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Forms
Court of King's Bench Rules
Manitoba Regulation 553/88
Information about amendments
Court of King's Bench references: The title and references in these rules to the Court of Queen's Bench have been updated to reflect the change to the Court of King’s Bench. See The Court of King’s Bench Act, C.C.S.M. c. C280, s. 3.
Amendments included: 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; 13/2008; 14/2008; 87/2008; 88/2008; 148/2009; 149/2009; 18/2010; 27/2010; 28/2010; 69/2010; 139/2010; 140/2010; 162/2011; 177/2011; 215/2011; 60/2012; 128/2012; 134/2012; 54/2014; 258/2014; 271/2014; 17/2015; 98/2015; 164/2015; 165/2015; 23/2016; 160/2016; 161/2016; 162/2016; 163/2016; 130/2017; 143/2017; 11/2018; 12/2018; 13/2018; 14/2018; 170/2018; 109/2019; 121/2019; 42/2020; 43/2020; 7/2021; 151/2021; 43/2022; 44/2022; 68/2022; 69/2022; 70/2022.
Amendments not yet included: none
Rule 1Citation, Application and Interpretation Rule 2Non-Compliance with the Rules Rule 3Time Rule 4Court Documents Rule 5Joinder of Claims and Parties Rule 6Consolidation or Hearing Together Rule 7Parties Under Disability Rule 8Partnerships and Other Unincorporated Entities Rule 9Estates and Trusts Rule 10Representation Order Rule 11Transfer or Transmission of Interest Rule 12Class Proceedings Rule 13Intervention Rule 14Commencement and Transfer of Proceedings Rule 15Representation by Lawyer Rule 16Service of Documents Rule 17Service Outside Manitoba Rule 18Filing and Serving Statement of Defence Rule 19Default Proceedings Rule 20Summary Judgment Rule 20AExpedited Actions Rule 21Determination of an Issue Before Trial Rule 22Special Case Rule 23Discontinuance and Withdrawal Rule 24Dismissal of Action for Delay Rule 25Pleadings in an Action Rule 26Amendment of Pleadings Rule 27Counterclaim Rule 28Crossclaim Rule 29Third Party Claim Rule 30Discovery of Documents Rule 30.1Deemed Undertaking Rule 31Examination for Discovery Rule 32Inspection of Property Rule 33Physical and Mental Examination of parties Rule 34Procedure on Oral Examinations Rule 35Procedure on Interrogatories Rule 36Taking Evidence Before Trial Rule 37Motions — Jurisdiction and Procedure Rule 38Applications — Jurisdiction and Procedure Rule 39Evidence on Motions and Applications Rule 40Interlocutory Injunction Rule 41Appointment of Receiver Rule 42Pending Litigation Orders Rule 43Interpleader Rule 44Interim Recovery of Personal Property Rule 45Interim Preservation of Property Rule 46Attachment and Garnishment Before Judgment Rule 47Place of Trial Rule 48[Repealed] Rule 49Offer to Settle Rule 50Pre-Trial Management Rule 50.1Case management Rule 51Admissions Rule 52Trial Procedure Rule 53Evidence at Trial Rule 54Directing a Reference Rule 55Procedure on Reference Rule 56Security for Costs Rule 57Award and Fixing of Costs by Court Rule 58Assessment of Costs Rule 59Orders Rule 60Enforcement of Orders Rule 61(Reserved) Rule 62Appeals to a Judge Rule 63Stay Pending Appeal Rule 64Mortgage Actions Rule 65Reciprocal Enforcement of United Kingdom Judgments Rule 66Partition Proceedings Rule 67Proceedings Under The Infants' Estates Act Rule 68Proceedings for Judicial Review Rule 69Default Judgment Under the Hague Service Convention Rule 70Family Proceedings Rule 71Assessment of Lawyer's Bill Rule 72Appointment of Committees Passing of Accounts Rule 73Payment Into and Out of Court Rule 74Uncontested Surrogate Practice Matters Rule 75Contested Surrogate Practice Matters Rule 76Small Claims Rule 77Proceedings Under The Expropriation Act Rule 78Coming Into Force TARIFF A — Tariff of Recoverable Costs TARIFF B — Tariff of Disbursements
Table of Contents
PART I — GENERAL MATTERS
PART II — PARTIES AND JOINDER
PART III — COMMENCEMENT OF PROCEEDINGS
PART IV — SERVICE
PART V — DISPOSITION WITHOUT TRIAL
PART VI — PLEADINGS
PART VII — DISCOVERY
PART VIII — EXAMINATION OUT OF COURT
PART IX — MOTIONS AND APPLICATIONS
PART X — PRESERVATION OF RIGHTS IN PENDING LITIGATION
PART XI — PRE-TRIAL PROCEDURES
PART XII — TRIALS
PART XIII — REFERENCES
PART XIV — COSTS
PART XV — ORDERS
PART XVI — APPEALS
PART XVII — PARTICULAR PROCEEDINGS
PART XVIII — COMING INTO FORCE
PART I
GENERAL MATTERS
RULE 1
CITATION, APPLICATION AND INTERPRETATION
CITATION
These Rules may be cited as the King's Bench Rules.
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
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
These rules apply to all civil proceedings in the Court of King's Bench of Manitoba, except where a statute provides for some other procedure.
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.
Subject to subrule 1.02(2), the Queen's Bench Rules, Manitoba Regulation 115/86, are repealed.
M.R. 150/89
DEFINITIONS
In these rules, unless the context requires otherwise,
"Act" means The Court of King'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 King'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 »)
"family proceeding" means a family proceeding within the meaning of section 41 of The Court of King's Bench Act; (« instance en matière familiale »)
"Hague Service Convention" means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters; (« Convention Notification de La Haye »)
"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,
(c.1) Louis Riel Day (the third Monday in February),
(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 Court of King's Bench, the Associate Chief Justice of the Court of King's Bench and the Associate Chief Justice of the Court of King'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; 148/2009; 11/2018; 43/2022
INTERPRETATION
These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
In applying these rules in a proceeding, the court is to make orders and give directions that are proportionate to the following:
(a) the nature of the proceeding;
(b) the amount that is probably at issue in the proceeding;
(c) the complexity of the issues involved in the proceeding;
(d) the likely expense of the proceeding to the parties.
Where matters are not provided for in these rules, the practice shall be determined by analogy to them.
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
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
ORDERS ON TERMS
When making an order under these rules the court may impose such terms and give such directions as are just.
FORMS
The forms prescribed by these Rules shall be used where applicable and with such variations as the circumstances require.
RULE 2
NON-COMPLIANCE WITH THE RULES
EFFECT OF NON-COMPLIANCE
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.
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.
ATTACKING IRREGULARITY
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
The court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time.
Modification or waiver of rules
If a person acts in a vexatious, evasive, abusive or improper manner or if the expense, delay or difficulty in complying with a rule would be disproportionate to the likely benefit, a judge may, on motion by any party or on his or her own motion, without materials being filed, do one or more of the following:
(a) modify or waive compliance with any rule;
(b) make a costs award or require an advance payment against costs payable, or both;
(c) make any other order respecting a proceeding that the judge considers appropriate in the circumstances.
RULE 3
TIME
COMPUTATION
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
The court may by order extend or abridge any time prescribed by these rules or an order, on such terms as are just.
A motion for an order extending time may be made before or after the expiration of the time prescribed.
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
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.
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.
RULE 4
COURT DOCUMENTS
FORMAT
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.
GENERAL HEADING
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
Subject to a statute, order and rules 4.09 and 4.10, 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.
NOTICE TO BE IN WRITING
Where these rules require notice to be given, it shall be given in writing.
ISSUING AND FILING OF DOCUMENTS
Issuing and filing originating process
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.
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
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
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
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.
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
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.
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.
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.
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.
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
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.
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
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.
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.
REQUISITION
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
The following documents must be kept in a separate court file known as a "B" file:
(a) a document that has been filed or deposited with the court for settlement purposes;
(b) a document that may constitute evidence but that has not yet been tendered as evidence in a proceeding;
(c) a document that a judge has directed to be kept in the "B" file.
Access to the contents of the "B" file in a proceeding shall be restricted to the parties to that proceeding and their lawyers.
ACCESS TO FAMILY PROCEEDING FILES
Access to family proceeding files
Public access to the contents of the court file for a family proceeding is restricted to the following:
(a) a party to the proceeding;
(b) a lawyer for a party to the proceeding;
(c) a person authorized in writing by a party to the proceeding or their lawyer, whose authorization is made on a form approved by the registrar;
(d) a litigation guardian, committee, substitute decision maker, litigation administrator or other person appointed by the court to act on behalf of a party to the family proceeding;
(e) a person providing services in the family proceeding, such as an appraiser, valuator or family evaluator;
(f) lawyers and staff with the Manitoba Prosecution Service, the Public Guardian and Trustee or the Family Law Section, Legal Services Branch of the Department of Justice;
(g) a child and family services agency;
(h) a police service;
(i) a member of a recognized media organization;
(j) a person who has obtained an order authorizing them to access the court file.
Request for access to family proceeding file
A person may request an order authorizing access to the contents of the court file for a family proceeding. The request must be made on a form approved by the registrar.
Unless a judge orders otherwise, the person requesting an order authorizing access to the contents of the court file for a family proceeding must serve the request form on the parties to the proceeding and any other person specified by a judge at least four days before the date on which the hearing on the request is to be heard.
At the hearing of a request for an order authorizing access to the contents of the court file for a family proceeding, the judge may consider the following:
(a) the person's reasons for seeking access to the court file;
(b) any potential prejudice or damage to the parties to the proceeding or a minor child;
(c) the proper administration of justice;
(d) any other relevant factor.
Order may impose limits on access
When making an order authorizing access to the contents of the court file for a family proceeding, a judge may impose conditions or limits on that access, such as prohibitions on the copying of specified documents in the file or restrictions on the uses that may be made of information contained in documents in the file.
PART II
PARTIES AND JOINDER
RULE 5
JOINDER OF CLAIMS AND PARTIES
JOINDER OF CLAIMS
A plaintiff or applicant may, in the same proceeding join any claims the plaintiff or applicant has against an opposite party.
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
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
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
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
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
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.
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
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
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
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
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.
No person shall be added to a proceeding as plaintiff or applicant unless the person's consent is filed.
RELIEF AGAINST JOINDER
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.
RULE 6
CONSOLIDATION OR HEARING TOGETHER
WHERE ORDER MAY BE MADE
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.
In the order, the court may give such directions as are just to avoid unnecessary costs or delay.
DISCRETION OF PRESIDING JUDGE
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.
RULE 7
PARTIES UNDER DISABILITY
REPRESENTATION FOR PERSONS UNDER DISABILITY
Representation for persons under disability
Unless the Court orders or a statute provides otherwise, a proceeding must be commenced, continued or defended on behalf of
(a) a minor, by a litigation guardian;
(b) a person, who has been declared mentally incompetent or incapable of managing his or her own affairs, by the person's committee;
(c) a person who is mentally incompetent or incapable of managing his or her own affairs not so declared,
(i) by a litigation guardian, or
(ii) if the person has appointed an attorney pursuant to a valid enduring power of attorney document which grants the authority to the attorney to conduct legal proceedings on their behalf, by the attorney; or
(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.
[For additional historical information, see the note after this Rule.]
Limitation on authority of litigation guardian, attorney unless authorized by court
A litigation guardian or attorney acting on behalf of a person under disability must not
(a) change arrangements in respect of custody of or access to a child; or
(b) commence divorce proceedings on behalf of an incapable person;
unless the court has specifically granted that power at the request of the litigation guardian or attorney.
Limitation on authority of litigation guardian, attorney absolutely
A litigation guardian or attorney acting on behalf of a person under disability may not give consent on the incapable person's behalf to the adoption or guardianship of a child.
LITIGATION GUARDIAN OF PLAINTIFF OR APPLICANT UNDER DISABILITY
Any person not under disability may, without being appointed by the court, act as litigation guardian of a plaintiff or applicant under disability.
[For additional historical information, see the note after this Rule.]
Every person, other than the Public Guardian and Trustee, who acts as litigation guardian of a plaintiff or applicant under disability must, before acting as a litigation guardian, file an affidavit in which he or she
(a) sets out the nature of the disability of the plaintiff or applicant and, in the case of a minor, the minor's date of birth;
(b) consents to act as litigation guardian in the proceeding;
(c) confirms that he or she has given written authority to a named lawyer to act in the proceeding;
(d) states whether he or she and the party under disability are ordinarily resident in Manitoba;
(e) sets out his or her relationship, if any, to the person under disability;
(f) states that he or she has no interest in the proceeding adverse to that of the person under disability; and
(g) acknowledges having been informed of his or her liability to pay personally any costs awarded against him or her or against the person under disability.
LITIGATION GUARDIAN OF DEFENDANT OR RESPONDENT
A person must not act as litigation guardian of a defendant or respondent under disability until appointed by the court, except as provided in subrule (2).
[For additional historical information, see the note after this Rule.]
Exception where defending counterclaim
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
A person who seeks to act as litigation guardian of a defendant or respondent under disability must bring a motion to be appointed by the court before acting as litigation guardian.
A person who brings a motion for the appointment of a litigation guardian of a person under disability must provide evidence on the motion concerning
(a) the nature of the disability and, in the case of a minor, the minor's date of birth;
(b) the nature of the proceeding;
(c) the date on which the cause of action arose and the date on which the proceeding was commenced;
(d) service of the originating process and the request for appointment of litigation guardian, where applicable; and
(e) whether the person under disability ordinarily resides in Manitoba; and,
except where the proposed litigation guardian is the Public Guardian and Trustee, evidence,
(f) concerning the relationship, if any, of the proposed litigation guardian to the person under disability;
(g) whether the proposed litigation guardian ordinarily resides in Manitoba;
(h) 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 person under disability, and
(iv) acknowledges having been informed that he or she may incur costs that may not be recovered from another party.
Motion by plaintiff or applicant to appoint litigation guardian
Where a defendant or respondent under disability has been served with an originating process and no motion has been made under subrule (3) for the appointment of a litigation guardian, a plaintiff or applicant, before taking any further step in the proceeding, must bring a motion for an order appointing a litigation guardian for the party under disability and provide evidence on the motion as required under subrule (4).
At least 10 days before moving for the appointment of a litigation guardian, a plaintiff or applicant must 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.
The request may be served on the party under disability with the originating process.
The court may dispense with the requirement for service of the motion for the appointment of a litigation guardian upon the party under disability.
Serving Public Guardian and Trustee
A plaintiff or applicant who brings a motion to appoint the Public Guardian and Trustee as the litigation guardian must serve the notice of motion and the material required under subrule (4) on the Public Guardian and Trustee.
Appointment of Public Guardian and Trustee
In a motion under rule 7.03, when the court is satisfied that a litigation guardian should be appointed and there is no other person willing and able to act, the court must appoint the Public Guardian and Trustee as litigation guardian.
