51.06(1) Where an admission of the truth of a fact or the authenticity of a document is made,
(a) in an affidavit filed by a party;
(b) in the examination for discovery of a party or a person examined for discovery on behalf of a party; or
(c) by a party on any examination under oath or affirmation in or out of court;
any party may make a motion to a judge in the same or another proceeding for such order as the party may be entitled to on the admission without waiting for the determination of any other question between the parties, and the judge may make such order as is just.
Admission in pleading or response to request
51.06(2) Where an admission of the truth of a fact or the authenticity of a document is made by a party in a pleading or is made or deemed to be made by a party in response to a request to admit, any party may make a motion in the same proceeding to a judge for such order as the party may be entitled to on the admission without waiting for the determination of any question between the parties, and the judge may make such order as is just.
Exception — deemed undertaking
51.06(3) If Rule 30.1 (deemed undertaking) applies to the admission, its use in another proceeding is subject to Rule 30.1.
M.R. 43/2003
PART XII
TRIALS
TRIAL PROCEDURE
FAILURE TO ATTEND AT TRIAL
52.01(1) Where all the parties fail to attend a trial, the trial judge may adjourn the trial or may dismiss the claim and counterclaim, if any.
52.01(2) Where a party fails to attend a trial, the trial judge may,
(a) adjourn the trial;
(b) proceed with the trial in the absence of the party;
(c) where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim;
(d) where the defendant attends and the plaintiff fails to attend, dismiss the action and allow the defendant to prove the counterclaim, if any; or
(e) make such other order as is just.
52.01(3) A judge may set aside or vary, on such terms as are just, a judgment obtained against a party who failed to attend at the trial.
52.02 A judge may postpone or adjourn a trial to such time and place, and on such terms as are just.
COURT APPOINTED EXPERTS
52.03(1) On motion by a party, or on the judge's own initiative, a judge may, at any time, appoint one or more independent experts to inquire into and report on any question of fact or opinion relevant to an issue in the action.
Agreement by parties, where possible
52.03(2) The expert shall be named by the judge and, where possible, shall be an expert agreed on by the parties.
Contents of order appointing expert
52.03(3) The order shall contain the instructions to be given to the expert and the judge may make such further orders as is considered necessary to enable the expert to carry out the instructions, including, on motion by a party, an order for,
(a) inspection of property under Rule 32; or
(b) the physical or mental examination of a party under section 63 of The Court of Queen's Bench Act.
52.03(4) The remuneration of an expert shall be fixed by the judge who appoints the expert, and shall include a fee for the expert's report and an appropriate sum for each day that attendance at the trial is required, and the judge may, as a condition of making the appointment, require the parties or any of them to pay or give security for the payment of the expert's remuneration.
52.03(5) The expert shall prepare a report and send it to the registrar and the registrar shall send a copy of the report to every party.
52.03(6) The report shall be filed as evidence at the trial of the action unless the trial judge orders otherwise.
52.03(7) The judge may direct the expert to make a further or supplementary report, and subrules (5) and (6) apply to that report.
52.03(8) Any party may cross-examine the expert at the trial.
Liability of parties for remuneration of expert
52.03(9) The liability of the parties for payment of the remuneration of the expert shall be determined by the trial judge at the end of the trial, and a party who has paid the expert in accordance with a determination under subrule (4), if not the party determined to be liable for payment under this subrule, shall be indemnified by the party determined to be liable.
EXHIBITS
52.04(1) Exhibits shall be marked and numbered consecutively, and the registrar or clerk attending the trial shall make a list of the exhibits, giving a description of each exhibit and stating by whom it was put in evidence and, where the person who produced it is not a party or the party's lawyer, the name of that person.
52.04(2) Exhibits shall be marked thus:
The Queen's Bench
Smith v. Roe
This exhibit (the property of) is produced by the
_________, the _____ day of__________, 19___. ____________________
Deputy Registrar
(or Clerk)
52.04(3) At any time following the trial judgment, on requisition by the lawyer or party who put an exhibit in evidence or the person who produced it and on the filing of the consent of all parties represented at the trial, the registrar may return the exhibit to the person making the requisition.
52.04(4) Subject to subrule (3), the exhibits shall remain in the possession of the registrar or the registrar of the court to which an appeal is taken,
(a) until the time for an appeal has expired; or
(b) where an appeal has been taken, until it has been disposed of.
52.04(5) On the expiration of the time for appeal or on the disposition of the appeal, the registrar on his or her own initiative shall return the exhibits to the respective lawyers or parties who put the exhibits in evidence at the trial.
52.05 The judge or judge and jury by whom an action is being tried may, in the presence of the parties or their counsel, inspect any property concerning which any question arises in the action, or the place where the cause of action arose.
EXCLUSION OF WITNESSES
52.06(1) The trial judge may, at the request of any party, order that a witness be excluded from the courtroom until called to give evidence, subject to subrule (2), and may exclude the testimony of any witness or party who does not conform to such order.
Order not to apply to person instructing counsel
52.06(2) An order under subrule (1) may not be made in respect of a party to the action or a witness whose presence is essential to instruct counsel for the party calling the witness, but the trial judge may require any such party or witness to give evidence before any other witnesses are called to give evidence on behalf of that party.
Exclusion of persons interfering with trial
52.06(3) Nothing in this rule prevents the trial judge from excluding from the courtroom any person who is interfering with the proper conduct of the trial.
ORDER OF PRESENTATION IN TRIALS
52.07(1) On the trial of an action, the order of presentation, unless directed otherwise by the court, shall be regulated as follows:
(a) the plaintiff shall be given the first opportunity to make an opening address, and may do so;
(b) after the plaintiff has made, or has declined the opportunity to make, an opening address, the defendant may make an opening address;
(c) the plaintiff shall proceed first and adduce evidence;
(d) when the plaintiff's evidence is concluded, the defendant may make an opening address if the defendant has not already done so and may adduce evidence;
(e) when the defendant's evidence is concluded, the plaintiff may adduce whatever evidence which may properly be called in reply;
(f) at the conclusion of the evidence the plaintiff may make a closing address followed by the closing address of the defendant and the rebuttal address of the plaintiff.
52.07(2) Where the burden of proof in respect of all matters in issue in the action lies on the defendant, the trial judge may reverse the order of presentation.
52.07(3) Where there are two or more defendants separately represented, the order of presentations shall be directed by the trial judge.
52.07(4) Where a party is represented by counsel, the right to address the court shall be exercised by counsel.
DISAGREEMENT OF THE JURY
52.08(1) Where the jury,
(a) disagrees;
(b) makes no finding on which judgment can be granted; or
(c) answers some but not all of the questions directed to it or gives conflicting answers, so that judgment cannot be granted on its findings;
the trial judge may direct that the action be retried with another jury at the same or any subsequent sitting, but where there is no evidence on which a judgment for the plaintiff could be based or where for any other reason the plaintiff is not entitled to judgment, the judge shall dismiss the action.
Judgment on some, but not all, claims
52.08(2) Where the answers given by a jury are sufficient to entitle a party to judgment on some but not all of the claims in the action, the judge may grant judgment on the claims in respect of which the answers are sufficient, and subrule (1) applies to the remaining claims.
52.09 The verdict of a jury shall be endorsed on the court file.
FAILURE TO PROVE A FACT OR DOCUMENT
52.10 Where, through accident, mistake or other cause, a party fails to prove some fact or document material to the party's case,
(a) the judge may proceed with the trial subject to proof of the fact or document afterwards at such time and on such terms as the judge directs; or
(b) where the case is being tried by a jury, the judge may direct the jury to find a verdict as if the fact or document had been proved, and the verdict shall take effect on proof of the fact or document afterwards as directed, and, if it is not so proved, judgment shall be granted to the opposite party, unless the judge directs otherwise.
52.11 Damages in respect of any continuing cause of action shall be assessed down to the time of assessment.
EVIDENCE AT TRIAL
EVIDENCE BY WITNESSES
53.01(1) Unless these rules provide otherwise, witnesses at the trial of an action shall be examined orally in court and the examination may consist of direct examination, cross-examination and re-examination.
Leading questions on direct examination
53.01(2) Where a witness appears unwilling or unable to give responsive answers, the trial judge may permit the party calling the witness to examine the witness by means of leading questions.
53.01(3) Where a witness does not understand the language or languages in which the examination is to be conducted or is deaf or mute, a competent and independent interpreter shall, before the witness is called, take an oath or make an affirmation to interpret accurately the administration of the oath or affirmation to the witness, the questions put to the witness and the answers of the witness.
53.01(4) Where an interpreter is required under subrule (3), the party calling the witness shall provide the interpreter.
EVIDENCE OTHER THAN BY PERSONAL ATTENDANCE
53.02(1) On motion, before or at the trial of an action, the trial judge may make an order allowing the evidence of a witness or proof of a particular fact or document to be given in such manner as may be specified by the trial judge.
53.02(2) Where an order is made under subrule (1) before the trial, it may be set aside or varied by the trial judge where it appears necessary to do so in the interest of justice.
EXPERT WITNESSES
53.03(1) A party who intends to call an expert witness at trial shall include as part of the party's pre-trial brief a copy of a report, signed by the expert, setting out the expert's name, address and qualifications, and the substance of the proposed testimony.
M.R. 150/89
53.03(2) The report is admissible in evidence but any party to the action may serve notice in writing on the party tendering the report not less than 10 days before the trial requiring the expert who prepared and signed the report to be called as a witness and may cross-examine him or her on the report; and it shall be the responsibility of the party tendering the report to subpoena and pay for the attendance of the expert but the court may include the costs of such subpoena and attendance as an item of taxable costs.
53.03(3) Subject to section 50 of The Manitoba Evidence Act (dealing with medical reports) no report is admissible in evidence and no expert may testify, except with leave of the trial judge, unless subrule (1) has been complied with.
COMPELLING ATTENDANCE AT TRIAL
53.04(1) A party who requires the attendance of a person in Manitoba as a witness at a trial may serve the person with a subpoena (Form 53A) requiring him or her to attend the trial at the time and place stated in the subpoena, and the subpoena may also require the person to produce at the trial the documents or other things in his or her possession, control or power relating to the matters in question in the action that are specified in the subpoena.
Subpoena may be issued in blank
53.04(2) On the request of a party or a lawyer and on payment of the prescribed fee, a registrar shall sign, seal and issue a blank subpoena bearing the file number and title of the proceeding and the party or lawyer may complete the subpoena and insert the names of any number of witnesses.
