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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