[For additional historical information, see the note after this Rule.]
POWERS AND DUTIES OF LITIGATION GUARDIAN, COMMITTEE, ATTORNEY OR SUBSTITUTE DECISION MAKER
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, attorney or substitute decision maker.
[For additional historical information, see the note after this Rule.]
A litigation guardian, committee, attorney or substitute decision maker must 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.
A litigation guardian, committee, attorney or substitute decision maker other than the Public Guardian and Trustee must be represented by a lawyer and must instruct the lawyer in the conduct of the proceeding.
REMOVAL OR SUBSTITUTION OF LITIGATION GUARDIAN, COMMITTEE, ATTORNEY OR SUBSTITUTE DECISION MAKER
Continuation without litigation guardian
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 registrar 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, attorney or substitute decision maker has been acting ceases to be under disability, the party or the litigation guardian, committee, attorney or substitute decision maker may move without notice for an order to continue the proceeding without the litigation guardian, committee, attorney or substitute decision maker;
and the order shall be served forthwith on every other party and on the litigation guardian, committee, attorney or substitute decision maker.
[For additional historical information, see the note after this Rule.]
Removal of litigation guardian, committee, attorney or substitute decision maker in a legal proceeding
Where it appears to the court that a litigation guardian, committee, attorney or substitute decision maker is not acting in the best interests of the party under disability or is disqualified from acting by virtue of having interests adverse to the incapable person, the court may substitute the Public Guardian and Trustee or any other person to act as litigation guardian of the party under disability.
NOTING PARTY UNDER DISABILITY IN DEFAULT
No default without leave of judge
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.
[For additional historical information, see the note after this Rule.]
Notice of a motion for leave under subrule (1) must be served
(a) upon the litigation guardian, committee, attorney or substitute decision maker of the party under disability; and
(b) unless a judge orders otherwise, upon the Public Guardian and Trustee.
APPROVAL OF SETTLEMENT
No settlement of claim without judge's approval
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, unless a statute provides otherwise.
[For additional historical information, see the note after this Rule.]
No judgment on consent without judge's approval
Judgment may not be obtained on consent in favour of or against a party under disability without the approval of a judge, unless a statute provides otherwise.
Settlement where no proceeding commenced
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.
Notice to Public Guardian and Trustee
Notice of a motion or application for the approval of a judge under this rule must, unless the judge orders otherwise, be served
(a) upon the Public Guardian and Trustee; and
(b) where the party under disability is a defendant or respondent, upon the litigation guardian, committee, attorney or substitute decision maker.
Material required for approval
On a motion or application for the approval of a judge under this rule, the following must be served and filed with the notice of motion or notice of application:
(a) an affidavit of the litigation guardian, committee, attorney or substitute decision maker setting out the material facts and the reasons supporting the proposed settlement and the position of the litigation guardian, committee, attorney or substitute decision maker in respect of the settlement, including the manner in which any funds to which the party under disability is entitled are to be paid;
(b) an affidavit of the lawyer acting for the litigation guardian, committee, attorney 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 16 years, the minor's consent in writing, unless the judge orders otherwise;
(d) a copy of the minutes of the proposed settlement, if any.
Any money payable to a person under disability under an order or a settlement must be paid in such manner as directed by a judge.
[For additional historical information, see the note after this Rule.]
Note: Rule 7 was reorganized when it was replaced by M.R. 130/2017. Before that, it had been amended by the following regulations: 13/93; 14/94; 185/96; 207/2004; 163/2016.
RULE 8
PARTNERSHIPS AND OTHER UNINCORPORATED ENTITIES
PARTNERSHIPS
A proceeding by or against two or more persons as partners may be commenced using the firm name of the partnership.
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.
DEFENCE
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
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).
The notice (Form 8A) shall be served within the time provided for the service of originating process.
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.
PERSON DEFENDING SEPARATELY
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
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.
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
An order against a partnership using the firm name may be enforced against the property of the partnership.
Against person served as partner
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
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.
SERVICE OF NOTICE
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
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.
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.
ASSOCIATIONS
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
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]
RULE 9
ESTATES AND TRUSTS
PROCEEDINGS BY OR AGAINST PERSONAL REPRESENTATIVE OR TRUSTEE
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.
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
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
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
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.
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.
An order in a proceeding to which the Public Guardian and Trustee or a litigation administrator is a party binds the estate of the deceased person, but has no effect on the Public Guardian and Trustee or litigation administrator in his or her personal capacity, unless a judge orders otherwise.
REMEDIAL PROVISIONS
Proceedings before probate or administration
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
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 Guardian and 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
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 Guardian and Trustee or a litigation administrator appointed for the proceeding, and the title of the proceeding shall be amended accordingly.
Litigation administrator and personal representative
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.
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
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.
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.
RULE 10
REPRESENTATION ORDER
REPRESENTATION OF AN INTERESTED PERSON
Proceedings in which order may be made
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
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
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.
A settlement approved under subrule (3) binds the interested persons who are not parties, subject to rule 10.03.
REPRESENTATION OF A DECEASED PERSON
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
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.
RULE 11
TRANSFER OR TRANSMISSION OF INTEREST
EFFECT OF TRANSFER OR TRANSMISSION
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
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
An order to continue shall be served forthwith on every other party.
FAILURE TO OBTAIN ORDER TO CONTINUE ACTION
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
RULE 12
CLASS PROCEEDINGS
In this Rule, "Act" means The Class Proceedings Act.
Class proceedings shall be conducted in accordance with the Act.
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 KING'S BENCH
_________________Centre
(Proceeding under The Class Proceedings Act)
RULE 13
INTERVENTION
LEAVE TO INTERVENE AS ADDED PARTY
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.
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
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
RULE 14
COMMENCEMENT AND TRANSFER OF PROCEEDINGS
HOW PROCEEDINGS COMMENCED
By issuing originating process
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).
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.
Where leave of the court is required to commence a proceeding, the leave shall be sought by preliminary motion.
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
Every proceeding shall be by action, except where a statute or these rules provide otherwise.
ACTIONS - BY STATEMENT OF CLAIM
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
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
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
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
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
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.
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.
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.
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.
TIME FOR SERVICE IN ACTIONS
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
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).
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.
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.
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.
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.
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
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.
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.
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.
TRANSFER OF APPLICATIONS
Rule 14.08, excepting subrule (1) thereof, applies with necessary modification to the transfer of an application.
[Repealed]
M.R. 146/90
DISCONTINUANCE OF ACTION WHERE DEFENDANT PAYS CLAIM
Where a plaintiff's claim is for a stated amount of money only and a defendant pays the amount of the claim and $750 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; 128/2012
RULE 15
REPRESENTATION BY LAWYER
WHERE LAWYER IS REQUIRED
A party to a proceeding who is under disability or acts in a representative capacity shall be represented by a lawyer.
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.
Any other party to a proceeding may act in person or be represented by a lawyer.
LIMITED RETAINER
Retaining lawyer for limited purpose
If a party to a proceeding who is acting in person or a lawyer of record retains a lawyer to appear before the court for a particular purpose, the lawyer appearing must inform the court of the nature of the appearance before the appearance by filing the terms of the retainer, other than terms related to fees and disbursements.
If a party to a proceeding who is acting in person retains a lawyer for a particular purpose, the party must attend the hearing or proceeding for which the lawyer is retained unless the court orders otherwise.
CHANGE IN REPRESENTATION BY PARTY BEFORE TRIAL DATE SET
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
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
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
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
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.
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.
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.
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
A lawyer may by motion request an order removing him or her as the lawyer of record in a proceeding.
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.
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.
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
The order removing a lawyer from the record shall, unless otherwise ordered, set out the party's last known address.
DUTY OF LAWYER TO CONTINUE
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
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
RULE 16
SERVICE OF DOCUMENTS
GENERAL RULES FOR MANNER OF SERVICE
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.
An originating process need not be served on a party who has filed a defence or an answer without being served.
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.
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
Except where these rules specifically provide otherwise, 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;
Attorney General of Canada or agency of the Crown in Right of Canada
(f) on the Deputy Attorney General of Canada or the chief executive officer of the agency in whose name the proceedings are taken, in accordance with subsection 23(2) of the Crown Liability and Proceedings Act (Canada);
The Government of Manitoba
(g) on the Attorney General of Manitoba, the Deputy Attorney General, an Assistant Deputy Attorney General or other person, in accordance with section 11 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 Guardian and 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; 162/2011; 17/2015; 162/2016; 163/2016
A person effecting personal service of a document need not produce the original document or have possession of it.
ALTERNATIVES TO PERSONAL SERVICE
Where service by an alternative to personal service is permitted, service shall be made in accordance with this rule.
Acceptance of service by lawyer
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.
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
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).
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.
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
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.
Subrule (1) does not apply when service must be made in accordance with the Hague Service Convention.
In an order for substituted service, the court shall specify when service in accordance with the order is effective.
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
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.
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
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
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
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.
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
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
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.
VALIDATING SERVICE
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.
Subrule (1) does not apply when service must be made in accordance with the Hague Service Convention.
PROOF OF SERVICE
Service of a document may be proved by an affidavit of the person who served it (Form 16B).
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
A lawyer's written admission or acceptance of service is sufficient proof of service and need not be verified by affidavit.
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.
Exception for service under Hague Service Convention
Proof of service of a document in a contracting state to the Hague Service Convention must be made in accordance with the requirements of subrule 17.05.2(2).
PROOF OF SERVICE OF NOTICE OF CHANGE IN REPRESENTATION UNDER SUBRULE 15.02(1) OR (2)
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
RULE 17
SERVICE OUTSIDE MANITOBA
In this Rule,
"central authority" means the central authority for a contracting state that has been designated in accordance with the Hague Service Convention. (« autorité centrale »)
"contracting state" means a contracting state to the Hague Service Convention, other than Canada. (« État contractant »)
"originating process" includes a crossclaim, a counterclaim against only the parties to the main action and an initiating pleading under rule 70.01. (« acte introductif d'instance »)
SERVICE OUTSIDE MANITOBA WITHOUT LEAVE
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.
M.R. 150/89; 31/91; 43/2022
SERVICE OUTSIDE MANITOBA WITH LEAVE
In any case to which rule 17.02 does not apply, the court may grant leave to serve an originating process outside Manitoba.
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
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.
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
Subject to rule 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.
[Repealed]
SERVICE OUTSIDE CANADA
Service under Hague Service Convention
Subject to subrule (2), an originating process or other document to be served in a contracting state must be served
(a) through the central authority in the contracting state using the form required under the Hague Service Convention; or
(b) in another manner provided under the Hague Service Convention.
Exception in contracting state
An originating process or other document that is to be served in a contracting state outside Canada must be served in accordance with rule 17.05 if
(a) the address of the person to be served is unknown; or
(b) the contracting state has determined that the Hague Service Convention does not apply.
In all other situations where an originating process or other document is to be served outside Canada, the originating process or other document must be served in accordance with rule 17.05.
NOTE: The text of the Hague Service Convention, the names of contracting states, information regarding central authorities, and the forms required under the Convention as well as other related information can be accessed at the website of the Permanent Bureau of the Hague Conference on Private International Law (www.hcch.net).
PROOF OF SERVICE
General rule re proof of service
Subject to subrule (2), service of a document outside Manitoba 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.
Proof of service in contracting state
If service of a document takes place in a contracting state outside Canada, the party serving the document must provide the court with
(a) proof that the service was made in accordance with the Hague Service Convention, including the use of any required forms; or
(b) in cases where subrule 17.05.1(2) applies,
(i) evidence that one of the circumstances set out in that subrule apply, and
(ii) proof of service in accordance with subrule (1).
SETTING ASIDE SERVICE OUTSIDE MANITOBA
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.
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.
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.
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
No leave is required for service out of Manitoba of any document in a proceeding other than an originating process.
RULE 18
FILING AND SERVING STATEMENT OF DEFENCE
Subject to subrule 19.01.1(1) (filing of defence stayed if motion to strike filed), 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
RULE 19
DEFAULT PROCEEDINGS
NOTING DEFAULT
Subject to subrule (4), rule 19.01.1 and subrule 19.04(1.1), 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.
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
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
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
A defendant may file a statement of defence at any time before default is noted under this rule.
REQUIREMENT TO FILE DEFENCE STAYED IF MOTION TO STRIKE FILED
Filing of defence stayed if motion to strike filed
In any of the following circumstances, a defendant is not required to file and serve a statement of defence until 20 days after the defendant's motion to strike out the statement of claim has been finally determined:
(a) a defendant who has been served with a statement of claim and files and serves a notice of motion to strike out the statement of claim pursuant to rule 25.11 within the time prescribed by rule 18.01 for filing and serving a statement of defence;
(b) a defendant to a counterclaim who has been served with a statement of defence and counterclaim and files and serves a notice of motion to strike out the counterclaim pursuant to rule 25.11 within the time prescribed by rule 27.05(1) for filing and serving a statement of defence to a counterclaim;
(c) a defendant to a crossclaim who has been served with a statement of defence and crossclaim and files and serves a notice of motion to strike out the crossclaim pursuant to rule 25.11 within the time prescribed by rule 28.05(1) for filing and serving a statement of defence to a crossclaim;
(d) a defendant to a third party claim who has been served with a third party claim and files and serves a notice of motion to strike out the third party claim pursuant to rule 25.11 within the time prescribed by rule 29.03 for filing and serving a defence to a third party claim.
The registrar must not note default against a defendant referred to in clauses (1)(a) to (d) during the period referred to in subrule (1) unless the court orders otherwise.
CONSEQUENCES OF NOTING DEFAULT
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).
Nothing in this rule shall prevent a defendant from moving to set aside the noting of default or any judgment obtained by default.
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.
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
The noting of default may be set aside by the court on such terms as are just.
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
Subject to subrule (1.1), 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).
Subrule (1) does not apply when a defendant has been served in accordance with the Hague Service Convention.
Requisition for default judgment
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
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
Where the claim has been partially satisfied, the default judgment shall be confined to the remainder of the claim.
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 King'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
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
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.
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.
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.
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
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.
EFFECT OF DEFAULT JUDGMENT
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
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.
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.
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
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).
RULE 20
SUMMARY JUDGMENT
MOTION FOR SUMMARY JUDGMENT
A party may bring a motion, with supporting affidavit material or other evidence, for summary judgment on all or some of the issues raised in the pleadings in the action.
[For additional historical information, see the note after this Rule.]
Motion must be heard by pre-trial judge
Subject to subrule 50.04(2), a motion for summary judgment may only be scheduled after a pre-trial conference for the action has been held. The motion is to be heard by the pre-trial judge for the action.
CONDUCT OF SUMMARY JUDGMENT MOTION
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 requiring a trial.
[For additional historical information, see the note after this Rule.]