Where document may be proved by certified copy
53.04(3) No subpoena for the production of an original record or document that may be proved by a certified copy shall be served without leave of the court.
Subpoena to be served personally
53.04(4) A subpoena shall be served on the witness personally and not by an alternative to personal service and, at the same time, attendance money calculated in accordance with Tariff "B" shall be paid or tendered to the witness.
53.04(5) Service of a subpoena to witness and the payment or tender of attendance money may be proved by affidavit.
Subpoena in effect until attendance no longer required
53.04(6) A subpoena continues to have effect until the attendance of the witness is no longer required.
53.04(7) Where a witness whose evidence is material to an action is served with a subpoena and the proper attendance money is paid or tendered to him or her, and the witness fails to attend at the trial or to remain in attendance in accordance with the requirements of the subpoena, the presiding judge may by a warrant for arrest (Form 53B) cause the witness to be apprehended anywhere within Manitoba and forthwith brought before the court.
53.04(8) On being apprehended, the witness may be detained in custody until his or her presence is no longer required, or released on such terms as are just, and the witness may be ordered to pay the costs arising out of the failure to attend or remain in attendance.
53.05 A subpoena to a witness outside Manitoba to compel attendance under The Interprovincial Subpoena Act shall be in Form 53C.
COMPELLING ATTENDANCE OF WITNESS IN CUSTODY
53.06 The court may make an order (Form 53D) for attendance of a witness in custody whose evidence is material to an action, directing the officer having custody of a prisoner to produce him or her, for an examination authorized by these rules or as a witness at a hearing.
CALLING ADVERSE PARTY AS WITNESS
53.07(1) A party may secure the attendance of a person who is,
(a) an adverse party;
(b) an officer, director or sole proprietor of an adverse party; or
(c) a partner in a partnership that is an adverse party;
as a witness at a trial by,
(d) serving the person with a subpoena; or
(e) serving on the adverse party or the lawyer for the adverse party, at least 10 days before the commencement of the trial, a notice of intention to call the person as a witness;
and at the same time paying or tendering attendance money calculated in accordance with Tariff "B".
53.07(2) A party may secure the attendance of a person who is a former officer, director, sole proprietor or partner of an adverse party by serving the person with a subpoena under rule 53.04.
When adverse party may be called
53.07(3) Where a person referred to in subrules (1) or (2) is in attendance at the trial, a party may call the person as a witness without previous subpoena or notice or the payment of attendance money, unless,
(a) the person has already testified; or
(b) the adverse party or the party's counsel undertakes to call the person as a witness.
Cross-examination by party calling a witness
53.07(4) A party calling a witness pursuant to subrules (1) or (2) may cross-examine him or her, unless, in the case of a party referred to in subrule (2), the court otherwise orders.
Cross-examination by other parties
53.07(5) After the witness has been examined, he or she may be cross-examined by his or her own counsel, or by counsel for his or her corporation or partnership, but the cross-examination shall be confined to the explanation of matters brought out in examination; cross-examination of the witness by other parties opposed to him or her, or to his or her corporation or partnership, may be general or limited as the court may direct; the right of re-examination on a new matter brought out on cross-examination shall be confined to parties adversely affected by the new matter.
53.07(6) Where a person required to testify under subrules (1) or (2),
(a) refuses or neglects to attend at the trial or to remain in attendance at the trial;
(b) refuses to be sworn; or
(c) refuses to answer any proper question put to him or her or to produce any document or other thing that he or she is required to produce;
the court may,
(d) where the person is called pursuant to subrule (1) grant judgment in favour of the party calling the witness; or
(e) in any case adjourn the trial or make such other order as is just.
53.08 Where, in an action for libel or slander, a defendant fails to assert in the statement of defence the truth of the statement complained of, the defendant shall not be entitled to call evidence in chief at trial with a view to mitigation of damages, as to,
(a) the circumstances under which the statement was published; or
(b) the character of the plaintiff;
without the leave of the trial judge, unless particulars of the evidence are given to the plaintiff at least seven days before the trial.
EVIDENCE ADMISSIBLE ONLY WITH LEAVE
53.09 Where evidence is admissible only with leave of the trial judge under,
(a) subrule 30.08(1) (failure to disclose document);
(b) rule 30.09 (failure to abandon claim of privilege);
(c) rule 31.07 (refusal to disclose information on discovery);
(d) subrule 31.09(3) (failure to correct answers on discovery);
(e) subrule 53.03(3) (failure to serve expert's report); or
(f) rule 53.08 (libel or slander);
leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial.
PART XIII
REFERENCES
DIRECTING A REFERENCE
APPLICATION OF RULES 54 AND 55
54.01 Rules 54 and 55 apply to references directed,
(a) under rule 54.02 or any other rule; and
(b) under a statute, subject to the provisions of the statute.
WHERE REFERENCE MAY BE DIRECTED
Reference of whole proceeding or issue
54.02(1) Subject to any right to have an issue tried by a jury, a judge may at any time in a proceeding direct a reference of the whole proceeding or a reference to determine an issue where,
(a) all affected parties consent;
(b) a prolonged examination of documents or an investigation is required that, in the opinion of the judge, cannot conveniently be made at trial; or
(c) a substantial issue in dispute requires the taking of accounts.
54.02(2) Subject to any right to have an issue tried by a jury, a judge may at any time in a proceeding direct a reference to determine an issue relating to,
(a) the taking of accounts;
(b) the conduct of a sale;
(c) the conduct of a committeeship, guardianship or receivership; or
(d) the enforcement of an order.
54.03 A reference shall be directed to a master.
ORDER DIRECTING A REFERENCE
54.04(1) An order directing a reference
(a) shall
(i) specify the nature and subject matter of the reference,
(ii) designate which party is to have carriage of the reference, and
(iii) with respect to a reference for the conduct of a sale under clause 54.02(2)(b), include an order to vest title to the property in the name of the purchaser named in the Report and Order on Sale under subrule 55.06(10.1); and
(b) may
(i) direct in general terms that all necessary inquiries be made, accounts taken and costs assessed, and
(ii) contain directions for the conduct of the reference.
54.04(2) The master has, subject to the order directing the reference, all the powers conferred by Rule 55.
MOTIONS ON A REFERENCE
54.05(1) The master hearing the reference shall hear and dispose of any motion made in connection with the reference, but may refer any matter to be disposed of by a judge.
54.05(2) Rule 37.05 (place of hearing of motions) does not apply to a motion made in connection with a reference and heard by the master.
54.05(3) Where a master has made an order on a motion in the reference, a person who is affected by the order may make a motion to a judge to set aside or vary the order by a notice of motion served within seven days after the order is signed and naming the first available hearing date that is at least three days after the service of the notice of motion.
REPORT ON REFERENCE
Report if reference other than for conduct of a sale
54.06(1) The master hearing a reference, other than a reference for the conduct of a sale under rule 55.06, shall make a report that
(a) contains his or her findings and conclusions; and
(b) sets out a deemed confirmation date determined in accordance with subrule 54.09(1).
54.06(2) A report under subrule (1) has no effect until it is confirmed and rules 54.08 to 54.10 apply to the confirmation procedure.
Confirmed report is court order
54.06(3) When the report is confirmed it becomes an order of the court.
REPORT AND ORDER ON SALE
Report and Order if reference for conduct of a sale
54.07(1) The master hearing a reference for the conduct of a sale under rule 55.06 shall make a report and order on the sale by completing the Report and Order on Sale (Form 55F).
Confirmation procedures not applicable
54.07(2) The procedures set out in rules 54.08 to 54.10 for confirming a report do not apply to the report and order under subrule (1).
CONFIRMATION PROCEDURE
54.08(1) Immediately after the report referred to in rule 54.06 is signed by the master it shall be entered on the court file.
54.08(2) The report shall be served by the court on each party to the reference no later than four days after the report is signed. Service may be made
(a) by sending a copy of the report by regular lettermail to the party at the address on the court record for the party; or
(b) if there is a lawyer of record for the party who maintains a pick-up mailbox at the Law Courts Building in the judicial centre where the reference is conducted, by placing the report in the mailbox.
54.08(3) Where service is made in accordance with clause (2)(a) or (b), service is effective on the fifth day after the report is mailed or placed in the pick-up mailbox, as the case may be.
DEEMED CONFIRMATION OF REPORT
54.09(1) The deemed confirmation date shall be a date that is 35 days after the date the report is signed by the master.
54.09(2) The report is deemed to be confirmed as of the deemed confirmation date set out in the report unless a notice of motion to oppose confirmation, as set out in rule 54.10, is filed and served before the deemed confirmation date.
Extending or shortening deemed confirmation date
54.09(3) The parties may, before the deemed confirmation date, agree to extend or shorten the deemed confirmation date set out in the report by signing and filing a Confirmation Date Alteration Agreement (Form 54A).
MOTION TO OPPOSE CONFIRMATION
54.10(1) A motion to oppose confirmation of a report shall be made to a judge.
Notice of motion to oppose confirmation
54.10(2) A notice of motion to oppose confirmation of a report shall,
(a) set out the grounds for opposing confirmation;
(b) be filed and served on each party who appeared on the reference before the deemed confirmation date set out in the report; and
(c) name the first available hearing date that is at least 14 days after service of the notice of motion.
Cross motion to oppose confirmation
54.10(2.1) A party who is served with a notice of motion to oppose confirmation of the report may also oppose confirmation of the report
(a) by filing a notice of motion within four days after being served with the other party's notice of motion that
(i) sets out the grounds for opposing confirmation, and
(ii) sets a proposed hearing date that is the same date as the hearing date set under clause 54.10(2)(c); and
(b) by serving the notice of motion on every other party who appeared on the reference.
Motion for immediate confirmation
54.10(3) A party who seeks confirmation before the deemed confirmation date may make a motion to a judge for confirmation.
54.10(4) A judge hearing a motion under subrule (2), (2.1) or (3) may confirm the report in whole or in part or make such other order as is just.
MASTER UNABLE TO CONTINUE OR COMPLETE REFERENCE
54.11 Where a master is unable for any reason to continue or complete a reference, any party to the reference may make a motion to a judge for directions for continuation or completion of the reference.
PROCEDURE ON REFERENCE
GENERAL PROVISIONS FOR CONDUCT OF REFERENCE
Simple procedure to be adopted
55.01(1) A master shall, subject to any directions contained in the order directing the reference, devise and adopt the simplest, least expensive and most expeditious manner of conducting the reference and may,
(a) give such directions as are necessary; and
(b) dispense with any procedure ordinarily taken that the master considers to be unnecessary, or adopt a procedure different from that ordinarily taken.
Special circumstances to be reported
55.01(2) A master shall report on any special circumstances relating to the reference and shall generally inquire into, decide and report on all matters relating to the reference as fully as if they had been specifically referred.
55.01(3) Subject to subrule (1), a reference shall be conducted as far as possible in accordance with this Rule and if the reference is pursuant to The Family Property Act, rule 70.25 also applies to the reference.
M.R. 43/2003; 104/2004
PROCEDURE ON A REFERENCE GENERALLY
55.02(1) The party having carriage of the reference shall forthwith have the order directing the reference signed and, within 10 days after signing, request an appointment with a master for a hearing to consider directions for the reference and, in default, any other party having an interest in the reference may assume carriage of it.
55.02(2) A notice of hearing for directions (Form 55A) and a copy of the order directing the reference shall be served on every other party to the proceeding at least five days before the hearing unless the master directs or these rules provide otherwise.
55.02(3) At the hearing for directions, the master shall give such directions for the conduct of the reference as are just, including,
(a) the time and place at which the reference is to proceed;
(b) any special directions concerning the parties who are to attend; and
(c) any special directions concerning what evidence is to be received and how documents are to be proved.
55.02(4) The directions may be varied or supplemented during the course of the reference.
55.02(5) Where it appears to the master that any person ought to be added as a party to the proceeding, the master may make an order adding the person as a defendant or respondent and direct that the order, together with the order directing the reference and a notice to party added on reference (Form 55B), be served on the person, and on being served the person becomes a party to the proceeding.
55.02(6) A person served with a notice under subrule (5) may make a motion to a judge to set aside or vary the order directing the reference or the order adding a person as a party, by a notice of motion served within 10 days after service of the notice under subrule (5), or where the person is served outside Manitoba, within such further time as the master directs, and naming the first available hearing date that is at least three days after service of the notice of motion.
Failure to appear on reference
55.02(7) A party who is served with notice of a reference under subrule (2) or (5) and does not appear in response to the notice is not entitled to notice of any step in the reference and need not be served with any document in the reference, unless the master orders otherwise.
Representation of parties with similar interests
55.02(8) Where it appears to the master that two or more parties have substantially similar interests and can be adequately represented as a class, the master may direct them to be represented by the same lawyer and, where they cannot agree on a lawyer to represent them, the master may designate a lawyer on such terms as are just.
55.02(9) A party is not bound to follow a direction given under subrule (8) but where the party insists on being represented by a different lawyer, the party shall not recover the costs of the separate representation and, unless the master orders otherwise, shall pay all costs incurred by the other parties as a result of the separate representation.
55.02(10) The master may grant leave to make any necessary amendments to the pleadings that are not inconsistent with the order of reference.
55.02(11) The master shall keep a procedure book in which he or she shall note all steps taken and all directions given in respect of the reference, and the directions need not be embodied in a formal order or report to bind the parties.
Transferring carriage of reference
55.02(12) Where the party having carriage of the reference does not proceed with reasonable diligence, the master may, on the motion of any other interested party, transfer carriage of the reference to another party.
55.02(13) The following rules apply, with necessary changes, to the conduct of a reference:
(a) Rule 30.1 (deemed undertaking);
(b) Rule 52 (trial procedure), other than rules 52.08, 52.09 and 52.11;
(c) Rule 53 (evidence at trial), other than rule 53.08.
Examination of party and production of documents
55.02(14) The master may require any party to be examined and to produce such documents as the master thinks fit and may give directions for their inspection by any other party.
55.02(15) While a reference is pending, all documents relating to it shall be filed with the master except where the court otherwise directs and, on completion of the reference, the documents shall be returned to the administrative centre in which the proceeding was commenced.
Execution or delivery of instrument
55.02(16) Where a person refuses or neglects to execute or file and serve an instrument that becomes necessary under an order directing the reference, the master may give directions for its execution or filing and serving.
55.02(16.1) At any stage of a reference, the master may
(a) prepare an interim report; or
(b) direct a party to prepare a draft interim report.
55.02(17) When the hearing of the reference is completed, the master may either prepare a report or may direct a party to prepare a draft report.
55.02(18) When a report referred to in subrule (16.1) or (17) is satisfactory to the master, he or she shall sign the report and cause
(a) the report to be entered on the court file; and
(b) copies to be served in accordance with subrule 54.08(2).
55.02(19) Reports affecting money in court, or to be paid into court, shall set forth, in figures, in a schedule, a brief summary of the sums found by the report, and paid or payable into or out of court, and the funds or shares to which the sums of money are respectively chargeable.
PROCEDURE TO ASCERTAIN INTERESTED PERSONS AND VERIFY CLAIMS
55.03(1) The master may direct the publication of advertisments for creditors or beneficiaries of an estate or trust, other unascertained persons, or their successors.
55.03(2) The advertisement shall specify a date by which and a place where interested persons may file their claims and shall notify them that, unless their claims are so filed, they may be excluded from the benefit of the order, but the master may nevertheless accept a claim at a later time.
55.03(3) Before the day specified by the master for the consideration of claims filed in response to the advertisment, the executor, administrator or trustee, or such other person as the master directs, shall examine the claims and prepare an affidavit verifying a list of the claims filed in response to the advertisement and stating which claims he or she believes should be disallowed and the reasons for that belief.
Adjudication of contested claims
55.03(4) If a claim is contested, the master shall order that a notice of contested claim (Form 55C), fixing a date for adjudication of the claim, be served on the claimant.
PROCEDURE ON TAKING OF ACCOUNTS
55.04(1) On the taking of accounts, the master may,
(a) take the accounts with rests or otherwise;
(b) take account of money received or that might have been received but for wilful neglect or default;
(c) make allowance for occupation rent and determine the amount;
(d) take into account necessary repairs, lasting improvements, costs and other expenses properly incurred; and
(e) make all just allowances.
55.04(2) Where an account is to be taken, the party required to account, unless the master directs otherwise, shall prepare the account in debit and credit form, verified by affidavit.
55.04(3) The items on each side of the account shall be numbered consecutively, and the account shall be referred to in the affidavit as an exhibit and shall not be attached to the affidavit unless otherwise directed by the court.
55.04(4) The master may direct that the books in which the accounts have been kept be taken as prima facie proof of the matters contained in them.
55.04(5) Before hearing a reference, the master may fix a date for the purpose of taking the accounts and may direct the production and inspection of vouchers and, where appropriate, cross-examination of the party required to account on his or her affidavit, with a view to ascertaining what is admitted and what is contested between the parties.
55.04(6) A party who questions an account shall give particulars of the objection, with specific reference by number to the item in question, to the party required to account, and the master may require the party to give further particulars of the objection.
DIRECTION FOR PAYMENT OF MONEY
55.05(1) Where, under an order directing a reference, the master directs money to be paid at a specified time and place, the master shall direct it to be paid into court to the credit of the party entitled or, with the consent of all interested parties, into a trust account for the benefit of the party entitled.
55.05(2) Where money is directed to be paid out of court to the credit of the party entitled, the party may name the financial institution into which he or she wishes it to be paid.
55.05(3) Where it appears that money in court belongs to a minor, the master shall require evidence of the age of the minor and shall, in the report, state the minor's birth date and full address.
55.05(4) Where an order of reference or a report directs the payment of money out of court to creditors, the person having carriage of the reference shall deposit with the accountant a copy of the order or report and shall serve a notice to creditor (Form 55D) on each creditor stating that payment of the creditor's claim, as allowed, may be obtained from the accountant.
REFERENCE FOR CONDUCT OF SALE
55.06(1) Where a sale is ordered, the master may cause the property to be sold by public auction, private contract or tender, or partly by one method and partly by another.
55.06(2) Where property is directed to be sold by auction or tender, the party having carriage of the sale shall prepare a draft advertisement according to the instructions of the master showing,
(a) the short title of the proceeding;
(b) that the sale is by order of the court;
(c) the time and place of the sale;
(d) a short description of the property to be sold;
(e) whether the property is to be sold in one lot or several and, if in several, in how many, and in what lots;
(f) the terms of payment;
(g) that the sale is subject to a reserve bid or a right of first refusal, if that is the case; and
(h) any conditions of sale different from those set out in Form 55E.
55.06(2.1) Where a party seeks to have property sold by listing the property for sale with an agent, or otherwise by private sale, the party shall obtain at least one appraisal of the property or two opinions of value. In the event a listing agent is proposed, the party shall provide
(a) the name of the agent;
(b) the commission rate to be charged by the agent; and
(c) the basic terms of the proposed listing agreement, including
(i) the length of time for the listing,
(ii) whether the listing is exclusive or a multiple listing, and
(iii) the procedure for altering the listing price.
55.06(3) The conditions of sale by auction or tender shall be those set out in Form 55E, subject to such modifications as the master directs.
Hearing for directions — sale by auction or tender
55.06(4) With respect to a sale by auction or tender under subrule 55.06(2), at a hearing for directions under subrule 55.02(3), the master shall,
(a) settle the form of the advertisment;
(b) fix the time and place of sale;
(c) name an auctioneer, where one is to be employed;
(d) give directions for publication of the advertisement;
(e) give directions for obtaining appraisals;
(f) fix a reserve bid, if any;
(f.1) give directions as to any right of first refusal; and
(g) make all other arrangements necessary for the sale.
Hearing for directions — private sale
55.06(4.1) With respect to a private sale under subrule 55.06(2.1), at a hearing for directions under subrule 55.02(3), the master shall
(a) settle the name of the listing agent;
(b) settle the commission rate and terms of the listing;
(c) give directions for obtaining any further appraisals or opinions of value;
(d) give directions as to any right of first refusal, including provisions relating to commission payable in the event of a right of first refusal being exercised;
(e) give directions with respect to viewing the property, including notice provisions and any other conditions with respect to the maintenance of the property during the sale period;
(f) settle the procedure for seeking court approval in the event an offer that is not acceptable to all parties is received; and
(g) give any other directions necessary or incidental to the sale of the property.
55.06(5) All parties to the reference may bid for the property except if the court orders otherwise.
55.06(6) Repealed.
55.06(7) Where no auctioneer is employed, the master or a person designated by the master shall conduct the sale.
55.06(8) The purchaser shall enter into an agreement of purchase and sale at the time of sale.
55.06(9) The deposit required by the conditions of sale shall be paid to the party having carriage of the sale or his or her lawyer at the time of sale and the party or lawyer shall forthwith pay the money into court in the name of the purchaser or as the master directs.