The judge must grant summary judgment if he or she is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
[For additional historical information, see the note after this Rule.]
When making a determination under subrule (1), the judge must consider the evidence submitted by the parties and he or she may exercise any of the following powers in order to determine if there is a genuine issue requiring a trial:
(a) weighing the evidence;
(b) evaluating the credibility of a deponent;
(c) drawing any reasonable inference from the evidence;
unless it is in the interests of justice for these powers to be exercised only at trial.
If the judge is satisfied that the only genuine issue is the amount to which a party is entitled, he or she may order a trial of that issue or grant judgment with a reference to determine the amount.
Only genuine issue is question of law
If the judge is satisfied that the only genuine issue is a question of law, he or she may determine the question and grant judgment accordingly.
Action may proceed for other relief
A plaintiff who obtains summary judgment may proceed against the same defendant for any other relief and against any other defendant for the same or any other relief.
[For additional historical information, see the note after this Rule.]
If it appears that the enforcement of a summary judgment should be stayed pending the determination of any other issue in the action or a counterclaim, crossclaim or third party claim, the judge may so order on such terms as are just.
APPLICATION TO COUNTERCLAIMS, CROSSCLAIMS AND THIRD PARTY CLAIMS
Rules 20.01 to 20.04 apply with necessary modifications, to counterclaims, crossclaims, and third party claims.
Note: Rule 20 was reorganized when it was replaced by M.R. 121/2019. Before that, it had been amended by the following regulations: 184/96; 54/2014; 130/2017.
RULE 20A
EXPEDITED ACTIONS
APPLICATION
The procedure set out in this Rule applies to all actions where the relief claimed is a liquidated or unliquidated amount not exceeding $100,000, exclusive of interest and costs. This Rule applies even if the plaintiff claims related relief in the action.
[For additional historical information, see the note after this Rule.]
Counterclaim or other proceedings not a bar to application
Unless the court orders otherwise, an action described in subrule (1) is subject to this Rule even if a counterclaim, third party claim or crossclaim has been filed and even if the amount claimed in any counterclaim, third party claim or crossclaim exceeds $100,000.
Actions to which this Rule does not apply
This Rule does not apply to
(a) a family proceeding; or
(b) a class proceeding within the meaning of The Class Proceedings Act.
The court may, on motion,
(a) order that an action is not subject to this Rule; or
(b) for the purpose of subrules (17) and (18), order that a claim be designated as a claim for less than $50,000, or as a claim for $50,000 or more.
The King's Bench Rules apply to an expedited action. In the event of a conflict between this Rule and any other rule, this Rule applies.
Every document in an action to which this Rule applies must have the following heading:
THE KING'S BENCH ______________ CENTRE
(Expedited Action — Rule 20A)
DOCUMENT DISCLOSURE
For the purpose of this Rule, the description of a relevant document in clause 30.01(1)(c) does not apply and a "relevant document" means
(a) a document referred to in a party's pleading;
(b) a document to which a party intends to refer at the trial; or
(c) a document in a party's control or possession or that once was in a party's control or possession that could be used by any party at trial to prove or disprove a material fact, including a document that may show that a party is advancing a position that is not credible.
Within 30 days after the close of pleadings, each party must,
(a) prepare and serve on every other party, an affidavit
(i) attaching a list of all relevant documents, and
(ii) identifying those relevant documents over which the party claims privilege; and
(b) at the request of the other party, serve on every other party
(i) a paper copy of each of the listed relevant documents, except those over which privilege is claimed, or
(ii) an electronic copy of the document, if producing an electronic copy is necessary to comply with the principle of proportionality set out in subrule 1.04(1.1), or if the requesting party consents.
The cost of producing or copying a document must be paid by the person requesting the production or copy. However, the court may, on motion, allocate the cost of production or copying between the parties if that is considered appropriate in the circumstances.
Continuing obligation to provide complete list of relevant documents
A party who having prepared and served an affidavit attaching a list of relevant documents later learns that the list is inaccurate or incomplete, is under a continuing obligation
(a) to add to the list all relevant documents that must be added to provide an accurate and complete list of the documents of which disclosure is required under clause (8)(a); and
(b) as soon as possible, to serve on each party the revised affidavit and a copy of each newly-listed document, in accordance with subrule (8).
Inspection of relevant documents
A party must, on request, make the originals of the paper documents specified on a list of relevant documents provided under subrule (8) or (10) available for inspection, except those over which privilege is claimed,
(a) at the address for service of that party; or
(b) at another location as that party and the party requesting inspection may agree.
Order for inspection — electronic equipment
The court may, on motion,
(a) order an inspection of any electronic equipment on which documents are or may be electronically recorded; or
(b) make any other order relating to inspection of the electronic equipment or relating to electronically stored documents, except those over which privilege is properly claimed.
Party may request additional documents
If a party who has received another party's list of relevant documents believes that the list omits relevant documents that should have been disclosed under subrule (8) or (10), the party may, by written demand, require the other party to
(a) add the documents referred to in the demand to the list of relevant documents;
(b) serve on the demanding party a revised affidavit with the revised list and copies of the newly-listed documents, except those over which privilege is claimed; and
(c) make the originals of the newly-listed documents available for inspection in accordance with subrule (11).
Motion for production of documents
If a party who receives a demand under subrule (13) does not fully comply with it, the party making the demand may bring a motion to court seeking an order requiring the party who received the demand to comply with it.
On a motion under subrule (14) in relation to a list or revised list of documents, the court may order the party who prepared the list to
(a) add to the list any documents that should have been disclosed under subrules (8) and (10);
(b) serve each other party with a revised affidavit attaching the revised list and copies of the newly-listed documents, except those over which privilege is properly claimed; and
(c) make the originals of the newly-listed documents available for inspection in accordance with subrule (11).
EXAMINATIONS FOR DISCOVERY AND INTERROGATORIES
The availability and conduct of an examination for discovery or interrogatories in an expedited action is subject to the limitations in subrules (17) and (18).
R.M. 130/2017
Discovery limits — relief claimed less than $50,000
Where the relief claimed is less than $50,000 — or has been designated as a claim for less than $50,000 — the following applies to the discovery process:
(a) no party to the action may conduct an examination for discovery, without leave of the court;
(b) leave to conduct an examination for discovery will not be granted under clause (a) unless the party seeking to conduct the examination can demonstrate that there are exceptional circumstances that make it just, less expensive and more expeditious to conduct an examination for discovery in the action;
(c) subject to clause (d), if the court allows an examination for discovery of a party, the examination must not take longer than three hours;
(d) the court may extend the time allowed for an examination for discovery if satisfied that the party being examined unduly frustrated or obstructed the examination for discovery;
(e) no interrogatories may be delivered without leave of the court.
Discovery limits — relief claimed $50,000 or more
Where the relief claimed is $50,000 or more — or has been designated as a claim for $50,000 or more — the following applies to the discovery process:
(a) subject to an order of the court, each of the parties to the action has the right to an examination for discovery that does not exceed three hours in duration, unless extended under clause (b);
(b) the court may extend the time allowed for an examination for discovery if
(i) the party being examined has unduly frustrated or obstructed the examination for discovery, or
(ii) the court or the pre-trial judge is satisfied that there are exceptional circumstances that make it just, less expensive and more expeditious to conduct an extended examination for discovery in the action;
(c) no interrogatories may be delivered without leave of the court.
No obligation to provide information
No party is obliged to undertake to provide information at an examination for discovery, unless production of the information sought is consistent with the principle of proportionality set out in subrule 1.04(1.1).
WITNESSES
Subject to subrule (21), each party to an expedited action must file and serve on every other party the following information within the applicable period set out in subrule (23):
(a) a list of the names of the witnesses, and, unless exceptional circumstances exist, the addresses of the witnesses that the party serving the list proposes to call at the trial, and the list of witnesses must include
(i) the party serving the list, if that party intends to give evidence at trial, and
(ii) any expert witnesses permitted by subrule (26);
(b) a list of the names and, unless exceptional circumstances exist, the addresses of all other persons who the party serving the list reasonably believes to have relevant knowledge of the matters at issue, but who the party does not intend to call as witnesses;
(c) a summary of the material evidence of each proposed witness, other than an expert witness;
(d) a summary of the party's material evidence which must be signed by the party.
If a party conducts examinations for discovery, the party is not required to file the summaries of material evidence required under clause (20)(d).
R.M. 130/2017
Use of party's summary of evidence
The summary of a party's material evidence referred to in clause (20)(d) may be used in the same manner as an examination for discovery is used at trial.
Time for disclosing required information
The information required under subrule (20)
(a) must be served by the plaintiff on every other party within the later of the following periods:
(i) 60 days after the close of pleadings,
(ii) 60 days after any examinations for discovery permitted under this Rule have been completed; and
(b) must be served by a defendant on every other party, within 60 days after receiving the plaintiff's information required under subrule (20).
Subject to subrule (25), at the trial of an expedited action, a party may not call a person as a witness unless the person's name and summary of material evidence have been provided in accordance with subrule (20) within the time period provided by subrule (23), or as soon as practicable after the witness has been identified.
Despite a failure to comply with the requirements set out in subrule (24), the trial judge may allow a witness to give limited testimony or allow a witness to testify without restriction if he or she considers it appropriate in the circumstances.
Unless the pre-trial judge or the trial judge orders otherwise, each party to an expedited action is entitled to call, to give oral opinion evidence at trial, not more than
(a) one expert of the party's choosing; and
(b) if the expert referred to in clause (a) does not have the expertise necessary to respond to the other party's expert, one expert to provide the required response.
Unless the pre-trial judge or the trial judge orders otherwise, a party calling an expert must file and serve on every other party a report from the expert as follows:
(a) in the case of a plaintiff, within 60 days after the plaintiff has filed a summary of material evidence or all examinations for discovery have been completed, whichever is later; or
(b) in the case of a defendant, within 60 days after the plaintiff has filed an expert report or, if no expert report is filed, within 60 days after the expiry of the applicable deadline set out in clause (a).
The pre-trial judge may, on his or her own motion, or on the motion of a party, order the parties to retain a jointly instructed expert to give a required opinion at trial rather than permit experts to be retained individually by each party to address the same issue.
Procedure re jointly instructed experts
If the pre-trial judge orders that a jointly instructed expert be retained, the following applies:
(a) unless the parties agree on the selection of an expert, the pre-trial judge may
(i) select the expert from a list prepared or identified by the parties, or
(ii) specify another manner in which the expert is to be selected;
(b) each party may give instructions to the expert;
(c) a party who gives instructions to the expert must, at the same time, serve a copy of the instructions on each of the other parties;
(d) the pre-trial judge may give directions about
(i) the payment of the expert's fees and expenses,
(ii) any inspection, examination or experiments which the expert wishes to carry out, and
(iii) the instructions to be given to the expert;
(e) the pre-trial judge may, before an expert is instructed,
(i) limit the amount that can be paid by way of fees and expenses to the expert, and
(ii) direct that the instructing parties pay that amount into court;
(f) unless the pre-trial judge orders otherwise, the instructing parties are jointly and severally liable for the payment of the expert's fees and expenses.
SANCTIONS
The court must
(a) make an order for costs against a party; or
(b) strike out the claim or defence of a party;
when a party, without reasonable excuse,
(c) fails to comply with a time limit imposed by this Rule; or
(d) fails to abide by an order or direction made under this Rule.
Costs under subrule (30) are to be fixed by the court and are payable immediately.
GENERAL MATTERS
Nothing in this Rule limits the amount of a judgment or order that may be made in an action governed by this Rule.
TRANSITIONAL
Transitional — case conference judge
When a case conference judge has been assigned to an expedited action under the former rule, that judge is deemed to be the pre-trial judge for the action and he or she may exercise the powers of a pre-trial judge under Rule 50 in relation to the action.
In subrule (33), "former rule" means Rule 20A as it read immediately before January 1, 2018.
Note: Rule 20A was reorganized when it was replaced by M.R. 130/2017. Before that, it had been amended by the following regulations: 184/96; 229/96; 120/99; 139/2010; 215/2011.
RULE 21
DETERMINATION OF AN ISSUE BEFORE TRIAL
WHERE AVAILABLE
To any party on a question of law
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.
No evidence is admissible under subrule (1) except with leave of a judge or on consent of the parties.
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.
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.
MOTION TO BE MADE PROMPTLY
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.
RULE 22
SPECIAL CASE
WHERE AVAILABLE
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.
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.
FORM OF SPECIAL CASE
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
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.
On the determination of the question of law the court may make an order or grant judgment accordingly.
RULE 23
DISCONTINUANCE AND WITHDRAWAL
DISCONTINUANCE BY PLAINTIFF
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
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 Guardian and 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; 163/2016
EFFECT OF DISCONTINUANCE ON SUBSEQUENT ACTION
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.
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.
COSTS OF DISCONTINUANCE
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
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.
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
Rules 23.01 to 23.04 apply, with necessary modifications, to counterclaims, crossclaims, third party claims and petitions.
M.R. 146/90
RULE 24
DISMISSAL OF ACTION FOR DELAY
MOTION FOR DISMISSAL FOR DELAY
The court may, on motion, dismiss all or part of an action if it finds that there has been delay in the action and that delay has resulted in significant prejudice to a party.
[For additional historical information, see the note after this Rule.]
Presumption of significant prejudice
If the court finds that delay in an action is inordinate and inexcusable, that delay is presumed, in the absence of evidence to the contrary, to have resulted in significant prejudice to the moving party.
What constitutes inordinate and inexcusable delay
For the purposes of this rule, a delay is inordinate and inexcusable if it is in excess of what is reasonable having regard to the nature of the issues in the action and the particular circumstances of the case.
If three or more years have passed without a significant advance in an action, the court must, on motion, dismiss the action unless
(a) all parties have expressly agreed to the delay;
(b) the action has been stayed or adjourned pursuant to an order;
(c) an order has been made extending the time for a significant advance in the action to occur;
(d) the delay is provided for as the result of a case conference, case management conference or pre-trial conference; or
(e) a motion or other proceeding has been taken since the delay and the moving party has participated in the motion or other proceeding for a purpose and to the extent that warrants the action continuing.
[For additional historical information, see the note after this Rule.]
A period of time, not exceeding one year, between service of a statement of claim and service of a statement of defence is not to be included when calculating time under subrule (1).
Excluded time — period under disability
Any period of time when a person is under disability is not to be included when calculating time under subrule (1).
Transitional — no application to motions before January 1, 2019
The court may only apply subrule (1) in a motion to dismiss an action for delay that has been brought after January 1, 2019.
Notice to Public Guardian and Trustee
A party who brings a motion to dismiss an action brought by, or on behalf of a person who is under disability for delay must serve the notice of motion and all supporting materials on the Public Guardian and Trustee.
[For additional historical information, see the note after this Rule.]