55.06(10) Where a sale
(a) is made through an auctioneer, the auctioneer shall make an affidavit concerning the result of the sale; and
(b) is not made through an auctioneer, the master shall enter the results in the procedure book.
55.06(10.1) When a sale is approved by the master, the master shall make a report and order on the sale by completing the Report and Order on Sale (Form 55F).
55.06(11) A party may object to a sale by making a motion to the master to set it aside, and notice of the motion shall be served on all parties to the reference and on the purchaser, who shall be deemed to be a party for the purpose of the motion.
55.06(12) The purchaser may pay the purchase money or the balance of it into court without order or as directed by the master.
55.06(12.1) In order to complete the sale, the master may make an order directing that the following documents be filed in the appropriate land titles office:
(a) the judge's order directing a reference under subclause 54.04(1)(a)(iii);
(b) the master's Report and Order on Sale under subrule 55.06(10.1) (Form 55F).
55.06(13) Where possession is wrongfully withheld from the purchaser, either the purchaser or any party may move for a writ of possession.
55.06(14) The purchase money may be paid out of court in accordance with the Report and Order on Sale (Form 55F),
(a) on consent of the purchaser or his or her lawyer; or
(b) on proof to the accountant that with respect to the property for which the money in question was paid into court, the purchaser has received a transfer or the following documents:
(i) the judge's order under subclause 54.04(1)(a)(iii),
(ii) the master's Report and Order on Sale (Form 55F) under subrule 55.06(10.1),
(iii) the master's order under subrule 55.06(12.1).
55.06(15) Repealed.
PART XIV
COSTS
SECURITY FOR COSTS
56.01 The court, on motion in a proceeding may make such order for security for costs as in the particular circumstances of the case is just, including where the plaintiff or applicant,
(a) is ordinarily resident outside Manitoba;
(b) has another proceeding for the same relief pending;
(c) has failed to pay costs as ordered in the same or another proceeding;
(d) is a corporation or a nominal plaintiff, and there is good reason to believe that insufficient assets will be available in Manitoba to pay costs, if ordered to do so; or
(e) a statute requires security for costs.
DECLARATION OF PLAINTIFF'S PLACE OF RESIDENCE
56.02 The lawyer for the plaintiff or applicant shall, forthwith on receipt of a demand in writing from any person who has been served with the originating process, declare in writing whether the plaintiff or applicant is ordinarily resident in Manitoba, and where the lawyer fails to respond to the demand, the court may order that the action be stayed or dismissed.
56.03 A motion in an action for security for costs may be made only after the defendant has filed and served a defence and shall be made on notice to the plaintiff and every other defendant who has filed and served a defence.
AMOUNT AND FORM OF SECURITY AND TIME FOR FURNISHING
56.04 The amount and form of security and the time for paying into court or otherwise giving the required security shall be determined by the court.
56.05 A party against whom an order for security for costs (Form 56A) has been made may not, until the security has been given, take any step in the proceeding except an appeal from the order, unless the court orders otherwise.
56.06 Where a party defaults in giving the security required by an order, the court on motion may dismiss the proceeding against the party who obtained the order and the stay imposed by rule 56.05 no longer applies unless another party has obtained an order for security for costs.
56.07 The amount of security required by an order for security for costs may be increased or decreased at any time.
56.08 When a party gives the security required by an order, that party shall forthwith give notice of compliance to all other parties to the proceeding.
SECURITY FOR COSTS AS TERM OF RELIEF
56.09 Notwithstanding rules 56.01 and 56.02, any party to a proceeding may be ordered to give security for costs where, under rule 1.05 or otherwise, the court has discretion to impose terms as a condition of granting relief, and where such an order is made, rules 56.04 to 56.08 apply, with necessary modifications.
AWARD AND FIXING OF COSTS BY COURT
GENERAL PRINCIPLES
57.01(1) In exercising its discretion under section 96 of The Court of Queen's Bench Act, to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle made in writing,
(a) the amount claimed and the amount recovered in the proceeding;
(b) the complexity of the proceeding;
(c) the importance of the issues;
(d) the conduct of any party which tended to shorten or lengthen unnecessarily the duration of the proceeding;
(e) whether any step in the proceeding was improper, vexatious or unnecessary;
(f) a party's denial or refusal to admit anything which should have been admitted;
(g) whether it is appropriate to award any costs or more than one set of costs where there are several parties with identical interests who are unnecessarily represented by more than one counsel; and
(h) any other matter relevant to the question of costs.
Costs against successful party
57.01(2) The fact that a party is successful in a proceeding or a step in a proceeding does not prevent the court from awarding costs against the party in a proper case.
57.01(3) In awarding costs, the court may fix all or part of the costs, with or without reference to the Tariffs "A" or "B", instead of referring them for assessment, but in exercising its discretion to fix costs the court will not consider any tariff as establishing a minimum level for costs.
57.01(4) The court may disallow a disbursement in whole or in part where, based on all circumstances of the case, it is satisfied that a disbursement claimed by a party was not reasonably necessary for the conduct of the proceeding or was for an unreasonable amount.
57.01(5) Where the costs are not fixed, they may be assessed under Rule 58.
57.01(6) Nothing in this Rule affects the authority of the court,
(a) to award or refuse costs in respect of a particular issue or part of a proceeding;
(b) to award a percentage of assessed costs or award assessed costs up to or from a particular stage of a proceeding; or
(c) to award all or part of the costs on a lawyer and client basis.
DIRECTIONS TO ASSESSMENT OFFICER
57.02(1) Where costs are to be assessed, the court may give directions to the assessment officer in respect of any matter referred to in rule 57.01.
57.02(2) The court shall record,
(a) any direction to the assessment officer;
(b) any direction that is requested by a party and refused; and
(c) any direction that is requested by a party and that the court declines to make but leaves to the discretion of the assessment officer.
COSTS OF A MOTION
57.03(1) Where, on the hearing of a contested motion, the court is satisfied that the motion ought not to have been made or opposed, as the case may be, the court shall,
(a) fix the costs of the motion and order them to be paid forthwith; or
(b) order the costs of the motion to be paid forthwith after assessment.
57.03(2) Where a party fails to pay the costs of a motion as required under subrule (1), the court may dismiss or stay the party's proceeding, strike out the party's defence or make such order as is just.
57.03(3) On a motion made without notice, there shall be no costs to any party, unless the court orders otherwise.
57.04 Where a proceeding is settled on the basis that a party shall pay or recover costs and the amount of costs is not included in or determined by the settlement, the costs may be assessed under Rule 58 on filing in the office of the assessment officer a copy of the minutes of settlement or a written consent signed by the party agreeing to pay costs.
COSTS WHERE COURT LACKS JURISDICTION
57.05 Where a proceeding is dismissed for want of jurisdiction, the court may make an order for costs of the proceeding.
COSTS OF LITIGATION GUARDIAN
57.06(1) The court may order a successful party to pay the costs of the litigation guardian of a party under disability who is a defendant or respondent and add them to his own, but may further order that the successful party pay those costs only to the extent that the successful party is able to recover them from the party liable for them.
57.06(2) A litigation guardian who has been ordered to pay costs is entitled to recover them from the person under disability for whom the litigation guardian has acted, unless the court orders otherwise.
LIABILITY OF LAWYER FOR COSTS
57.07(1) Where a lawyer for a party has caused costs to be incurred without reasonable cause or to be wasted by undue delay, or other default, the court may make an order requiring the lawyer personally to pay the costs of any party.
57.07(2) An order under subrule (1) may be made by the court on its own initiative or on the motion of any party to the proceeding, but no such order shall be made unless the lawyer is given a reasonable opportunity to make representations to the court.
57.07(3) The court may direct that notice of an order against a lawyer under subrule (1) be given to the client in the manner specified in the order.
ASSESSMENT OF COSTS
58.01 Where a rule or order provides that a party is entitled to the costs of all or part of a proceeding and the costs have not been fixed by the court, they shall be assessed in accordance with rules 58.02 to 58.09.
WHO MAY ASSESS COSTS
58.02(1) Costs shall be assessed by an assessment officer at the judicial centre where the proceeding was commenced or heard, or at a centre agreed upon by the parties.
58.02(2) The costs of a reference may be assessed by an assessment officer or the master who heard the reference, and for the purpose of rules 58.03 to 58.09, the master shall be deemed to be an assessment officer.
ASSESSMENT AT INSTANCE OF PARTY ENTITLED
By filing bill of costs and obtaining appointment
58.03(1) A party entitled to costs may obtain a notice of appointment for assessment of costs (Form 58A) from the appropriate assessment officer on filing with the assessment officer a bill of costs and a copy of the order or other document giving rise to the party's entitlement to costs.
Service of notice and bill of costs
58.03(2) The notice and the bill of costs shall be served on every party interested in the assessment at least seven days before the date fixed for the assessment.
ASSESSMENT AT INSTANCE OF PARTY LIABLE
By obtaining appointment and serving notice
58.04(1) Where a party entitled to costs fails or refuses to file or serve a bill of costs for assessment within a reasonable time, any party liable to pay the costs may obtain notice to file and serve a bill of costs for assessment (Form 58B) from the appropriate assessment officer.
58.04(2) The notice shall be served on every party interested in the assessment at least 21 days before the date fixed for the assessment.
58.04(3) On being served with the notice, the party entitled to costs shall file and serve a copy of the bill of costs on every party interested in the assessment at least seven days before the date fixed for the assessment.
Failure to file and serve bill of costs
58.04(4) Where the party entitled to costs fails to comply with subrule (3), the assessment officer may fix the costs of the defaulting party at an appropriate sum.
ASSESSMENT IN ACCORDANCE WITH TARIFFS
58.05(1) Where costs are to be assessed, the assessment officer shall assess and allow,
(a) lawyers' fees and disbursements in accordance with Tariffs "A" and "B"; and
(b) disbursements for fees paid to the court, a court reporter, an official examiner or a sheriff under the regulations under The Law Fees Act;
and no other fees, disbursements or charges shall be assessed or allowed unless the court orders otherwise.
58.05(2) No disbursements other than fees paid to the court shall be assessed or allowed unless it is established by affidavit or by the lawyer appearing on the assessment that the disbursement was made or that the party is liable for it.
58.05(3) An assessment officer may require production of books and documents and give directions for the conduct of an assessment.
58.05(4) Where parties are liable to pay costs to each other, the assessment officer may adjust the costs by way of set off.
58.05(5) The assessment officer may award or refuse the costs of an assessment to either party, and fix those costs.
FACTORS TO BE CONSIDERED ON ASSESSMENT
58.06(1) In assessing costs the assessment officer may consider the factors referred to in subrule 57.01(1).
58.06(2) In assessing costs the assessment officer is bound by the court's direction or refusal to make a direction under rule 57.02, but is not bound where the court declines to make a direction and leaves the matter to the assessment officer's discretion.
COSTS OF PARTICULAR PROCEEDINGS
58.07(1) The costs of passing the accounts of a trustee or committee shall be fixed in accordance with the tariff for the passing of accounts in The Court of Queen's Bench Surrogate Practice Act, subject to increase where the tariff appears to be inadequate.
58.07(2) Where costs are to be paid out of a fund or estate, the assessment officer may direct what parties are to attend on the assessment and may disallow the costs of the assessment of any party whose attendance is unnecessary because the interest of the party in the fund or estate is small, remote or sufficiently protected by other interested parties.
CERTIFICATE OF ASSESSMENT
58.08(1) On the assessment of costs, the assessment officer shall set out in a certificate of assessment of costs (Form 58C) the amount of costs assessed and allowed.
58.08(2) The assessment officer may, and if requested shall, provide written reasons for the decision.
58.09 The time for and the procedure on appeal from a certificate of an assessment officer is governed by rule 62.01.
COSTS OF A SHERIFF
Sheriff's fees may be assessed
58.10(1) A sheriff claiming fees or expenses that are not prescribed by regulation under The Law Fees Act or that have not been assessed shall, on being required by a party, furnish the party with a bill of costs and have the costs assessed by an assessment officer.
No collection pending assessment
58.10(2) A sheriff who has been required to have fees or expenses assessed shall not collect them until they have been assessed.
Appointment by either sheriff or party
58.10(3) Either the sheriff or the party requiring the assessment may obtain an appointment for the assessment and the procedure on the assessment shall be the same as in the case of an assessment between parties to a proceeding.
Reduction of fees on motion by debtor
58.10(4) A person liable under a writ of execution who is dissatisfied with the amount of fees or expenses claimed by a sheriff in respect of the enforcement of the writ may make a motion, before or after payment, on notice to the sheriff and, if the amount appears to be unreasonable, even though it is in accordance with Tariff "B", the court may reduce the amount or order the amount to be refunded on such terms as are just.
58.10(5) Nothing in subrule (4) authorizes the court to reduce or order a refund of a fee that is prescribed by regulations under The Law Fees Act.
PART XV
ORDERS
ORDERS
59.01 An order is effective from the date on which it is made, unless it provides otherwise.
ENDORSEMENT BY JUDGE OR OFFICER
59.02(1) Every order shall, at the time made, be endorsed on a disposition sheet, and the disposition sheet shall be signed by the judge or officer making the order, unless
(a) the order itself is signed by the judge or officer making it; or
(b) the circumstances make it impractical to do so.
59.02(2) Where written reasons are delivered, the endorsement may consist of a reference to the reasons, and a copy of the reasons shall be filed in the court file.
PREPARATION AND FORM OF ORDER
Preparation of draft formal order
59.03(1) Any party affected by an order may prepare a draft of the formal order and shall, unless otherwise ordered by the court, send it to all other parties represented at the hearing for approval of its form.
59.03(2) Approval of the form of an order that merely dismisses a motion, proceeding or appeal, with or without costs, is not required.
59.03(3) An order shall be in Form 59A (order) or 59B (judgment) and shall include,
(a) the name of the judge or officer who made it;
(b) the date on which it was made; and
(c) a recital of the particulars necessary to understand the order, including the date of the hearing, the parties who were present or represented by counsel and those who were not, and any undertaking made by a party as a condition of the order.
59.03(4) The operative parts of an order shall be divided into paragraphs, numbered consecutively.
Order directing payment for minor
59.03(5) An order directing payment into court or to a trusteee on behalf of a minor shall show the minor's birth date and full address.
Order on which interest payable
59.03(6) An order for the payment of money on which postjudgment interest is payable shall set out the rate of interest and the date from which interest is payable.
SIGNING ORDERS
59.04(1) Every order shall be submitted in accordance with subrules (2) to (5) for the signature of the registrar at the place of hearing unless the judge or officer who made the order,
(a) has signed it; or
(b) orders that it be signed by the judge or officer who made it.
Signing where form of draft order approved
59.04(2) Where all the parties represented at the hearing have approved the form of the order, the party who prepared the draft order shall,
(a) file the approval of all parties represented at the hearing, together with a copy of the order; and
(b) leave the order with the registrar for signing.
Signing where approval of form not required
59.04(3) Where approval of the form of an order is not required under subrule 59.03(2), the party who prepared the draft order shall leave it with the registrar for signing.
59.04(4) Where the registrar is satisfied that the order is in proper form, the order shall be signed by the registrar and a true copy returned to the party who left it to be signed.
59.04(5) Where the registrar is not satisfied that the order is in proper form, the order shall be returned unsigned to the party who left it to be signed and the party may,
(a) submit the order in proper form and, if required by the registrar, file the approval of the parties to the order in that form, together with a copy of the order; or
(b) arrange to have the order settled and signed by the judge or officer who made it.
Appointment to settle where form of draft order not approved
59.04(6) Where approval is not received within a reasonable time, a party may obtain an appointment to have the order settled and signed by the judge or officer who made it.
59.04(7) In a case of urgency, the order may be settled and signed by the judge or officer who made it without the approval of any of the parties who were represented at the hearing.
Settlement by another judge or master
59.04(8) Where, after making an order, a judge or master ceases to hold office or becomes incapacitated, or a judge is for any reason not available, the order may be settled and signed,
(a) where made by a judge, by another judge; and
(b) where made by a master, by another master or a judge.
59.05 The original copy of every order shall be filed immediately after it has been signed.
AMENDING, SETTING ASIDE OR VARYING ORDER
59.06(1) An order that,
(a) contains an error arising from an accidental slip or omission; or
(b) requires amendment in any particular on which the court did not adjudicate;
may be amended on a motion in the proceeding.
59.06(2) A party who seeks to,
(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;
(b) suspend the operation of an order;
(c) carry an order into operation; or
(d) obtain relief other than that originally awarded;
may make a motion in the proceeding for the relief claimed.
SATISFACTION OF ORDER
59.07(1) A party may acknowledge satisfaction of an order by a notice of satisfaction (Form 59C) signed by the party, or the party's lawyer, before a witness, and the document may be filed in the court office where the order was filed.
59.07(2) Upon filing of a notice of satisfaction under subrule (1), the registrar shall note on the order that notice of satisfaction has been filed.
ENFORCEMENT OF ORDERS
60.01 In this Rule,
"creditor" means a person who is entitled to enforce an order for the payment or recovery of money; (« créancier »)
"debtor" means a person against whom an order for the payment or recovery of money may be enforced. (« débiteur »)
"notice of garnishment" includes a garnishing order and a garnishing process under The Garnishment Act. (« avis de saisie-arrêt »)
M.R. 182/95
ENFORCEMENT OF ORDER FOR PAYMENT OR RECOVERY OF MONEY
60.02(1) In addition to any other method of enforcement provided by law, an order for the payment or recovery of money may be enforced by,
(a) a writ of seizure and sale (Form 60A) under rule 60.07;
(b) a notice of garnishment (Forms 60E, 60E.1, 60E.2, 60F, 60F.1 and 60F.2) under rule 60.08 and in accordance with The Garnishment Act;
(c) the appointment of a receiver.
M.R. 182/95; 32/2002
Recovery of costs without order awarding costs
60.02(2) Where under these rules a party is entitled to costs on the basis of a certificate of assessment of costs without an order awarding costs, and the costs are not paid within seven days after the certificate of assessment of costs is signed, the party may enforce payment of the costs by the means set out in subrule (1) on filing with the registrar an affidavit setting out the basis of entitlement to costs and attaching a copy of the certificate of assessment.
ENFORCEMENT OF ORDER FOR POSSESSION OF LAND
60.03 An order for the recovery or for delivery of the possession of land may be enforced by a writ of possession (Form 60B) under rule 60.09.
ENFORCEMENT OF ORDER FOR RECOVERY OF PERSONAL PROPERTY
60.04(1) An order for the recovery of personal property other than money may be enforced by a writ of delivery (Form 60C), which may be obtained on filing with the registrar two copies of the writ in proper form.
60.04(2) Where the property is not delivered up under a writ of delivery, the order may be enforced by a contempt order under rule 60.10.
ENFORCEMENT OF ORDER TO DO OR ABSTAIN FROM DOING ANY ACT
60.05 An order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be enforced against the person refusing or neglecting to obey the order by a contempt order under rule 60.10.
ENFORCEMENT BY OR AGAINST A PERSON NOT A PARTY
60.06(1) An order that is made for the benefit of a person who is not a party may be enforced by that person in the same manner as if that person was a party.
60.06(2) An order that may be enforced against a person who is not a party may be enforced against that person in the same manner as if that person was a party.
WRIT OF SEIZURE AND SALE
60.07(1) Where an order may be enforced by a writ of seizure and sale, the creditor is entitled to the issue of one or more writs of seizure and sale (Form 60A), on filing with the registrar a requisition setting out,
(a) the date and amount of any payment received since the order was made; and
(b) the amount owing and the rate of postjudgment interest;
together with two copies of the writ in proper form and any other evidence necessary to establish the amount awarded and the creditor's entitlement.
60.07(2) A writ of seizure and sale shall not issue unless leave of the court is first obtained where,
(a) six years or more have elapsed since the date the order was made;
(b) a change has taken place, whether by death or otherwise, in the parties entitled to enforce, or liable under, the order; or
(c) the enforcement of the order is subject to the fulfillment of a term or condition.
M.R. 127/94
60.07(3) Where the court grants leave to issue a writ of seizure and sale and it is not issued within one year from the date the order was made granting leave, the order granting leave ceases to have effect, but this does not prevent the granting of leave on a subsequent motion.
M.R. 127/94
60.07(4) Where an order requires the payment of money into court, the writ of seizure and sale shall contain a direction that all money realized by the sheriff under the writ is to be paid into court.
Order for payment at future time
60.07(5) Where an order requires payment at or after a specified future time, the writ of seizure and sale shall not be issued until after the expiration of that time.
60.07(6) A writ of seizure and sale ceases to have any force upon expiration of the writ or a renewal thereof pursuant to subsection 5(3) of The Executions Act.
60.07(7) A writ of seizure and sale may be renewed before its expiration by filing in the administrative centre from which the writ is issued a request to renew (Form 60D), in duplicate, and the registrar shall record the date of renewal, sign the request and return one copy to the creditor.