Procedural order if action not dismissed
If the court refuses to dismiss an action for delay under rule 24.01 or 24.02, it may still make any procedural order it considers appropriate in the circumstances.
[For additional historical information, see the note after this Rule.]
EFFECT OF DISMISSAL ON CROSSCLAIM OR THIRD PARTY CLAIM
Effect on crossclaim or third party claim
When an action against a defendant who has made a crossclaim or third party claim is dismissed for delay,
(a) the crossclaim or third party claim is deemed to be dismissed with costs; and
(b) the defendant may recover those costs and the defendant's costs of the crossclaim or third party claim from the plaintiff.
[For additional historical information, see the note after this Rule.]
EFFECT ON SUBSEQUENT ACTION
The dismissal of an action for delay is not a defence to a subsequent action unless the order dismissing the action provides otherwise.
[For additional historical information, see the note after this Rule.]
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
Rules 24.01 to 24.06 apply, with necessary changes, to counterclaims, crossclaims and third party claims.
Note: Rule 24 was reorganized when it was replaced by M.R. 130/2017.
PART VI
PLEADINGS
RULE 25
PLEADINGS IN AN ACTION
PLEADINGS REQUIRED OR PERMITTED
Action commenced by statement of claim
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.
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.
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.
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.
No pleading subsequent to a reply shall be filed without the consent in writing of the opposite party or leave of the court.
FORM OF PLEADINGS
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
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.
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
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
The time for serving a statement of claim is prescribed by rule 14.07.
The time for filing and serving a statement of defence is prescribed by rule 18.01.
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.
The time for filing and serving pleadings in a counterclaim is prescribed by Rule 27.
The time for filing and serving pleadings in a crossclaim is prescribed by Rule 28.
The time for filing and serving pleadings in a third party claim is prescribed by Rule 29.
CLOSE OF PLEADINGS
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
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.
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.
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.
Where a party's claim or defence is founded on an Act or Regulation, the specific sections relied on shall be pleaded.
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.
A party may make inconsistent allegations in a pleading where the pleading makes it clear that they are being pleaded in the alternative.
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.
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.
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.
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
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.
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.
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
A claim for general relief will be implied in any pleading where relief is claimed.
RULES OF PLEADING — APPLICABLE TO DEFENCES
In a defence, a party shall admit every allegation of fact in the opposite party's pleading that the party does not dispute.
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
Admissions and denials shall, where practicable, be by reference to the numbers in the pleading to which they relate.
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.
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.
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.
In an action for damages, the amount of damages shall be deemed to be in issue unless specifically admitted.
WHERE A REPLY IS NECESSARY
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.
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).
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
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
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.
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
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.
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
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
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
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
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
Particulars shall be provided in accordance with Form 25B.
STRIKING OUT OR EXPUNGING DOCUMENTS
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.
A motion to expunge all or part of an affidavit filed for an application or motion to be heard by a judge must be heard by the judge who hears the substantive application or motion, unless the judge directs that the motion for expungement is to be heard by a master.
A motion to expunge all or part of an affidavit filed for a motion to be heard by a master must be heard by the master who hears the substantive motion.
Time for hearing expungement motion
A motion to expunge must be heard at the same time as the substantive application or motion is heard, unless the judge or master determines that there are exceptional circumstances requiring the motion to expunge to be heard at an earlier date.
RULE 26
AMENDMENT OF PLEADINGS
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.
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
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
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
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".
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.
Where a pleading has been amended more than once each subsequent amendment shall be underlined with an additional line for each occasion.
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
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.
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
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
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.
AMENDMENT AT TRIAL
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.
RULE 27
COUNTERCLAIM
WHERE AVAILABLE
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
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
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
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
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.
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.
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
Subject to subrule 19.01.1(1) (filing of defence stayed if motion to strike filed), 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
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.
Subject to subrule 19.01.1(1) (filing of defence stayed if motion to strike filed), 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
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
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.
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
A counterclaim shall be tried at the trial of the main action, unless the court orders otherwise.
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
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
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
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.
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
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.
RULE 28
CROSSCLAIM
WHERE AVAILABLE
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
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.
AMENDING DEFENCE TO ADD CROSSCLAIM
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
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.
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
Subject to subrule (2) and subrule 19.01.1(1) (filing of defence stayed if motion to strike filed), 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
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
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
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
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.
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
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
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
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.
TRIAL OF CROSSCLAIM
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
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
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.
RULE 29
THIRD PARTY CLAIM
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
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.
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.
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.
THIRD PARTY DEFENCE
Subject to subrule 19.01.1(1) (filing of defence stayed if motion to strike filed), 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).
REPLY TO THIRD PARTY DEFENCE
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
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
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.
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.
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
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.
EFFECT OF THIRD PARTY DEFENCE
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
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.
TRIAL OF THIRD PARTY CLAIM
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
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.
THIRD PARTY DIRECTIONS
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
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.
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.
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
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
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
RULE 30
DISCOVERY OF DOCUMENTS
INTERPRETATION
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.
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
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.
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.
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
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
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.
The affidavit of documents shall be made by the party, or in the case of a corporation, by an officer, director or employee.
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.
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
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.
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.
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
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.
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
Where privilege is claimed for a document, the court may inspect the document to determine the validity of the claim.
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
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
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
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
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.
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
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
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
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
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.
A motion for an order under subrule (1) must be made on notice
(a) to every other party;
(b) to the person who has possession, control or power over the document in question; and
(c) to any other person whose interests the court considers might be affected by an order under subrule (1).
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.
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.
The moving party is responsible for the reasonable costs incurred or to be incurred by a person who is not a party to produce a document referred to in subrule (1), unless the court orders otherwise.
DOCUMENT DEPOSITED FOR SAFEKEEPING
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.
RULE 30.1
DEEMED UNDERTAKING
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).
This Rule does not apply to evidence or information obtained otherwise than under subrule (1).
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.
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
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
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.
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
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.
RULE 31
EXAMINATION FOR DISCOVERY
DEFINITION
In rules 31.02 to 31.12, "document" has the same meaning as in clause 30.01(1)(a).
FORM OF EXAMINATION
An examination for discovery may take the form of an oral examination or interrogatories or both.
WHO MAY EXAMINE AND BE EXAMINED
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
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.
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
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
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.
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.
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
Where an action is brought by or against an assignee, the assignor may be examined in addition to the assignee.
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.
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
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
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.
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.
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
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
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
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.
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.
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
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
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.
The sanction provided by subrule (1) is in addition to the sanctions provided by rule 34.14 (sanctions for default in examination).
EFFECT OF COUNSEL ANSWERING
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
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
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
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
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.
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.
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
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.
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.
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.
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 vidence.
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.
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.
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.
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.
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.
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
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.
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.
RULE 32
INSPECTION OF PROPERTY
ORDER FOR INSPECTION
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.
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.
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.
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.
Where the person in possession of the property is not a party no order for inspection shall be made without notice to the person.
RULE 33
PHYSICAL AND MENTAL EXAMINATION OF PARTIES
Motion for medical examination
A motion by an adverse party for an order under section 63 of The Court of King'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
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
The court may on motion determine any dispute relating to the conduct and scope of an examination.
PROVISION OF INFORMATION TO PARTY OBTAINING ORDER
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.
Subrule (1) does not compel the production of
(a) the report of a practitioner whose report was made in preparation for contemplated or pending litigation and for no other purpose, and whom the party to be examined undertakes not to call as a witness at the hearing; or
(b) any document made in preparation for contemplated or pending litigation and for no other purpose, and in respect of which the party to be examined undertakes not to call in evidence at the hearing.
WHO MAY ATTEND ON EXAMINATION
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
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.
The party who obtained the order shall forthwith serve the report on every other party.
PENALTY FOR FAILURE TO COMPLY
A party who fails to comply with section 63 of The Court of King'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.
EXAMINATIONS BY CONSENT
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.
COSTS
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
RULE 34
PROCEDURE ON ORAL EXAMINATIONS
APPLICATION OF THE RULE
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.
BEFORE WHOM TO BE HELD
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
PLACE OF EXAMINATION
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
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
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).
Where a person is to be cross-examined on an affidavit, a notice of examination (Form 34A) 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.
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.
Where a person is not a party and is being examined under rule 31.10, 36.01 or 39.03, the person must be served with a subpoena to witness (Form 34B) personally and not by an alternative to personal service.
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.
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
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.
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.
Rule 53.06 applies to the securing of the attendance for examination of a person in custody.
NOTICE OF TIME AND PLACE
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.
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.
EXAMINATIONS ON CONSENT
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
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
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.
The commission and letter of request shall be issued by a registrar.
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.
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.
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
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
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.
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.
[Repealed]
M.R. 14/94
INTERPRETER
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.
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
Subrule 30.01(1) (meaning of "document", "power") applies to subrules (2) to (4).
Person to be examined must bring required documents and things
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
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.
Early production of documents on cross-examination
A person being cross-examined on an affidavit must provide the examining party with copies of all documents in the person's possession, power and control that are not privileged and that are specified in the notice of cross-examination
(a) at least 10 days before the date of the cross-examination; or
(b) as soon as reasonably possible before the date of the cross-examination, if the cross-examination is scheduled less than 10 days before it is to take place.
The examining party is responsible for the reasonable costs incurred or to be incurred by a person who is not a party to produce copies of the documents referred to in subrule (3.1), unless the court orders otherwise.
Duty to produce other documents
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
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
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
A person being cross-examined on an affidavit or examined in aid of execution may be re-examined by the person's own lawyer.
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
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).
Re-examination of a witness examined before trial under Rule 36 is governed by subrule 36.02(2).
OBJECTIONS AND RULINGS
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.
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.
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.
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
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.
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.
EXAMINATION TO BE RECORDED
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
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.
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
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
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.
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
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.
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
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.
Rule 34.17 applies, with necessary modifications, to a tape or other recording made under subrule (1).
TELEPHONE CONFERENCE
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
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
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.
RULE 35
PROCEDURE ON INTERROGATORIES
QUESTIONS
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
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.
The examining party shall serve the answers on every other party forthwith.
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
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
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.
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.
FILING INTERROGATORIES
Rules 34.17 and 34.20 apply, with necessary modifications, to the filing of interrogatories and answers for the use of the court.
MINORS
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.
RULE 36
TAKING EVIDENCE BEFORE TRIAL
WHERE AVAILABLE
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.
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.
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
Subject to subrule (2), Rule 34 applies to the examination of a witness under rule 36.01, unless the court orders otherwise.
A witness examined under rule 36.01 may be examined, cross-examined and re-examined in the same manner as a witness at trial.
EXAMINATIONS OUTSIDE MANITOBA
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.
BEFORE A JUDGE
An examination under this rule may be held before a judge.
USE AT TRIAL
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.
Use of evidence taken under rule 36.01 or 36.03 is subject to any ruling by the trial judge respecting admissibility.
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
RULE 37
MOTIONS — JURISDICTION AND PROCEDURE
A motion shall be made by notice of motion (Form 37A), unless the court orders otherwise.
JURISDICTION TO HEAR A MOTION
A judge has jurisdiction to hear any motion in a proceeding.
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
Subject to subrule 25.11(2) and subrule (2) of this rule, a motion within the jurisdiction of a master shall be made to a master.
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
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.
PLACE OF FILING
A motion shall be filed in the administrative centre in which the court file is located.
PLACE AND DATE OF HEARING
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.
The moving party must name in the notice of motion as the hearing date
(a) where the motion is to a master or other officer, any date on which a master or other officer sits to hear motions; and
(b) where the motion is to a judge, any date on which a judge sits to hear motions.
SERVICE OF NOTICE
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.
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
The court may make an order on consent without a notice of motion being filed.
Where the delay necessary to effect service might entail serious consequences, the court may make an interim order without notice.
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
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.
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.
[Repealed]
M.R. 150/89; 130/2017
SCHEDULING OF CONTESTED MOTIONS
To be adjourned for a hearing date
Subject to subrule (2), where a notice of motion to a judge or master has been served and it transpires that the motion is to be contested, the judge or master shall adjourn the motion and the moving party may obtain a hearing date.
Immediate hearing where urgent, etc.
In a case of urgency or where otherwise appropriate, the judge or master may proceed to hear the motion.
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
A responding party who has been served with a brief under subrule (3) must 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; 130/2017
Bilingual statutory provisions in brief
If a party relies on a statutory provision that is required by law to be printed and published in English and French, their brief must contain a bilingual version of that provision.
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.
[Repealed]
M.R. 186/96
Within seven days after service of the moving party's brief, the parties may file a written agreement that establishes timelines for completion of the following preliminary steps in the motion:
(a) filing and service of affidavits by the parties, including any additional affidavits in response to affidavits filed by the responding party;
(b) scheduling and completion of all cross-examinations on affidavits;
(c) filing and service of an additional brief by the moving party;
(d) filing and service of the responding party's brief.
No agreement may permit the filing of materials less than seven days before the hearing of the motion.
Motion to establish schedule if no agreement
If the parties are unable to reach an agreement under subrule (1), the moving party must bring a motion to establish a schedule for completion of the preliminary steps in the motion.
A motion under subrule (3) must be heard
(a) by a master, if the original motion is to be heard by a master; or
(b) by a judge, if the original motion is to be heard by a judge.
Amending schedule by agreement
The parties may amend a schedule established under subrule (1) or (3) by filing a written agreement that sets out new time lines for completing preliminary steps in the motion.
Sanctions for failure to comply with schedule
If a party has failed to comply with a schedule established under this rule, a judge or master may do one or more of the following:
(a) strike out the motion, if the offending party is the moving party;
(b) adjourn the hearing of the motion;
(c) order costs against the offending party;
(d) direct the hearing to proceed on the scheduled date without allowing the offending party to
(i) file or rely on any affidavit, transcript or brief that was not filed or served in accordance with the schedule, or
(ii) conduct a cross-examination on an affidavit after the expiry of the scheduled deadline for cross-examinations to occur;
(e) make any other order or give any other direction that he or she considers appropriate in the circumstances.
The sanctions set out in subrule (6) may be imposed
(a) on motion to a master, if the original motion is to be heard by a master;
(b) on motion to a judge, if the original motion is to be heard by a judge; or
(c) by the judge or master presiding at the hearing of the original motion.
This rule does not apply to an urgent motion, a motion under subrule (3) or (7) or a motion under subrule 38.07.1(3) or (7).
HEARING BY TELEPHONE, VIDEO CONFERENCE OR OTHER MEANS OF COMMUNICATION
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.
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.
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.
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.
DISPOSITION OF MOTION
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
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.
Where practicable, a motion under subrule (1) shall be made to the judge or officer who made the order.
ABANDONMENT OF MOTIONS
Abandonment of motions, where not served
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
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
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
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
RULE 38
APPLICATIONS — JURISDICTION AND PROCEDURE
APPLICATION OF RULE
This Rule applies to all proceedings under rule 14.05 which are commenced by a notice of application.