60.07(8) The creditor shall file with the sheriff the copy of the request signed by the registrar under subrule (7) and the sheriff shall endorse the date of renewal on the copy of the writ in the sheriff's files.
Writ to bear names and addresses
60.07(9) Every writ of seizure and sale shall bear the name and address of the debtor, the creditor and the creditor's lawyer, if any.
60.07(10) Where personal property seized under a writ of seizure and sale remains unsold for want of buyers, the sheriff shall notify the creditor of the date and place of the attempted sale and of any other relevant circumstances.
60.07(11) On receipt of a notice under subrule (10), the creditor may instruct the sheriff in writing to sell the personal property in such manner as the sheriff considers will realize the best price that can be obtained.
60.07(12) Unless the court otherwise orders, where the creditor is a person under disability, any money, other than costs, recovered by the sheriff shall be paid into court.
GARNISHMENT AFTER JUDGMENT
60.08(1) In this rule,
"collection officer" means a collection officer as defined in section 14.4 of The Garnishment Act; (« agent de recouvrement »)
"designated officer" means a designated officer as defined in Part VI of The Family Maintenance Act; (« fonctionnaire désigné »)
"fine" means a fine as defined in section 14.4 of The Garnishment Act; (« amende »)
"forfeited recognizance order" means a forfeited recognizance order as defined in section 14.4 of The Garnishment Act; (« ordonnance de confiscation d'engagement »)
"general creditor" means a creditor other than a maintenance creditor or a person entitled to payment under a forfeited recognizance order, a restitution order or an order imposing a fine; (« créancier ordinaire »)
"maintenance creditor" means a person entitled to maintenance under a maintenance order; (« créancier alimentaire »)
"maintenance order" means a maintenance order as defined in section 13 of The Garnishment Act. (« ordonnance alimentaire »)
"restitution order" means a restitution order as defined in section 14.4 of The Garnishment Act. (« ordonnance de dédommagement »)
M.R. 182/95; 32/2002
60.08(1.1) A creditor under an order for the payment or recovery of money may enforce it by garnishment of debts payable to the debtor by other persons in accordance with The Garnishment Act.
M.R. 182/95
60.08(2) A notice of garnishment shall be
(a) in Form 60E where garnishment is sought by a general creditor;
(a.1) in Form 60E.1 where garnishment is sought to enforce a restitution order;
(a.2) in Form 60E.2 where garnishment is sought by a collection officer to enforce a forfeited recognizance order or an order imposing a fine;
(b) in Form 60F where garnishment is sought by a maintenance creditor under section 13.1 of The Garnishment Act; and
(c) in Form 60F.1 where garnishment is sought by a designated officer on behalf of a maintenance creditor under section 13.1 or 13.2 of The Garnishment Act.
M.R. 182/95; 32/2002
Obtaining notice of garnishment
60.08(3) A creditor seeking to enforce an order by garnishment shall file with the registrar two copies of a notice of garnishment (Form 60E, 60E.1, 60E.2, 60F or 60F.1) for each garnishee and an affidavit stating,
(a) that an order for the payment of money has been made and the date the order was made;
(b) where garnishment
(i) is sought by a general creditor, or by a maintenance creditor under section 13.1 of The Garnishment Act, or to enforce a forfeited recognizance order, a restitution order or an order imposing a fine, the date and amount of any payments received,
(ii) is sought by a designated officer under section 13.1 or 13.2 of The Garnishment Act, the amount of arrears under the maintenance order being sought;
(c) the amount payable, including interest;
(d) the name and address of each garnishee;
(e) where garnishment
(i) is sought by a general creditor or to enforce a forfeited recognizance order, a restitution order or an order imposing a fine, that the creditor believes that the garnishee is, or will become, indebted to the debtor, and the grounds for the belief, or
(ii) is sought under section 13.1 or 13.2 of The Garnishment Act, that the maintenance creditor or a designated officer believes the garnishee is, or will or may become, indebted to the debtor, and the grounds for the belief;
(f) such particulars of the debt as are known, including whether or not it is for wages; and
(g) where a person to whom a notice of garnishment is to be directed is not in Manitoba, that the debtor is entitled to sue that person in Manitoba to recover the debt, and the basis of entitlement to sue in Manitoba.
M.R. 127/94; 182/95; 32/2002; 48/2005
Information and belief in affidavit
60.08(4) The affidavit required by subrule (3) may contain statements of the deponent's information and belief, if the source of the information and the fact of the belief are specified in the affidavit.
60.08(5) On filing the notices of garnishment and affidavit as required by subrule (3), the registrar shall issue a notice of garnishment for each person named in the affidavit under clause 3(d), and shall return a copy of each notice to the creditor.
60.08(6) Where garnishment is sought by a general creditor, the creditor shall serve upon the debtor and the garnishee, by personal service, by an alternative to personal service under rule 16.03 or by mail under rule 16.06,
(a) the notice of garnishment (Form 60E);
(b) a blank garnishee's statement (Form 60G); and,
(c) where the debt is for wages, a memorandum as required by section 12 of The Garnishment Act.
M.R. 182/95; 32/2002
Service if garnishment under s. 13.1 or 13.2 of Garnishment Act
60.08(6.1) Where garnishment is sought under section 13.1 or 13.2 of The Garnishment Act, the maintenance creditor or a designated officer shall serve upon the garnishee, by personal service, by an alternative to personal service under rule 16.03, or by mail under rule 16.06,
(a) the notice of garnishment (Form 60F or 60F.1);
(b) a blank garnishee's statement (Form 60G.1); and
(c) where the debt is for wages under clause 13.1(b) of The Garnishment Act, a memorandum as required by section 12 of that Act.
M.R. 182/95; 48/2005
60.08(6.1.1) Where the garnishment is sought by a designated officer, in addition to the methods of service referred to in subrule (6.1), the designated officer may serve the garnishment documents by faxing copies of the documents to the garnishee in accordance with subrule (6.1.2). But where service is made under this subrule between 5 p.m. and midnight, it shall be deemed to have been made on the following day.
60.08(6.1.2) Where the garnishment documents are served by the designated officer by fax, a cover page must be included indicating
(a) the address, telephone number, fax number and the name of the designated officer;
(b) the date of the transmission, the total number of pages transmitted, including the cover page; and
(c) the name and telephone number of a person to contact in the event of a transmission problem.
Garnishee to deliver or mail copies
60.08(6.2) At the time of service of the documents referred to in clauses (6.1)(a) to (c), extra copies of the documents shall be provided to the garnishee and the garnishee shall deliver or mail the copies to the debtor and, if applicable, to any person who holds the garnished money jointly with the debtor, in accordance with clauses 13.3(2)(a) and (b) of The Garnishment Act.
M.R. 182/95; 48/2005
Service to enforce restitution order
60.08(6.3) Where garnishment is sought to enforce a restitution order, the creditor shall serve upon the debtor and the garnishee, by personal service, by an alternative to personal service under rule 16.03 or by mail under rule 16.06,
(a) the notice of garnishment (Form 60E.1);
(b) a blank garnishee's statement (Form 60G); and,
(c) where the debt is for wages, a memorandum as required by section 12 of The Garnishment Act.
Service to enforce forfeited recognizance or fine
60.08(6.4) Where garnishment is sought to enforce a forfeited recognizance order or an order imposing a fine, the creditor shall serve upon the debtor and the garnishee, by personal service, by an alternative to personal service under rule 16.03 or by mail under rule 16.06,
(a) the notice of garnishment (Form 60E.2);
(b) a blank garnishee's statement (Form 60G.1.1); and,
(c) where the debt is for wages, a memorandum as required by section 12 of The Garnishment Act.
Extra copies to garnishee for joint holders
60.08(6.5) At the time of service of the documents referred to in clauses (6.4)(a) to (c), the creditor shall leave extra copies of the documents with the garnishee and the garnishee shall, where applicable, deliver or mail the copies to any person who holds the garnished money jointly with the debtor, in accordance with subsection 14.6(2) of The Garnishment Act.
60.08(7) A notice of garnishment may be served outside Manitoba where the debtor would be entitled to sue the garnishee in Manitoba to recover the debt.
Service at branch of bank, etc.
60.08(8) Where the garnishee is a bank, trust company, loan corporation, credit union or caisse populaire, the garnishee shall be served at the branch at which the debt is payable.
60.08(9) The garnishee is liable to pay to the court or person named in the notice of garnishment any debt of the garnishee to the debtor, up to the amount shown in the notice of garnishment, within seven days after service on the garnishee or seven days after the debt becomes payable, whichever is later.
Garnishment subject to exemptions
60.08(10) A garnishee who makes a payment in accordance with a notice of garnishment shall make the payment subject to any exemptions as set out in The Garnishment Act.
M.R. 182/95
Garnishee's statement for general creditor or restitution order
60.08(11) If a notice of garnishment has been served by a general creditor or to enforce a restitution order, a garnishee who wishes for any reason to dispute the garnishment or who pays into court less than the maximum amount required to be paid as set out in the Notice of Garnishment shall, within seven days after service of the notice of garnishment, file with the court a garnishee's statement (Form 60G) setting out the particulars.
M.R. 98/95; 182/95; 32/2002
Garnishee's statement if maintenance order garnishment
60.08(11.1) A garnishee who is served with a notice of garnishment issued under section 13.1 or 13.2 of The Garnishment Act shall file a garnishee's statement (Form 60G.1) with the court, or the designated officer, as directed in the notice of garnishment, in accordance with the following:
(a) where the garnishment is sought by a maintenance creditor under section 13.1 of The Garnishment Act, within seven days after service of the notice of garnishment if there is no money currently owing or payable from the garnishee to the debtor;
(b) where the garnishment is sought by a designated officer under section 13.1 or 13.2 of The Garnishment Act, within seven days after service of the notice of garnishment
(i) if there is no money currently owing or payable from the garnishee to the debtor; or
(ii) if the monies seized were jointly held by the debtor and one or more other persons;
(c) within seven days after the garnishee is required to deduct the amount sought under the notice of garnishment, if the garnishee does not forward the required amount;
(d) the garnishee wishes to dispute the garnishment for any reason.
M.R. 182/95
Garnishee's statement for fines, etc.
60.08(11.2) A garnishee who is served with a notice of garnishment to enforce a forfeited recognizance order or an order imposing a fine shall, within seven days after service of the notice of garnishment, file a garnishee's statement (Form 60G.1.1) with the court if
(a) the garnishee wishes to dispute the garnishment for any reason;
(b) there is no money currently owing or payable from the garnishee to the debtor;
(c) the garnishee pays into court less than the maximum amount required to be paid as set out in the notice of garnishment; or
(d) the monies seized were jointly held by the debtor and one or more other persons.
60.08(12) If garnishment takes place
(a) on behalf of a general creditor;
(b) on behalf of a creditor under an extra-provincial garnishing order in accordance with section 12.1 of The Garnishment Act;
(c) on behalf of a maintenance creditor under section 13.1 of The Garnishment Act; or
(d) to enforce a restitution order, a forfeited recognizance order or an order imposing a fine;
the court may, on motion by a creditor, debtor, garnishee or any other interested person,
(e) where it is alleged that the debt of the garnishee to the debtor has been assigned or encumbered, order the assignee o encumbrancer to appear and state the nature and particulars of the assignment or encumbrance;
(f) determine the rights and liabilities of the garnishee, the debtor and any assignee or encumbrancer;
(g) vary or suspend any payment to be made under a notice of garnishment; or
(h) determine any other matter in relation to a notice of garnishment.
Hearing if under s. 13.2 of Garnishment Act
60.08(12.1) Where the garnishment is under section 13.2 of The Garnishment Act, a motion may be made to court,
(a) by the debtor or any person who holds money jointly with the debtor, for an order as to the interest of the debtor in accordance with subsections 13.2(3) to (5) of The Garnishment Act; and
(b) by the designated officer or the garnishee to determine any other matter in relation to the notice of garnishment.
M.R. 182/95
Hearing if under s. 14.6 of Garnishment Act
60.08(12.1.1) Where the garnishment is under section 14.6 of The Garnishment Act, a motion may be made to court,
(a) by the debtor or any person who holds money jointly with the debtor, for an order as to the interest of the debtor in accordance with subsections 14.6(3) to (5) of The Garnishment Act; and
(b) by the collection officer or the garnishee to determine any other matter in relation to the notice of garnishment.
Court proceeds in summary manner
60.08(12.2) Where a motion to court is made under subrule (12), (12.1) or (12.1.1), the court may proceed in a summary manner, but where the motion is made to a master and raises a genuine issue of fact or of law, the motion may be adjourned and heard by a judge.
M.R. 182/95; 32/2002
60.08(13) Where the garnishee fails to make payment in accordance with the notice of garnishment and does not file a garnishee's statement, the creditor is entitled on motion to the court, on notice to the garnishee, to an order against the garnishee for payment of the amount that the court finds is payable to the debtor by the garnishee, or the amount set out in the notice, whichever is less.
Payment by garnishee to another person
60.08(14) Where, after service of a notice of garnishment, the garnishee pays a debt attached by the notice to another person, the garnishee remains liable to pay the debt in accordance with the notice.
60.08(15) Payment of a debt by a garnishee in accordance with a notice of garnishment is a valid discharge of the debt, as between the garnishee and the debtor, to the extent of the payment.
Creditor to give notice when order satisfied
60.08(16) Where the amount owing under an order that is enforced by garnishment has been paid by a person other than the garnishee, or otherwise settled, the creditor shall forthwith file and serve a notice of termination of garnishment (Form 60H) on the garnishee.
If designated officer serves notice of termination
60.08(16.1) Subrule (6.1.1) applies, with necessary changes, when a designated officer serves the notice of termination of garnishment.
Garnishment of Pension Benefit Credit under section 14.1 of The Garnishment Act
60.08(17) Where garnishment of a pension benefit credit is sought by a designated officer on behalf of a maintenance creditor in accordance with section 14.1 of The Garnishment Act, the notice of garnishment shall be in Form 60F.2.
M.R. 182/95
Obtaining notice of garnishment
60.08(18) The designated officer shall file with the registrar two copies of a notice of garnishment (Form 60F.2) and an affidavit stating
(a) that the debtor has defaulted in payments owing to a maintenance creditor under a maintenance order;
(b) the amount of arrears under the maintenance order being sought;
(c) the name and address of the garnishee; and
(d) that the designated officer believes that the debtor has a pension benefit credit with the garnishee.
M.R. 182/95
Information and belief in affidavit
60.08(19) The affidavit required by subrule (18) may contain statements of the deponent's information and belief, if the source of the information and the fact of the belief are specified in the affidavit.
M.R. 182/95
60.08(20) On filing the notice of garnishment and affidavit as required by subrule 60.08(18), the registrar shall issue a notice of garnishment for the garnishee and shall return a copy of the notice of garnishment to the designated officer.
M.R. 182/95
Service of notice of garnishment on garnishee
60.08(21) The designated officer shall serve upon the garnishee, by personal service, by an alternative to personal service under rule 16.03 or by mail under rule 16.06,
(a) the notice of garnishment (Form 60F.2); and
(b) a blank garnishee's statutory declaration (Form 60G.2).
M.R. 182/95
Notice of garnishment delivered to debtor
60.08(22) The designated officer shall deliver a copy of the notice of garnishment to the debtor or mail it to the last address of the debtor shown in the designated officer's records.
M.R. 182/95
60.08(23) Where the garnishee is a bank, trust company, loan corporation, credit union or caisse populaire, and the designated officer seeks to garnish a pension benefit credit in a retirement benefit plan prescribed by regulation under The Pension Benefits Act, the garnishee shall be served at the branch at which the retirement benefit plan was established.
M.R. 182/95
Statutory declaration by garnishee
60.08(24) The garnishee shall complete and provide to the designated officer a statutory declaration (Form 60G.2) in the following circumstances:
(a) if the garnishee named in the notice of garnishment is not a "garnishee" as defined in subsection 14.1(1) of The Garnishment Act;
(b) if the garnishee does not forward the amount required under the notice of garnishment to the designated officer;
(c) if the garnishee has notice that there might be a person who is entitled to a division of the debtor's pension benefit credit as of the day of service of the notice of garnishment, as set out in subsection 14.2(2) of The Garnishment Act.
M.R. 182/95
Time for providing statutory declaration
60.08(25) A garnishee shall provide the designated officer with the statutory declaration (Form 60G.2) referred to in subrule (24)
(a) within 30 days after the notice of garnishment is served, in the case of a statutory declaration under clause (24)(a); and
(b) within 90 days after the notice of garnishment is served, in the case of a statutory declaration under clause (24)(b) or (c), and in the case of a statutory declaration under clause (24)(c), shall file it in the court within the same time period.
M.R. 182/95
Information and belief in statutory declaration
60.08(26) Subrule (19) (information and belief in affidavit) applies with such modifications as the circumstances require to a statutory declaration referred to in subrule (24).
M.R. 182/95
60.08(27) On motion by a designated officer or a garnishee, the court may
(a) determine the rights and liabilities of the garnishee and the debtor; and
(b) determine any other matter in relation to the notice of garnishment.
M.R. 182/95
Court proceeds in summary manner
60.08(28) Where a motion to court is made under subrule (27), the court may proceed in a summary manner, but where the motion is made to a master and raises a genuine issue of fact or of law, the motion may be adjourned and heard by a judge.
M.R. 182/95
Garnishment hearing re pension benefit credit
60.08(29) A motion made by a designated officer under subsection 14.2(5) of The Garnishment Act shall be made to a judge.
M.R. 182/95
60.08(30) Where the garnishee fails to forward the amount as required in the notice of garnishment and does not file a statutory declaration, the designated officer is entitled on motion to the court, on notice to the garnishee, to an order against the garnishee for payment of the net pension benefit credit, or the amount required in the notice, whichever is less.
M.R. 182/95
Payment by garnishee to another person
60.08(31) Where, after service of a notice of garnishment, the garnishee pays the net pension benefit credit to which the debtor is entitled for purposes of the notice of garnishment, other than as directed in the notice, the garnishee remains liable to pay that amount in accordance with the terms of the notice.
M.R. 182/95
Designated officer to give notice
60.08(32) When the amount owing under a maintenance order that is enforced by garnishment has been paid by a person other than a garnishee, or otherwise settled, the designated officer shall immediately file and serve a notice of termination of garnishment (Form 60H) on the garnishee.
M.R. 182/95
WRIT OF POSSESSION
60.09(1) A writ of possession (Form 60B) may be issued only with leave of the court, obtained on motion without notice, or at the time an order entitling a party to possession is made.
60.09(2) The court may grant leave to issue a writ of possession only where it is satisfied that all persons in actual possession of any part of the land have received sufficient notice of the proceeding in which the order was obtained to have enabled them to apply to the court for relief.
CONTEMPT ORDER
60.10(1) A contempt order to enforce an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained only on motion to a judge in the proceeding in which the order to be enforced was made.
60.10(2) The notice of motion shall be served personally on the person against whom a contempt order is sought, and not by an alternative to personal service, unless the court orders otherwise.
60.10(3) An affidavit in support of a motion for a contempt order may contain statements of the deponent's information and belief only with respect to facts that are not contentious, and the source of the information and the fact of the belief shall be specified in the affidavit.
60.10(4) A judge may issue a warrant for arrest (Form 60I) of the person against whom a contempt order is sought where the judge is of the opinion that the person's attendance at the hearing is necessary in the interest of justice and it appears that the person is not likely to attend voluntarily.
60.10(5) In disposing of a motion under subrule (1) the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,
(a) be imprisoned for such period and on such terms as are just;
(b) be imprisoned upon failure to comply with a term of the order;
(c) pay a fine;
(d) do or refrain from doing an act;
(e) pay such costs as are just; and
(f) comply with any other order that the judge considers necessary;
and may direct the sheriff to take possession of and hold the property of the person in contempt and to collect and hold any income from the property until the person complies with the order.
Where corporation is in contempt
60.10(6) Where a corporation is in contempt, the judge may also make an order under subrule (5) against any officer or director of the corporation.
60.10(7) An order under subrule (5) for imprisonment may be enforced by the issue of a warrant of committal (Form 60J).
Discharging or setting aside contempt order
60.10(8) On motion, a judge may discharge, set aside, vary or give directions in respect of an order under subrules (5) or (6) and may grant such other relief and make such other order as is just.
Order that act be done by another person
60.10(9) Where a person fails to comply with an order requiring that person to do an act, other than the payment of money, a judge on motion may, instead of or in addition to making a contempt order, order the act to be done, at the expense of the disobedient person, by the party enforcing the order or any other person appointed by the judge.
60.10(10) The party enforcing the order and anyperson appointed by the judge are entitled to the costs of the motion under subrule (9) and the expenses incurred in doing the act ordered to be done, fixed by the judge or assessed by an assessment officer in accordance with Rule 58.