ISSUING OF NOTICE OF APPLICATION
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
All applications shall be made to a judge.
PLACE AND DATE OF HEARING
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.
The notice of application must name as the hearing date any date on which a judge sits to hear applications.
[Repealed]
SERVICE OF NOTICE
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
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.
Unless the court abridges the time for service, where an application is made on notice, the notice of application must be served at least 14 days before the date on which the application is to be heard.
[Repealed]
AMENDMENTS
The applicant may amend a notice of application
(a) on filing the written consent of all parties and, if a person is to be added as a party, with the written consent of that person;
(b) at any time on requisition to correct clerical errors; or
(c) with leave of the court.
The court may grant leave on motion at any stage of an application to amend a notice of application on such terms as are just, unless prejudice would result that could not be compensated by costs or an adjournment.
Rules 26.04 and 26.05 apply, with necessary changes, to amendments to a notice of application.
TRANSFER OF APPLICATION
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
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
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.
Immediate hearing where urgent, etc.
In case of urgency or where otherwise appropriate, the judge may proceed to hear the application.
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.
A respondent party who has been served with a brief under subrule (3) shall 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.
Bilingual statutory provisions in brief
If a party relies on a statutory provision that is required by law to be printed and published in English and French, their brief must contain a bilingual version of that provision.
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.
SCHEDULING OF CONTESTED APPLICATIONS
Subject to subrules (2) to (4), preliminary steps in an application must be completed in accordance with the following schedule:
(a) the applicant must file and serve all supporting affidavits within 30 days after the notice of application was filed;
(b) the respondent must file and serve all supporting affidavits within 30 days after service of the applicant's affidavits or the expiry of the deadline for doing so, whichever is earlier;
(c) the applicant must file and serve any affidavits in response to affidavits filed by the respondent within 20 days after service of the respondent's affidavits;
(d) cross-examination on affidavits must be completed by all parties within 20 days after the service of all affidavits or the expiry of the deadline for doing so, whichever is earlier;
(e) the applicant may file and serve any additional brief within ten days after cross-examinations on affidavits have been completed or the expiry of the deadline for doing so, whichever is earlier;
(f) the respondent must file and serve a brief within 20 days after the applicant serves an additional brief or the expiry of the deadline for doing so, whichever is earlier.
The parties may establish their own schedule by filing a written agreement that sets out specific deadlines for completing preliminary steps in the application.
If a party objects to the schedule under subrule (1) but is unable to reach a scheduling agreement with the other party, the party may bring a motion to a judge to establish a schedule for completion of the preliminary steps in the application.
Amending schedule by agreement
The parties may amend a schedule established under subrule (1), (2) or (3) by filing a written agreement that sets out new deadlines for completing preliminary steps in the application.
No agreement may permit the filing of materials less than seven days before the hearing of the application.
Sanctions for failure to comply with schedule
If a party has failed to comply with a schedule established under this rule, a judge may do one or more of the following:
(a) strike out the application, if the offending party is the applicant;
(b) adjourn the hearing of the application;
(c) order costs against the offending party;
(d) direct the hearing to proceed on the scheduled date without allowing the offending party to
(i) file or rely on any affidavit, transcript or brief that was not filed or served in accordance with the schedule, or
(ii) conduct a cross-examination on an affidavit after the expiry of the scheduled deadline for cross-examinations to occur;
(e) make any other order or give any other direction that he or she considers appropriate in the circumstances.
The sanctions set out in subrule (6) may be imposed
(a) on motion to a judge; or
(b) by the judge presiding at the hearing of the application.
This rule does not apply to urgent applications.
HEARING BY TELEPHONE, VIDEO CONFERENCE OR OTHER MEANS OF COMMUNICATION
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.
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.
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.
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.
DISPOSITION OF APPLICATION
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
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.
Where practicable, a motion under subrule (1) shall be made to the judge who made the order.
ABANDONMENT OF APPLICATIONS
Abandonment of applications, where not served
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
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
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
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
The court may on motion dismiss an application for delay.
M.R. 26/97
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
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
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
RULE 39
EVIDENCE ON MOTIONS AND APPLICATIONS
EVIDENCE BY AFFIDAVIT
Evidence on a motion or application may be given by affidavit unless a statute or these rules provide otherwise.
Except when a motion or application is to be contested, if 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.
[Repealed]
An affidavit for use on a motion, including a motion for summary judgment, 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.
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
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
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
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.
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
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.
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
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.
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
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.
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.
[Repealed]
UNDERTAKINGS
If a person being cross-examined on an affidavit or examined as a non-party refuses to give an undertaking or fails to provide the information or documents requested after giving an undertaking to do so, the court may order the person to provide the information or documents in question if
(a) the undertaking relates to an important issue in the application or motion;
(b) it would not be overly onerous or expensive to obtain the information or documents; and
(c) the provision of the information or documents would significantly assist the court in determining the application or motion.
EVIDENCE BY EXAMINATION FOR DISCOVERY
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
RULE 40
INTERLOCUTORY INJUNCTION
HOW OBTAINED
An interlocutory injunction under section 55 of The Court of King'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
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
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.
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
UNDERTAKING FOR DAMAGES
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.
RULE 41
APPOINTMENT OF RECEIVER
DEFINITION
In rules 41.02 to 41.06, "receiver" means a receiver or receiver and manager.
HOW OBTAINED
The appointment of a receiver under section 55 of The Court of King'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.
FORM OF ORDER
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
An order appointing a receiver may refer the conduct of all or part of the receivership in accordance with Rule 54.
DIRECTIONS
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.
DISCHARGE
A receiver may be discharged only by the order of a judge.
RULE 42
PENDING LITIGATION ORDERS
HOW OBTAINED
A pending litigation order (Form 42A) under section 58 of The Court of King'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
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.
A motion under subrule (1) may be made without notice.
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
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.
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.
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.
RULE 43
INTERPLEADER
DEFINITIONS
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 »)
WHERE AVAILABLE
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
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
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.
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
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.
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
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.
The sheriff shall make only one motion in respect of the property.
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
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.
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).
Where a sheriff has an execution issued by any court other than the Court of King's Bench and has no execution issued by the Court of King'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.
Rules 43.02 to 43.04 apply with necessary modification to a sheriff's interpleader.
RULE 44
INTERIM RECOVERY OF PERSONAL PROPERTY
MOTION FOR INTERIM ORDER
An interim order under section 59 of The Court of King'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.
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
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
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.
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
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.
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.
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.
SETTING ASIDE ORDER
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.
RELEASE OF SECURITY
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
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.
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.
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.
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
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.
RULE 45
INTERIM PRESERVATION OF PROPERTY
INTERIM ORDER FOR PRESERVATION OR SALE
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.
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.
SPECIFIC FUND
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
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.
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.
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.
RULE 46
ATTACHMENT AND GARNISHMENT BEFORE JUDGMENT
MOTION FOR ATTACHING ORDER
Motion with affidavit in support
An attaching order under section 60 of The Court of King'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 King'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.
A motion under subrule (1) may be made without notice.
DISPOSITION OF MOTION
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.
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
Before proceeding to enforce an order attaching personal property, the sheriff shall ascertain that any security required by the order has been given.
The sheriff shall serve the order on the defendant when personal property is attached, or as soon thereafter as is possible.
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.
MOTION ON FAILURE TO ENFORCE
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.
SHERIFF'S COSTS
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
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
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
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.
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
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.
SHERIFF TO HOLD PROPERTY
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
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.
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.
ATTACHMENT OF LAND
A certified copy of an order under clause 46.02(1)(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
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.
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
An order (Form 46D) under section 61 of The Court of King'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.
A motion under subrule (1) may be made without notice.
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
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.
Rule 60.08 applies, with necessary modification, to a notice of garnishment issued under subrule (4).
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
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.
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.
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.
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
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
RULE 47
PLACE OF TRIAL
WHERE TRIAL TO BE HELD
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.
ORDER CHANGING PLACE OF TRIAL
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.
RULE 48
[Repealed]
M.R. 150/89; 93/2005; 130/2017
RULE 49
OFFER TO SETTLE
DEFINITIONS
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
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
Subrule (1) and rules 49.03 to 49.14 apply to a motion with such modifications as the circumstances require.
M.R. 98/95
TIME FOR MAKING OFFER
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
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.
The notice of withdrawal of the offer may be in Form 49B.
Offer expiring after limited time
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.
EFFECT OF OFFER
An offer to settle shall be deemed to be an offer made without admission of liability and without prejudice.
DISCLOSURE OF OFFER TO COURT
No statement of the fact that an offer to settle has been made shall be contained in any pleading.
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
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
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.
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
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
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.
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
Where an offer is accepted, the court may incorporate any of its terms into a judgment or order.
M.R. 98/95
Where money is paid into court under subrule (3) or (4), it may be paid out on consent or by order.
PARTIES UNDER DISABILITY
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
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
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
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, excluding interest and costs subsequent to the date the plaintiff was served with the offer, 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; 130/2017
The burden of proving that a judgment or order is as favourable as the terms of the offer to settle, or more or less favourable, as the case may be, is on the party who claims the benefit of subrule (1) or (2).
MULTIPLE DEFENDANTS
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
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.
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).
Rules 49.04, 49.05, 49.06 and 49.13 apply to an offer to contribute as if it were an offer to settle.
DISCRETION OF COURT
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
Rules 49.01 to 49.13 apply, with necessary modifications, to counterclaims, crossclaims and third party claims.
RULE 50
PRE-TRIAL MANAGEMENT
INTRODUCTORY PROVISIONS
The following definitions apply in this Rule.
"pre-trial co-ordinator" means the person assigned by the court to be the pre-trial co-ordinator for the purpose of this Rule. (« coordonnateur des étapes préparatoires »)
"pre-trial judge" means the judge who is assigned to manage the pre-trial conduct of an action under this Rule. (« juge des étapes préparatoires »)
[For additional historical information, see the note after this Rule.]
This Rule is intended to facilitate the just, most expeditious and least expensive determination or disposition of an action by having a judge manage the pre-trial conduct of an action by
(a) setting early trial dates and establishing timelines for the completion of steps in the litigation process;
(b) identifying and simplifying the issues to be tried in the action;
(c) avoiding wasteful or unnecessary pretrial activities;
(d) facilitating settlement of the action; and
(e) ensuring that the action is ready for trial by making orders and giving directions respecting substantive and procedural issues in the action.
SCHEDULING PRE-TRIAL CONFERENCES
A pre-trial conference may be scheduled at any time after the pleadings in an action are closed.
[For additional historical information, see the note after this Rule.]
[Repealed]
A party seeking a pre-trial conference must first file a pre-trial brief with the court that includes
(a) a copy of all pleadings in the action;
(b) a concise statement of the factual and legal issues in the action;
(b.1) an indication of whether a motion for summary judgment or any other dispositive motion is being sought; and
(c) the estimated duration of the trial.
Scheduling with consent of parties
After serving the pre-trial brief on all parties, the party seeking a pre-trial conference may obtain a date for the conference from the pre-trial co-ordinator if all parties have consented to the date.
Motion to set date if no consent
If all parties to an action are unable to reach agreement on a date for a pre-trial conference, a party may bring a motion to a judge to schedule a date for the pre-trial conference.
Every other party to the action must file and serve a responding pre-trial brief on all other parties at least seven days before the pre-trial conference. The responding brief must include the party's position respecting any summary judgment motion or other dispositive motion sought.
Scheduling subsequent pre-trial conferences
Additional pre-trial conferences may be scheduled by the pre-trial judge or by any party to the action on request to the pre-trial co-ordinator.
Limit on pre-trial conferences for expedited actions
Unless the pre-trial conference judge directs otherwise, no more than three pre-trial conferences may be held for an expedited action under Rule 20A.
ATTENDANCE AT PRE-TRIAL CONFERENCES
Attendance at pre-trial conferences
Each lawyer representing a party to the action and each party not represented by a lawyer must attend a pre-trial conference, either in person or, if authorized by a judge, by a conference telephone call or by electronic means.
[For additional historical information, see the note after this Rule.]
Unless authorized by the pre-trial judge, the lawyer attending a pre-trial conference must be the lawyer principally responsible for the conduct of the action. This lawyer must have the authority to set dates respecting the conduct of the litigation and engage in settlement discussions.
The parties to the action must attend a pre-trial conference if requested by the pre-trial judge.
SCREENING FUNCTION
Status review 50.04(1) Before proceeding with the first pre-trial conference, the presiding judge must review the nature of the action, the issues in dispute and the status of the litigation with the parties.[For additional historical information, see the note after this Rule.]
Direction that pre-trial conference not proceed
Following this review, the judge may make a direction that the pre-trial conference not proceed if he or she determines that it is not appropriate to hold a pre-trial conference at this time given the nature of the action, the issues in dispute and the status of the litigation.
Direction re future pre-trial conferences
In a direction under subrule (2), the judge may direct that the parties not schedule a pre-trial conference until after a specified date or a specified step in the litigation has been completed.
Scheduling future pre-trial conference
If a direction is made under subrule (3), a party must not schedule a pre-trial conference until after the date specified in the direction or the specified step in the litigation has been completed, unless a judge orders otherwise.
The judge may make an order for costs against a party if he or she makes a direction under subrule (2).
SUMMARY JUDGMENT MOTIONS
Inquiry re dispositive motions
At the first pre-trial conference, the pre-trial judge must determine whether any party intends to bring a summary judgment motion or another dispositive motion.
When summary judgment motion may proceed
The pre-trial judge must allow a proposed motion for summary judgment to proceed if he or she is satisfied that the summary judgment motion can achieve a fair and just adjudication of the issues in the action by providing a process that
(a) allows the judge to make the necessary findings of fact;
(b) allows the judge to apply the law to the facts; and
(c) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.
If the pre-trial judge determines that a motion for summary judgment may proceed, he or she may make any order or give any direction that he or she considers necessary or appropriate respecting the conduct of the motion, including an order or direction respecting the evidence in the motion and timelines for the completion of any step relating to the motion.
Without limiting the generality of subrule (5.3), the pre-trial judge may order that oral evidence be presented by one or more parties, with or without time limits on its presentation, if the judge considers it necessary to make a determination on a motion for summary judgment.
ROLE OF PRE-TRIAL JUDGE
The pre-trial judge is responsible for managing the pre-trial conduct of an action in a manner that will achieve the objectives set out in subrule 50.01(2).
[For additional historical information, see the note after this Rule.]
Unless otherwise directed by the Chief Justice or his or her designate on the request of the pre-trial judge or a party to the action, the pre-trial judge must
(a) preside at all subsequent pre-trial conferences; and
(b) hear all motions arising in the action.
If an appeal from an order of a master has not been heard before the first pre-trial conference, that appeal must be heard by the pre-trial judge.