FAILURE TO COMPLY WITH INTERLOCUTORY ORDER
60.11 Where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by these rules,
(a) stay the party's proceeding;
(b) dismiss the party's proceeding or strike out the party's defence; or
(c) make such other order as is just.
DISPUTE OF OWNERSHIP OF PROPERTY SEIZED BY SHERIFF
60.12(1) A person who makes a claim in respect of property or the proceeds of property taken or intended to be taken by a sheriff in the execution of any enforcement process against another person shall give to the sheriff notice of the claim and the claimant's address for service.
Notice to creditors by sheriff
60.12(2) On receiving a claim, the sheriff shall forthwith give notice of claim (Form 60K) to every creditor of the debtor who has filed an enforcement process with the sheriff, by mail addressed to the creditor at the address shown on the enforcement process, and each creditor shall within seven days after receiving the notice give the sheriff notice in writing stating whether the claim is admitted or disputed.
60.12(3) Where the sheriff,
(a) receives a notice admitting the claim from every creditor; or
(b) receives a notice admitting the claim from the creditor at whose direction the sheriff took or intended to take the property and does not, within the time prescribed under subrule (2), receive a notice disputing the claim from any other creditor,
the sheriff shall release the property in respect of which the claim is admitted to the debtor from whom it was seized.
60.12(4) On receiving a notice disputing a claim, or on the failure of the creditor at whose direction the sheriff took or intended to take the property to give the required notice within the time prescribed by subrule (2), the sheriff may make a motion or application under rule 43.05 for an interpleader order.
SHERIFF'S REPORT ON EXECUTION OF WRIT
60.13(1) A party or lawyer who has filed a writ with a sheriff may in writing require the sheriff to report the manner in which the writ has been executed and the sheriff shall do so forthwith by mailing to the party or lawyer, a sheriff's report (Form 60L).
60.13(2) Where the sheriff fails to comply with a request made under subrule (1) within a reasonable time, the party serving the request may move before a judge for an order directing the sheriff to comply with the request.
REMOVAL OF WRIT FROM SHERIFF'S FILE
60.14(1) When a writ has been fully executed or has expired, the sheriff shall endorse a memorandum to that effect on the writ, and return it to the court office in which it was issued.
60.14(2) A party or lawyer who has filed a writ with a sheriff may withdraw it as against one or more of the debtors named in it by giving notice in writing to the sheriff,
(a) stating the amounts, if any, received by the creditor from the debtor since the writ was issued; and
(b) requesting the writ be withdrawn.
60.14(3) When a writ is withdrawn, the sheriff shall record the date and time of the withdrawal in a memorandum on the writ, and where it is withdrawn as against all debtors named in it, shall return it to the court office in which it was issued.
DUTY OF PERSON FILING WRIT WITH SHERIFF
60.15(1) Where a writ of seizure and sale has been filed with a sheriff and any payment has been received by or on behalf of the creditor, the creditor shall forthwith give the sheriff notice of the payment.
60.15(2) Where an order has been satisfied in full, the creditor shall withdraw all writs of execution relating to the order from the office of any sheriff with whom they have been filed.
60.15(3) Where the creditor fails to withdraw a writ as required by subrule (2), the court on motion by the debtor may order that the writ be withdrawn.
60.16 Where a question arises in relation to the measures to be taken by a sheriff in carrying out an order or writ, the sheriff or any interested person may make a motion to the court for directions.
EXAMINATION IN AID OF EXECUTION
60.17(1) In subrules (2) to (6),
"creditor" includes a person entitled to obtain or enforce a writ of possession or delivery; and (« créancier »)
"debtor" includes a person against whom a writ of possession or delivery may be or has been issued. (« débiteur »)
60.17(2) A creditor may examine the debtor in relation to,
(a) the reason for nonpayment or nonperformance of the order;
(b) the debtor's income and property;
(c) the debts owed to and by the debtor;
(d) the disposal the debtor has made of any property either before or after the making of the order;
(e) the debtor's present, past and future means to satisfy the order;
(f) whether the debtor intends to obey the order or has any reason for not doing so; and
(g) any other matter pertinent to the enforcement of the order.
60.17(3) An officer or director of a corporate debtor or, in the case of a debtor that is a partnership or sole proprietorship, a partner or sole proprietor against whom the order may be enforced, may be examined on behalf of the debtor in relation to the matters set out in subrule (2).
60.17(4) Only one examination under subrule (2) or (3) may be held in a 12 month period in respect of a debtor in the same proceeding, unless the court orders otherwise.
60.17(5) Where it appears from an examination under subrules (2) to (4) that a debtor has concealed or made away with property to defeat or defraud creditors, a judge may make a contempt order against the debtor.
Examination of person other than debtor
60.17(6) Where any difficulty arises concerning the enforcement of an order, the court may,
(a) make an order for the examination of any person who the court is satisfied may have knowledge of the matters set out in subrule (2); and
(b) make such order for the examination of any other person as is just.
60.17(7) A person who is to be examined in aid of execution shall be served with an order for examination in aid of execution (Form 34A.1) personally and not by an alternative to personal service.
60.17(8) If the person who is served with an order for examination in aid of execution fails to attend at the time and place set out in the order, the order may be enforced by a contempt order under rule 60.10.
COSTS OF ENFORCEMENT
60.18(1) A party who is entitled to enforce an order is entitled to the costs of an examination in aid of execution and the issuing, service, enforcement and renewal of a writ of execution and notice of garnishment, unless the court orders otherwise.
Costs to be included or collected
60.18(2) A party entitled to costs under subrule (1) may include in or collect under a writ of execution or notice of garnishment,
(a) the amounts prescribed in the regulations under The Law Fees Act for issuing, renewing and filing with the sheriff the writ of execution or notice of garnishment;
(b) disbursements paid to a sheriff, registrar, official examiner, court reporter or other public officer and to which the party is entitled under subrule (1), on filing with the sheriff or registrar a copy of a receipt for each disbursement;
(c) the minimum amount prescribed in Tariff "A" for conducting an examination in aid of execution, on filing with the sheriff or registrar an affidavit stating that the examination was conducted; and
(d) any other costs to which the party is entitled under subrule (1), on filing with the sheriff or registrar a certificate of assessment of the costs.
(Reserved)
PART XVI
APPEALS
APPEALS TO A JUDGE
PROCEDURE ON APPEAL
62.01(1) Any person affected by an order, decision or certificate of a master, registrar, or assessment officer may appeal therefrom to a judge.
Commencement of and time for appeal
62.01(2) An appeal shall be commenced by filing and serving a notice of appeal (Form 62A) on all parties whose interests may be affected by the appeal, within 14 days after the signing of the order or certificate appealed from.
M.R. 26/97
62.01(3) The appellant shall obtain a hearing date from the registrar, and the notice of appeal shall name that date which shall not be less than 14 days after service of the notice of appeal.
62.01(4) A notice of appeal shall be filed in the administrative centre where the court file is located.
62.01(5) Rule 37.05 (Place of Hearing of Motions) applies, with necessary modifications, to the place of hearing of appeals under this rule.
62.01(6) The notice of appeal shall state the relief sought and the grounds of appeal, and no grounds other than those stated in the notice may be relied on at the hearing, except with leave of the judge hearing the appeal.
62.01(7) The appellant shall, at the time of obtaining a hearing date, file in the judicial centre in which the appeal is to be heard and serve on all other parties, an appeal brief consisting of:
(a) a copy of the notice of appeal;
(b) a copy of the order, decision or certificate appealed from, as signed, and the reasons, if any;
(c) the evidence and all other material that was before the officer appealed from as is necessary for the hearing of the appeal;
(d) any further evidence adduced under subrule (10);
(e) a list of any cases and statutory provisions to be relied on by the appellant; and
(f) a list of the points to be argued.
62.01(8) The respondent shall, at least seven days before the hearing, file and serve on all other parties,
(a) any further material that was before the officer appealed from and is necessary for the hearing of the appeal;
(b) any further evidence adduced under subrule (10);
(c) a list of any cases and statutory provisions to be relied on by the respondent; and
(d) a list of the points to be argued.
62.01(9) A judge before or at the hearing of the appeal may dispense with compliance with subrules (7) and (8) in whole or in part.
Adducing further evidence at appeal hearing
62.01(10) The hearing of the appeal shall be a fresh hearing and
(a) if the appeal is from an order, decision or certificate of a registrar or assessment officer, the parties may adduce further evidence; and
(b) if the appeal is from an order, decision or certificate of a master, the parties may not adduce further evidence, except with leave of the judge hearing the appeal.
62.01(11) Clause (10)(b) applies to an appeal from an order, decision or certificate of a master where the motion or application that resulted in the order, decision or certificate being appealed, was filed on or after January 1, 2007.
STAY PENDING APPEAL
NO AUTOMATIC STAY ON DELIVERY OF NOTICE OF APPEAL
63.01(1) An appeal to the Court of Appeal shall not operate as a stay of execution or of proceedings under the order appealed from, but a judge may order a stay either unconditionally or on terms.
63.01(2) An appeal to a judge from a master, registrar or assessment officer shall not operate as a stay of proceedings under the order or decision appealed from but the officer appealed from or a judge may order a stay either unconditionally or on terms.
STAY PENDING APPEAL
63.02(1) A judge may stay an order pending the filing of a notice of appeal.
63.02(2) The court, including the officer whose decision is to be appealed, may stay an order or decision of a master, registrar or assessment officer pending the filing of a notice of appeal.
63.02(3) In granting a stay under subrules (1) or (2), the court may impose such terms as are just.
EFFECT OF STAY
63.03(1) Where an order is stayed, no steps may be taken under the order or for its enforcement, except,
(a) by order of a judge; or
(b) as provided in subrules (2) and (3).
Entry of order and assessment of costs
63.03(2) A stay does not prevent the settling, signing and filing of the order or the assessment of costs.
63.03(3) A stay does not prevent the issue of a writ of execution or a certificate of judgment and does not prevent the filing of the writ in a sheriff's office or the filing of the certificate of judgment in a land titles office, but no instruction or direction to enforce the writ shall be given to a sheriff and no proceedings for sale pursuant to the certificate of judgment shall be taken while the stay remains in effect.
63.03(4) Where an order is stayed, the registrar of the court shall issue, on requisition by a party to the appeal, a certificate of stay (Form 63A) and, when the certificate has been filed with the sheriff, the sheriff shall not commence or continue enforcement of the order until satisfied that the stay is no longer in effect.
63.03(5) A requisition for a certificate of stay shall state whether the stay is under rule 63.01 or under rule 63.02 and shall set out particulars of the order.