At a pre-trial conference, the pre-trial judge may, on motion by any party or on his or her own motion, without materials being filed, make any order or give any direction that he or she considers necessary or advisable to facilitate the just, most expeditious and least expensive determination or disposition of an action.
Examples of pre-trial orders and directions
Without restricting the generality of subrule (3), the pre-trial judge may make an order or give a direction that
(a) pleadings be amended or closed by a specified date;
(b) motions be brought by a specified date;
(c) any or all motions not proceed;
(d) examinations for discovery and cross-examinations on affidavits be dispensed with or be limited in scope;
(e) examinations for discovery and cross-examinations on affidavits be completed by a specified date;
(f) establishes timelines for the completion of any step in the litigation process;
(g) the parties exchange reports and resumes of any experts to be called at trial by a specified date;
(h) limits the number of experts to be called at trial or the matters to be addressed at trial by experts;
(i) simplifies the issues and eliminates frivolous claims or defences;
(j) the parties make admissions respecting facts or documents;
(k) directs a reference to be conducted on a specific issue;
(l) the parties file an agreed statement of facts or an agreed book of documents;
(m) makes provisional advance rulings on the admissibility of evidence;
(n) evidence at trial, in whole or in part, be adduced by affidavit;
(o) establishes reasonable limits on the time allowed to present evidence at trial;
(p) requires a separate trial of a claim, counterclaim, crossclaim or particular issues;
(q) establishes special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions or unusual proof problems; or
(r) the parties prepare a trial brief and trial record, including specifying the contents of a trial brief or trial record and the timelines for filing these documents.
Pre-trial judge powers respecting motions
The pre-trial judge may do one or more of the following with respect to any motion that he or she hears in an action that is subject to pre-trial management:
(a) make an order on the basis of oral submissions only;
(b) order that oral submissions be recorded;
(c) order that written materials be filed and served;
(d) give directions respecting the preparation and filing of an order.
Modification of scheduling order or direction
An order or direction that established timelines respecting any step in the litigation process may be modified only if the pre-trial judge determines that it is appropriate to do so.
SETTLEMENT
The pre-trial judge must explore the possibility of settlement with the parties at a pre-trial conference.
[For additional historical information, see the note after this Rule.]
[Repealed]
Settlement discussions without prejudice
Settlement discussions at a pre-trial conference are without prejudice and must not be referred to in a motion or at the trial of the action, except as disclosed in the pre-trial conference memorandum.
SETTING TRIAL DATES
Pre-trial judge to set trial dates
Trial dates for an action may be set only by the pre-trial judge for that action.
[For additional historical information, see the note after this Rule.]
Setting trial and motion dates at first conference
At the first pre-trial conference, the pre-trial judge must do one or both of the following:
(a) set a hearing date for a summary judgment motion or any other dispositive motion, if such a motion is sought;
(b) set trial dates for the action.
Setting trial dates after first pre-trial conference
If trial dates are not set at the first pre-trial conference, the pre-trial judge must set trial dates at
(a) the conclusion of the hearing of a motion for summary judgment or other dispositive motion, if such hearing does not end the action; or
(b) the next pre-trial conference.
The pre-trial judge may change the scheduled length of a trial if he or she considers it appropriate.
Adjourning scheduled trial dates
A scheduled trial date may only be adjourned by the Chief Justice or his or her designate on the request of a party or the pre-trial judge.
PRE-TRIAL MEMORANDUM
After a pre-trial conference, the pre-trial judge must issue a memorandum that sets out the results of the conference, including
(a) any orders made or directions given;
(b) the issues that have been resolved and the matters that have been agreed to by the parties;
(c) the issues requiring a trial or a hearing; and
(d) the date of the next pre-trial conference, if a decision was made to schedule a further pre-trial conference.
[For additional historical information, see the note after this Rule.]
If the pre-trial judge makes an order, the judge must set out the reasons for the order in the pre-trial conference memorandum, unless those reasons are provided elsewhere.
Memorandum to be filed and sent out
A pre-trial conference memorandum must be filed and sent to the parties or their lawyers.
Subject to subrule (5), a pre-trial conference memorandum is binding on the parties to an action.
A party who disputes the accuracy of a pre-trial memorandum must, within 14 days after receiving the memorandum, notify the pre-trial judge of the objection. If necessary, the pre-trial judge may re-open the pre-trial conference to address the objection. The pre-trial judge may issue a revised memorandum if he or she determines that the original memorandum was incorrect in any way.
Any facts identified by the pre-trial judge in the pre-trial memorandum as not being in dispute or evidence ordered to be adduced by affidavit are admissible for the purpose of the trial, unless the trial judge orders otherwise.
If an order is made at a pre-trial conference, a separate form of order is not required and the order is deemed to be pronounced on the date of the pre-trial memorandum, or if a corrected memorandum is issued, on the date the corrected memorandum is issued.
SANCTIONS
If a party, without reasonable excuse,
(a) fails to comply with a provision of this Rule;
(b) fails to comply with an order or direction given by the pre-trial judge; or
(c) is substantially unprepared to participate at a pre-trial conference or does not participate in good faith at a pre-trial conference;
the pre-trial judge must make one or more of the following orders:
(d) an order for costs against the party;
(e) an order staying an action;
(f) an order striking out all or part of a pleading or other document;
(g) an order compelling the attendance of a party at the pre-trial conference;
(h) any other order that the pre-trial judge considers appropriate.
Costs under subrule (1) are to be fixed by the pre-trial judge and are payable immediately unless otherwise ordered.
If the pre-trial judge makes an order under subrule (1), the judge must provide reasons for the order in the pre-trial conference memorandum or on the record at the pre-trial conference.
If an order is made under clause (1)(d), (e) or (f), the party against whom the order is made may bring a motion before the pre-trial judge to set aside the order.
GENERAL MATTERS
The pre-trial judge may require the parties to an action to provide written material or documents on any matter that may assist in the conduct of the pre-trial conference.
[For additional historical information, see the note after this Rule.]
Pre-trial judge to preside at trial
Unless otherwise directed by the Chief Justice or his or her designate on the request of the pre-trial judge or a party to the action, the pre-trial judge must preside at the trial of the action.
[For additional historical information, see the note after this Rule.]
In the case of a conflict between this Rule and any other rule, this Rule applies. For greater certainty, the pre-trial judge may establish deadlines for the completion of any step in the litigation process despite any time periods provided in another rule.
[For additional historical information, see the note after this Rule.]
Unless the pre-trial judge orders otherwise, the costs of a pre-trial conference are costs in the cause.
Note: Rule 50 was reorganized when it was replaced by M.R. 130/2017. Before that, it had been amended by the following regulations: 150/89; 69/99; 93/2005.
RULE 50.1
CASE MANAGEMENT
The Chief Justice or his or her designate may, on his or her own or on the request of a judge or a party to a proceeding, order the parties to a proceeding to attend one or more case management conferences.
An order may be made under subrule (1) if the judge determines that the active management of a judge is required to ensure that the proceeding moves forward in an expeditious manner. The judge may consider any factors he or she considers relevant, including whether the proceeding
(a) involves a number of complex factual, legal or procedural issues;
(b) has multiple parties;
(c) has one or more self-represented parties;
(d) will likely involve a number of interim motions or other proceedings; or
(e) will likely require a number of pre-trial evidentiary rulings.
The judge presiding at a case management conference may, on motion by any party or on his or her own motion, without materials being filed, make any order or give any direction that he or she considers necessary or advisable to facilitate the just, most expeditious and least expensive determination or disposition of the proceeding.
Without restricting the generality of subrule (3), the judge presiding at a case management conference may exercise all of the powers of a pre-trial judge under Rule 50.
With the exception of subrule 50.07(2) (setting trial and motion dates at first conference), the provisions of Rule 50 apply, with necessary changes, to a proceeding that is the subject of a case management conference.
RULE 51
ADMISSIONS
DEFINITION
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
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.
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
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
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
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.
COSTS ON REFUSAL TO ADMIT
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.
WITHDRAWAL OF ADMISSION
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
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
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
If Rule 30.1 (deemed undertaking) applies to the admission, its use in another proceeding is subject to Rule 30.1.
PART XII
TRIALS
RULE 52
TRIAL PROCEDURE
FAILURE TO ATTEND AT TRIAL
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.
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.
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.
ADJOURNMENT OF TRIAL
A judge may postpone or adjourn a trial to such time and place, and on such terms as are just.
COURT APPOINTED EXPERTS
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
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
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 King's Bench Act.
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.
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.
The report shall be filed as evidence at the trial of the action unless the trial judge orders otherwise.
The judge may direct the expert to make a further or supplementary report, and subrules (5) and (6) apply to that report.
Any party may cross-examine the expert at the trial.
Liability of parties for remuneration of expert
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
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.
Exhibits shall be marked thus:
The King's Bench
Smith v. Roe
This exhibit (the property of) is produced by the , the ____ day of , 19 .
Deputy Registrar
(or Clerk)
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.
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.
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.
VIEW BY JUDGE OR JURY
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
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
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
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
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.
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.
Where there are two or more defendants separately represented, the order of presentations shall be directed by the trial judge.
Where a party is represented by counsel, the right to address the court shall be exercised by counsel.
DISAGREEMENT OF THE JURY
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
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.
RECORDING JURY VERDICT
The verdict of a jury shall be endorsed on the court file.
FAILURE TO PROVE A FACT OR DOCUMENT
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.
Damages in respect of any continuing cause of action shall be assessed down to the time of assessment.
RULE 53
EVIDENCE AT TRIAL
EVIDENCE BY WITNESSES
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
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.
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.
Where an interpreter is required under subrule (3), the party calling the witness shall provide the interpreter.
EVIDENCE OTHER THAN BY PERSONAL ATTENDANCE
On motion, before or at the trial of an action, a 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 judge.
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
A party who intends to call an expert witness at trial must file with the pre-trial judge 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; 130/2017
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 30 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.
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
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
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
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
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.
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
A subpoena continues to have effect until the attendance of the witness is no longer required.
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.
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.
INTERPROVINCIAL SUBPOENA
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
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
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.
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
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
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
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.
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.
LIBEL OR SLANDER
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
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
RULE 54
DIRECTING A REFERENCE
APPLICATION OF RULES 54 AND 55
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
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.
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.
REFERENCE DIRECTED TO MASTER
A reference shall be directed to a master.
ORDER DIRECTING A REFERENCE
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.
The master has, subject to the order directing the reference, all the powers conferred by Rule 55.
MOTIONS ON A REFERENCE
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.
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.
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
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).
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
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
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
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
Immediately after the report referred to in rule 54.06 is signed by the master it shall be entered on the court file.
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.
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
The deemed confirmation date shall be a date that is 35 days after the date the report is signed by the master.
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
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
A motion to oppose confirmation of a report shall be made to a judge.
Notice of motion to oppose confirmation
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
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
A party who seeks confirmation before the deemed confirmation date may make a motion to a judge for confirmation.
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
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.
RULE 55
PROCEDURE ON REFERENCE
GENERAL PROVISIONS FOR CONDUCT OF REFERENCE
Simple procedure to be adopted
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
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.
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.
PROCEDURE ON A REFERENCE GENERALLY
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.
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.
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.
The directions may be varied or supplemented during the course of the reference.
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.
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
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
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.
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.
The master may grant leave to make any necessary amendments to the pleadings that are not inconsistent with the order of reference.
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
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.
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
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.
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
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.
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.
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).
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
The master may direct the publication of advertisments for creditors or beneficiaries of an estate or trust, other unascertained persons, or their successors.
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.
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
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
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.
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.
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.
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.
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.
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
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.
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.
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.
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
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.
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.
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
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
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.
All parties to the reference may bid for the property except if the court orders otherwise.
[Repealed]
Where no auctioneer is employed, the master or a person designated by the master shall conduct the sale.
The purchaser shall enter into an agreement of purchase and sale at the time of sale.
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.
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).
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.
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).
Where possession is wrongfully withheld from the purchaser, either the purchaser or any party may move for a writ of possession.
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).
[Repealed]
PART XIV
COSTS
RULE 56
SECURITY FOR COSTS
WHERE AVAILABLE
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
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.
MOTION FOR SECURITY
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
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.
FORM AND EFFECT OF ORDER
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.
DEFAULT OF PARTY
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.
AMOUNT MAY BE VARIED
The amount of security required by an order for security for costs may be increased or decreased at any time.
NOTICE OF COMPLIANCE
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
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.
RULE 57
AWARD AND FIXING OF COSTS BY COURT
GENERAL PRINCIPLES
In exercising its discretion under section 96 of The Court of King'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;
(d.1) the conduct of any party which unnecessarily complicated the proceeding;
(d.2) the failure of a party to meet a filing deadline;
(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;
(f.1) the relative success of a party on one or more issues in a proceeding in relation to all matters put in issue by that party;
(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
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.
In awarding costs, the court may fix all or part of the costs, with or without reference to Tariff 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.
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.
Where the costs are not fixed, they may be assessed under Rule 58.
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
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.
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
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.
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.
On a motion made without notice, there shall be no costs to any party, unless the court orders otherwise.
COSTS ON SETTLEMENT
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
Where a proceeding is dismissed for want of jurisdiction, the court may make an order for costs of the proceeding.
COSTS OF LITIGATION GUARDIAN
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.
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
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.
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.
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.
RULE 58
ASSESSMENT OF COSTS
GENERAL
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
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.
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
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
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
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.
The notice shall be served on every party interested in the assessment at least 21 days before the date fixed for the assessment.
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
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
Where costs are to be assessed, the assessment officer shall assess and allow,
(a) lawyers' fees and disbursements in accordance with Tariff A or B; and
(b) disbursements for fees paid to the court, a court reporter, an official examiner or a sheriff under the regulations under The Court Services Fees Act;
and no other fees, disbursements or charges shall be assessed or allowed unless the court orders otherwise.
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.
An assessment officer may require production of books and documents and give directions for the conduct of an assessment.
Where parties are liable to pay costs to each other, the assessment officer may adjust the costs by way of set off.
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
In assessing costs the assessment officer may consider the factors referred to in subrule 57.01(1).
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
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 King's Bench Surrogate Practice Act, subject to increase where the tariff appears to be inadequate.
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
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.
The assessment officer may, and if requested shall, provide written reasons for the decision.
APPEAL FROM ASSESSMENT
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
A sheriff claiming fees or expenses that are not prescribed by regulation under The Court Services 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
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
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
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.
Nothing in subrule (4) authorizes the court to reduce or order a refund of a fee that is prescribed by regulations under The Court Services Fees Act.
PART XV
ORDERS
RULE 59
ORDERS
EFFECTIVE DATE
An order is effective from the date on which it is made, unless it provides otherwise.
ENDORSEMENT BY JUDGE OR OFFICER
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.
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 orderAny 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.
Approval of the form of an order that merely dismisses a motion, proceeding or appeal, with or without costs, is not required.
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.
The operative parts of an order shall be divided into paragraphs, numbered consecutively.
Order directing payment for minor
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
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
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
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
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.
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.
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
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.
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
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.
FILING OF ORDER
The original copy of every order shall be filed immediately after it has been signed.
AMENDING, SETTING ASIDE OR VARYING ORDER
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.
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
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.
Upon filing of a notice of satisfaction under subrule (1), the registrar shall note on the order that notice of satisfaction has been filed.
Order declaring earlier order satisfied
If a notice of satisfaction with respect to an order ("earlier order") has not been filed, a judge may, on motion, grant an order declaring that the earlier order has been satisfied where the party against whom the earlier order was made establishes that
(a) the earlier order has been satisfied; and
(b) the party in whose favour the earlier order was granted
(i) cannot be located, or
(ii) is unwilling to sign a notice of satisfaction.
When the order granted under subrule (3) is filed in the court, the registrar shall note on the earlier order that it has been satisfied.
RULE 60
ENFORCEMENT OF ORDERS
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
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
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
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
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.
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
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
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.
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
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.
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
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
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
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.
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.
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.
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
Every writ of seizure and sale shall bear the name and address of the debtor, the creditor and the creditor's lawyer, if any.
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.
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.
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
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
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
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
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
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.
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.
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
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
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
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
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
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.
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.
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.
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
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
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.
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 or 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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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. When a party seeks a writ of possession in relation to an order of possession made under The Residential Tenancies Act, the making of that order is proof that the tenant received notice of the hearing that led to that order being made.
CONTEMPT ORDER
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.
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.
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.
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.
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
Where a corporation is in contempt, the judge may also make an order under subrule (5) against any officer or director of the corporation.
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
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
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.
The party enforcing the order and any person 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
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
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
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.
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.
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
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).
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
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.
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.
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
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.
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.
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.
MOTION FOR DIRECTIONS
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
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 »)
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.
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).
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.
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
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.
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.
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
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
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 Court Services 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 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.
RULE 61
(Reserved)
PART XVI
APPEALS
RULE 62
PROCEDURE ON APPEAL
Any person affected by an order, decision or certificate of a master, registrar, or assessment officer may appeal the order, decision or certificate to a judge.
An appeal shall be commenced by
(a) filing a Notice of Appeal (Form 62A) in the administrative centre where the court file is located; and
(b) serving the Notice of Appeal on all parties whose interests may be affected by the appeal;
within 14 days after the order, decision or certificate appealed from is signed.
M.R. 26/97; 28/2010
Hearing date set out in Notice of Appeal
In the Notice of Appeal, the appellant shall specify as the date of hearing, any date on which the court sits to hear motions, which must not be less than 14 days after the date the Notice of Appeal is served.
Subrule 37.05(1) (place of hearing motions) applies, with necessary changes, to the place of hearing appeals under this rule.
The Notice of Appeal shall state the relief sought and the grounds of appeal. 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.
On the date for hearing set out in the Notice of Appeal, the judge may
(a) in the case of urgency or where otherwise appropriate, proceed to hear the appeal; or
(b) if the appeal is to be contested, adjourn the hearing so that the appellant may obtain a date for a contested hearing from the registrar, in accordance with subrule (9).
Appeal brief filed and served within 60 days after appeal filed
The appellant shall file an appeal brief and serve it on all persons who are required to be served with the Notice of Appeal within 60 days after the Notice of Appeal is filed.
The appeal brief shall consist of the following:
(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 allowed to be adduced under subrule (13);
(e) a list of any cases and statutory provisions to be relied on by the appellant;
(f) a list of the points to be argued.
Obtaining contested hearing date after appeal brief filed
The appellant may obtain a hearing date for a contested hearing from the registrar only after the appellant files and serves the appeal brief. But the appellant must, within 30 days after filing and serving the appeal brief,
(a) obtain a contested hearing date from the registrar; and
(b) file a Notice of Hearing Date (Form 62B).
Serving Notice of Hearing Date
The appellant shall serve the Notice of Hearing Date on all persons who are required to be served with the Notice of Appeal within seven days after obtaining the hearing date for a contested hearing from the registrar.
The respondent shall at least 14 days before the hearing, file a brief and serve it on the appellant and any persons who are required to be served with the Notice of Appeal.
Contents of respondent's brief
The brief filed by the respondent shall consist of the following:
(a) any further material that was before the officer appealed from and is necessary for the hearing of the appeal;
(b) any further evidence allowed to be adduced under subrule (13);
(c) a list of any cases and statutory provisions to be relied on by the respondent;
(d) a list of the points to be argued.
Bilingual statutory provisions in brief
62.01(12.1) If a party relies on a statutory provision that is required by law to be printed and published in English and French, their brief must contain a bilingual version of that provision.
Adducing further evidence at appeal hearing
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.
APPEAL ABANDONED OR DEEMED ABANDONED BY APPELLANT
Abandoning appeal that was not served
Where the appellant has filed a Notice of Appeal but has not served it, the appellant may abandon the appeal by filing
(a) a Notice of Abandonment of Appeal (Form 62C); and
(b) an affidavit stating that the Notice of Appeal has not been served.
Abandoning appeal that was served
Where the appellant has filed and served a Notice of Appeal, the appellant may abandon the appeal
(a) by serving a Notice of Abandonment of Appeal (Form 62C) on the parties who were served with the Notice of Appeal; and
(b) by filing the Notice of Abandonment of Appeal together with proof that it was served.
An appellant is deemed to have abandoned an appeal, unless a judge orders otherwise, if the appellant
(a) does not file and serve an appeal brief within 60 days after filing the Notice of Appeal, as required by subrule 62.01(7); or
(b) does not, within 30 days after filing and serving the appeal brief, as required by subrule 62.01(9),
(i) obtain a contested hearing date from the registrar, and
(ii) file a Notice of Hearing Date.
If an appeal
(a) is abandoned by the appellant filing a Notice of Abandonment of Appeal; or
(b) is deemed to be abandoned by the appellant under subrule (3);
a party on whom the Notice of Appeal is served, is entitled to the costs of the appeal, unless the court orders otherwise.
RULE 63
STAY PENDING APPEAL
STAY OF ORDER
An appeal to The Court of Appeal shall not operate as a stay of execution or of proceedings under the order appealed from, but the judge who granted the order may stay the order at any time before the appeal is determined.
Stay of master's or other officer's order
An appeal to a judge from an order, decision or certificate of a master, registrar or assessment officer shall not operate as a stay of proceedings under the order, decision or certificate appealed from, but the order, decision or certificate may be stayed at any time before the appeal is determined by
(a) the master, registrar or assessment officer whose order, decision or certificate is to be appealed; or
(b) a judge.
A stay under subrule (1) or (2) may be granted unconditionally or on such terms as are just.
[Repealed]
EFFECT OF STAY
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
A stay does not prevent the settling, signing and filing of the order or the assessment of costs.
Writ of execution and certificate of judgment
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.
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.
[Repealed]
PART XVII
PARTICULAR PROCEEDINGS
RULE 64
MORTGAGE ACTIONS
DEFINITION
In this rule, "subsequent encumbrancer" means a person who has a lien, charge or encumbrance on the mortgaged property subsequent to the mortgage in question in the action.
MORTGAGE ACTIONS
A mortgagee may, in an action, claim,
(a) foreclosure or a sale of the mortgaged premises;
(b) payment of the mortgage debt by any party personally liable therefor; and
(c) possession of the mortgaged premises.
PERSONS TO BE JOINED
All persons interested in the equity of redemption shall be named as defendants in the action subject to subrule (2).
The plaintiff may commence the action without naming subsequent encumbrancers as defendants where it appears expedient to do so by reason of their number or otherwise, but the plaintiff may make a motion without notice on a reference after judgment to add as defendants all subsequent encumbrancers who were not originally made parties.
Where after judgment it appears that persons are interested in the equity of redemption besides those who are already made parties, such persons may be made parties in the master's office on such terms as may be just.
POWERS OF COURT
The court may, on motion either before or after judgment, direct a sale instead of foreclosure without previously determining the priorities of encumbrancers or giving the usual or any time to redeem.
If the judgment directs a sale on default in payment, then, on default being made and an order for sale being obtained, the property shall be sold, with the approval of the master, and the purchaser shall pay his purchase money into court to the credit of the action.
The purchase money, when so paid, shall be applied and paid out of court in payment of what has been found due to the plaintiff and the other encumbrancers, if any, according to their priorities, together with subsequent interest and subsequent costs.
In a redemption action where the plaintiff is declared foreclosed, directions may be given either by the final order foreclosing the plaintiff, or by subsequent order, that all necessary enquiries be made, accounts taken, and proceedings had for redemption or foreclosure, or redemption or sale, as against any subsequent encumbrancers, or for the adjustment of the relative rights and liabilities of the original defendants as among themselves; and such order shall have the same force and effect as a judgment obtained by the original defendant.
On default in payment being made according to the judgment or report in a foreclosure or redemption action, a final order of foreclosure may be granted, on motion without notice, against the party making a default.
Default in payment - redemption action
In a redemption action, on default in payment being made according to the report, the defendant shall be entitled, on motion without notice, to a final order of foreclosure against the plaintiff, or to an order dismissing the action with costs to be paid by the plaintiff.
PERIOD ALLOWED FOR REDEMPTION
In mortgage actions the period allowed for redemption in the first place shall be six months; and, when it becomes necessary to fix a date for redemption after the lapse of the first period, the further time allowed shall be one month.
There shall be one day appointed for redemption by all parties and no appointment of a new day shall be made unless the court so orders for special reasons.
WHERE DEFENDANT DESIRES A SALE
Where a defendant in an action for foreclosure desires a sale, but does not otherwise desire to defend the action, the defendant shall, within the time allowed for filing a statement of defence, file and serve a memorandum, entitled in the action, to the following effect: "I desire a sale of the mortgaged premises instead of foreclosure," and shall pay into court the sum of $250. to meet the expenses of the sale, and thereupon judgment shall be entered for sale.
A person made a party in the master's office and desiring a sale shall, before the master's report is settled, make a similar deposit and obtain an order, which may be issued on requisition, directing sale instead of foreclosure; and thereupon all subsequent proceedings shall be had and taken as if the judgment had been in the first instance for sale.
Plaintiff elects defendant conduct sale
If the plaintiff prefers that the sale be conducted by any defendant desiring the sale, the plaintiff may so elect, and shall thereupon notify the defendant of such election, and the defendant making the deposit shall be entitled to a return thereof (Form 64A).
In other cases the master shall deal with the deposit in making his or her report.
PROCEDURE ON MORTGAGE REFERENCES GENERALLY
Rule 55 (Procedure on a Reference) applies to a reference in an action for foreclosure, sale or redemption, except as provided in this rule.
The reference shall be to a master.
On a reference in an action for foreclosure, sale or redemption, the plaintiff shall file sufficient evidence to enable the master to determine who appears to have a lien, charge or encumbrance on the mortgaged property.
The master shall direct all such persons as appear to have any lien, charge, or encumbrance on the property, subsequent to the plaintiff's mortgage, to be made parties to the action, and to be served with a notice in Form 64B.
Require service of appointment and notice
The master, before proceeding to hear and determine, shall require an appointment (Form 64C) and a notice (Form 64D) to be served at least five days before the hearing on all persons made parties before the judgment appearing to have any lien, charge, or encumbrance on the land, subsequent to the plaintiff's mortgage.
Non-attendance treated as disclaimer
Where a person who has been duly served with a notice under subrule (4), or with an appointment under subrule (5), neglects to attend at the time appointed, the master shall treat such non-attendance as a disclaimer by the person so making default; and any claim of such person shall be thereby foreclosed, unless otherwise ordered on application duly made for that purpose.
Take account of amounts due, assess costs, settle priorities
When all parties have been duly served, the master shall take an account of what is due to the plaintiff, and to the other encumbrancers, if any, for principal money and interest, and assess their costs and settle their priorities, and appoint a time and place, or times and places, for payment according to the practice of the court.
Mortgage account on oath of assignee
On any proceeding for foreclosure by, or for redemption against, an assignee of a mortgagee, the statement of the mortgage account, under the oath of such assignee, shall be sufficient prima facie evidence of the state of such account.
On a reference under a judgment for redemption, the master shall take an account of what is due to the defendant for principal money, interest, and costs, and shall appoint a time and place for payment.
The master shall set out in the report on the reference,
(a) the names of,
(i) all persons who were parties on the reference,
(ii) all subsequent encumbrancers who were served with notice of the reference, and
(iii) all subsequent encumbrancers who failed to attend on the reference and prove their claim;
(b) the amount and priority of the claims of the parties who attended and proved their claims on the reference, and the report shall show those parties as the only encumbrancers of the property; and
(c) the date on which the report was settled.
The report shall be served on all parties who attended on the reference.
WHERE JUDGMENT FOR REDEMPTION OR FORECLOSURE, ETC.
Where the judgment is for redemption or foreclosure, or redemption or sale, such proceedings shall be thereupon had, and with the same effect, as in an action for foreclosure or sale, and in such case the last encumbrancer shall be treated as the owner of the equity of redemption.
CONVEYANCE BY MORTGAGEE
Conveyance to person matching payment
Subject to the provisions of any statute, on payment of the amount found due, the mortgagee shall, unless the judgment otherwise directs, assign and convey the mortgaged property to the party making the payment, or that party's appointee, free and clear of all encumbrances done by the mortgagee, and shall deliver up all deeds and writings in the mortgagee's custody or power relating thereto.
Order for payment of deficiency
If the purchase money is not sufficient to pay what has been found due to the mortgagee (where the mortgagor or person liable to pay the debt is a defendant and the amount due has been claimed) the mortgagee shall be entitled, on motion without notice, to an order for the payment of the deficiency.
CHANGE IN ACCOUNT
Where the state of account as ascertained by an order or a report is changed before the day appointed for payment, the mortgagee may, before the day appointed, give notice of the change of account to the party by whom the money is payable, with particulars of the change of account and of the sum to be paid.
Final order after change of account
Where notice of change of account has been given, and the sum therein mentioned appears proper to be allowed and paid, a final order may be granted without further notice, or the judge hearing the application for the final order may require notice to be given and appoint a new day.
Application to determine amount after a change
Any party given notice of change of account who is dissatisfied, may apply to have the amount to be paid determined and a new day appointed.
Appointment of new payment day
Where the state of account has been changed before the day appointed for payment and no notice of change of account has been given, and the amount to be paid has been reduced, a new day shall be appointed for payment; but, where the amount payable has been increased, a final order may be granted without further notice and without the appointment of a new day.
Change in account after payment day
Where the state of the account has been changed after the day appointed for payment, it shall not be necessary to appoint a new day unless the judge hearing the application for the final order so directs.
RULE 65
RECIPROCAL ENFORCEMENT OF UNITED KINGDOM JUDGMENTS
DEFINITIONS
In this Rule,
"Act" means The Canada-United Kingdom Judgments Enforcement Act; (« Loi »)
"Convention" means the convention appearing as a schedule to the Act; (« Convention »)
"judgment" means a judgment to which the Convention applies. (« jugement »)
APPLICATION FOR REGISTRATION OF JUDGMENT
Notice of an application to the court for registration of a judgment granted by a court in the United Kingdom shall be in Form 65A.
The application shall be supported by an affidavit that confirms the statements contained in the notice of application and sets out any additional facts necessary to establish that the applicant is entitled to register and enforce the judgment.
The judgment and the original proof of service of the originating process of the United Kingdom court, or certified copies of them, shall accompany the affidavit as exhibits.
The affidavit 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.
ENFORCEMENT OF JUDGMENT
A judgment registered under the Act may be enforced in the same manner as an order of the court.
RULE 66
PARTITION PROCEEDINGS
HOW COMMENCED
A proceeding for partition or sale of land under The Law of Property Act may be commenced by notice of application by any person who is entitled to compel partition.
A proceeding for partition or sale by or on behalf of a minor shall be on notice to the Public Guardian and Trustee.
A party who applies for partition or sale of land shall serve a copy of the document by which the proceedings are commenced on every person with a registered interest in the land.
M.R. 12/92; 43/2003
FORM OF JUDGMENT
A judgment for partition or sale shall be in Form 66A.
PROCEEDS OF SALE
All money realized in a partition proceeding from a sale of land shall forthwith be paid into court, and no money shall be distributed or paid out except by order of a judge.
RULE 67
PROCEEDINGS UNDER THE INFANTS' ESTATES ACT
HOW COMMENCED
Application on notice to Public Guardian and Trustee
A proceeding under The Infants' Estates Act shall be commenced by notice of application on notice to the Public Guardian and Trustee.
APPLICATION FOR GUARDIANSHIP OF THE ESTATE OF A MINOR
An application for an order appointing a guardian for the estate of a minor shall be supported by an affidavit in Form 67A.
The court may inquire in a summary way into the value of the minor's property.
A person intending to oppose an application for an order of guardianship may file a caveat against the application, in which case rule 75.02 (Caveats Against Probate) applies with necessary changes.
The bond required to be given by the guardian pursuant to section 6 of The Infants' Estates Act shall be in Form 67B, and any affidavit of justification by sureties shall be in Form 67C.
An order of guardianship shall be in Form 67D.
An order of guardianship may be revoked on application and when the court orders revocation the registrar shall endorse the order of guardianship as follows:
"Revoked by Judge's Order made the day of , 20 ."
APPROVAL OF THE DISPOSITION OF PROPERTY OF A MINOR
Disposition of minor's property
An application for approval of the sale, mortgage, lease or other disposition of property of a minor shall be supported by an affidavit setting out
(a) the nature and amount of all the property to which the minor is entitled;
(b) the nature and value of the property to be disposed of;
(c) the annual income the property yields; and
(d) the facts relied on to establish the need for the proposed disposition.
If a disposition of property is sought to fund an allowance for a special purpose, such as the support or education of the minor, the affidavit shall state.
(a) the amount required;
(b) the facts relied on to establish the need for the allowance; and
(c) the necessity for resorting to the property for the allowance.
CONSENT OF MINOR
The following orders shall not be made unless the minor's consent has been filed, together with a lawyer's affidavit stating the lawyer's belief that the minor understood the consent when the lawyer read and explained it:
(a) an order appointing a guardian of the estate of a minor who is at least 12 years old;
(b) an order approving the sale, mortgage, lease or other disposition of property of a minor who is at least 16 years old.
Judge may dispense with consent
A judge may dispense with the necessity of filing the minor's consent and lawyer's affidavit.
The judge may examine the minor with respect to his or her consent.
Where the minor lives outside Manitoba, the judge may direct an inquiry to be made concerning the minor's consent in such manner as is just.
M.R. 127/94; 120/2004
RULE 68
PROCEEDINGS FOR JUDICIAL REVIEW
HOW COMMENCED
A Judge on application may grant an order of mandamus, prohibition, certiorari or quo warranto.
NOTICE TO NON-PARTIES
The court may require notice to be given to any person not before the court who, in the opinion of the court, may be affected by the order sought.
RULE 69
DEFAULT JUDGMENT UNDER THE HAGUE SERVICE CONVENTION
In this Rule,
"contracting state" means a contracting state to the Hague Service Convention, other than Canada. (« État contractant »)
"default judgment" means a judgment or order that has been made after a party fails to file a responding pleading or appear in court when required by an originating process. (« jugement par défaut »)
"originating process" includes a crossclaim, a counterclaim and an initiating pleading under rule 70.01. (« acte introductif d'instance »)
"responding pleading" includes a statement of defence and an answer. (« acte de procédure en réponse »)
Default judgment when service established under Hague Service Convention
When it has been established that an originating process has been served on a person in a contracting state in accordance with the Hague Service Convention and that person has failed to file a responding pleading or appear in court when required by an originating process, a judge may grant default judgment against that person.
Default judgment when service not established under Hague Service Convention
When service of an originating process on a person in a contracting state has not been established in accordance with the Hague Service Convention, a judge may grant default judgment against that person if
(a) the originating process was transmitted for service on the person in accordance with the Hague Service Convention;
(b) a period of at least six months, or such longer period as the judge considers adequate in the circumstances, has passed since the originating process was transmitted for service; and
(c) the judge is satisfied that every reasonable effort has been made to obtain proof of service from competent authorities in the contracting state.
Setting aside default judgment
A judge may set aside default judgment under this Rule or vary it on such terms as are just.
When default judgment has been entered against a person under this Rule, a judge may extend the time to appeal the judgment if
(a) a motion to extend the time to bring an appeal is brought within one year after the date default judgment was granted;
(b) the person, without any fault on their part, did not have knowledge of the default judgment in time to appeal; and
(c) the person has disclosed a prima facie defence on its merits.
Subrule (1) does not apply to a judgment concerning the status or capacity of a person.
RULE 70
FAMILY PROCEEDINGS
Table of Contents
70.01Definitions
70.01.1Hague Convention — international child abduction
70.02Application of rules
70.02.1Purpose of rule and proportionality
70.03Commencement of family proceedings
70.05Financial information required with originating process
70.05.1Demand for financial information served with initiating pleading or answer
70.05.2Service of initiating pleading
70.05.3Deemed discontinuance of initiating pleading
70.06Service of petition
70.07Answer
70.08Reply to answer
70.09Provision of financial information and sanctions
70.09.1Comparative family property statement
70.10Consolidation of proceedings
70.12Determination of uncontested petitions
70.12.1When service not established under Hague Service Convention
70.13Uncontested petitions — affidavit evidence
70.14Uncontested petitions — documents
70.14.1Joint petition for divorce
70.16Mediation
70.17Family evaluation
70.18Interim proceedings
70.18.1Summary judgment motion
70.19Interim relief order made without notice
70.20Affidavit evidence on motions and applications
70.21Repealed
70.22Motion briefs
70.23Application briefs and appeal briefs
70.24Case management
70.24.1Parent information program
70.25Family Property Act references
70.26Repealed
70.27Pleadings
70.29Use at trial of cross-examination on affidavit
70.30Affidavit evidence at trial
70.31Orders — general provisions
70.32Repealed
70.33Preparing, signing and serving orders
70.34Changes to orders
70.36Appeal
70.37Variation of final orders and family arbitration awards
70.38Repealed
70.39Repealed
70.39.1Applications under section 18.1 of Divorce Act by Manitoba residents
70.39.2Applications under section 18.1 or 19 of Divorce Act from outside Manitoba
70.40Repealed
70.41Repealed
70.42Repealed
70.43Enforcement proceedings under The Family Maintenance Act
Note: Rule 70 was reorganized when it was replaced by M.R. 151/2002. Before that, it had been amended by the following regulations: 150/89; 25/90; 31/90; 146/90; 31/91; 240/91; 12/92; 13/93; 14/94; 127/94; 214/94; 98/95; 201/96; 228/97.
70APetition for Divorce 70A.1Joint Petition for Divorce 70BPetition 70CAcknowledgment of Service 70DFinancial Statement 70D.1Demand for Financial Information 70D.2Request for Triage Conference 70D.3Certificate of Prerequisite Completion 70D.4Triage Brief 70D.5Comparative Family Property Statement 70ENotice of Application 70E.1Notice of Application for Exclusive Occupation Order 70E.2Affidavit for Exclusive Occupation Order 70E.3Notice of Application for Special Relief under the Divorce Act (Canada) 70FNotice of Application for Guardianship 70GNotice of Application to Vary 70G.1Repealed 70HNotice of Motion to Vary 70H.1Notice of Opposition to Variation 70H.2Notice of Motion to Vary Family Arbitration Award 70IAffidavit of Service 70JAnswer or Answer and Petition for Divorce 70KReply to Answer or Reply to Answer and Petition 70LNotice Withdrawing Opposition 70MAffidavit of Petitioner's Evidence 70M.1Joint Petitioner Affidavit 70NOrder 70ODivorce Judgment 70O.1Divorce Judgment on Joint Petition for Divorce 70PCertificate of Divorce 70QNotice of Motion 70RMotion Brief 70SRepealed 70S.1Repealed 70S.2Repealed 70S.3Trial Readiness Certificate 70TRequest for Adjournment 70USummary of Assets and Liabilities 70VExplanatory Note 70WRecalculation and Enforcement Information Form 70XEnforcement Opt-Out 70YNotice of Satisfaction 70ZNotice of Hearing 70AANotice of Change of Name 70BBRequest for Emergent Hearing 70CCNotice of Appeal from a Master for a Family Proceeding under Case Management Process 70DDRequest for Motion or Subsequent Case ConferenceTable of Forms
DEFINITIONS
In this Rule,
"case conference judge" means the judge who presides at the case conference for a family proceeding; (« juge chargé de la conférence de cause »)
"child support service" means the child support service continued under The Child Support Service Act; (« service des aliments pour enfants »)
"contact order" means
(a) an order respecting access made under section 78 of The Child and Family Services Act, and
(b) an order respecting contact between a child and a person who is not the child's parent, made under the Divorce Act (Canada); (« ordonnance de contact »)
"designated authority of Manitoba" means a person or entity designated to exercise the powers under sections 18.1 to 19.1 of the Divorce Act (Canada) within Manitoba; (« autorité désignée du Manitoba »)
"designated jurisdiction" means a designated jurisdiction as defined in section 18 of the Divorce Act (Canada). (« État désigné »)
"family arbitration award" means an award made in a family arbitration conducted under The Arbitration Act; (« sentence arbitrale familiale »)
"family proceeding" or "proceeding" means a family proceeding within the meaning of section 41 of The Court of King's Bench Act; (« instance » ou « instance en matière familiale »)
"guidelines" means the Child Support Guidelines Regulation, Manitoba Regulation 58/98, except that where the application is under the Divorce Act (Canada) and only one of the spouses or former spouses resides in Manitoba, "guidelines" means the Federal Child Support Guidelines, SOR/97-175; (« lignes directrices »)
"hearing date" means the date on which a contested matter, other than a trial, is scheduled to be heard; (« date d'audience »)
"initiating pleading" means a document by which a family proceeding is commenced under this rule, and includes the following documents:
(a) petition for divorce (Form 70A),
(b) petition (Form 70B),
(c) notice of application (Form 70E),
(d) notice of application for guardianship (Form 70F),
(d.1) notice of application for special relief under the Divorce Act (Canada) (Form 70E.3);
(e) notice of application to vary (Form 70G),
(f) notice of motion to vary (Form 70H) respecting a final order,
(g) statement of claim,
(h) notice of motion to vary family arbitration award (Form 70H.2); (« acte introductif d'instance »)
"joint petition for divorce" means a joint petition for divorce made under rule 70.14.1; (« requête conjointe en divorce »)
"parenting order" means
(a) a custody order or access order made under The Family Maintenance Act, or
(b) an order respecting parenting time or decision-making responsibility made under the Divorce Act (Canada); (« ordonnance parentale »)
"pleadings" means the documents referred to in rule 70.27; (« acte de procédure »)
"recalculated child support order" means a child support order that has been recalculated by the child support service; (« ordonnance de fixation d'un nouveau montant de pension alimentaire pour enfants »)
"standard clause" means wording approved by and available from the court that is required to be used in an order referred to in subrule 70.31(11); (« clause type »)
"support determination officer" means a person appointed as a support determination officer under The Child Support Service Act; (« agent de détermination de la pension alimentaire »)
"table" means a child support table set out in Schedule I of the Federal Child Support Guidelines, SOR/97-175, which Schedule is adopted in Schedule I of the Child Support Guidelines Regulation, Manitoba Regulation 58/98. (« table »)
"triage judge" means a judge who is designated by the Chief Justice or his or her designate to act as a triage judge; (« juge chargé du triage »)
M.R. 151/2002; 92/2005; 98/2015; 170/2018; 42/2020; 7/2021
Hague Convention — international child abduction
In this Rule, a reference to "the Hague Convention on the Civil Aspects of International Child Abduction" means the Convention on the Civil Aspects of International Child Abduction as set out in the Schedule to The Child Custody Enforcement Act.
APPLICATION OF RULES
The Rules apply to family proceedings, except where this Rule provides otherwise, expressly or by implication.
PURPOSE OF THIS RULE
Purpose of family proceedings rules
The purpose of this Rule is to
(a) help parties resolve the legal issues in a family proceeding fairly and in a way that will
(i) take into account the impact that the conduct of the proceeding may have on a child, and
(ii) minimize conflict and promote cooperation between the parties; and
(b) secure the just, most expeditious and least expensive determination of every family proceeding on its merits.
Securing the just, most expeditious and least expensive determination of a family proceeding on its merits includes, so far as is practicable, conducting the proceeding and allocating appropriate court resources to the proceeding in ways that are proportionate to
(a) the interests of any child affected;
(b) the importance of the issues in dispute;
(c) the amount of support and the value of property likely at issue in the proceeding;
(d) the complexity of the proceeding; and
(e) the likely expense of the proceeding to the parties.
COMMENCEMENT OF FAMILY PROCEEDINGS
Divorce under the Divorce Act (Canada)
A family proceeding in which the petitioner claims a divorce under the Divorce Act (Canada), alone or in conjunction with other relief, shall be commenced by filing a petition for divorce in Form 70A.
Relief under The Family Maintenance Act, etc.
A family proceeding in which a divorce is not claimed and in which the petitioner claims relief under
(a) The Family Maintenance Act;
(b) The Family Property Act;
(b.1) section 15.1, 15.2 or clause 16.1(1)(a) of the Divorce Act (Canada) in a corollary relief proceeding as defined in subsection 2(1) of that Act;
(c) The Divorce and Matrimonial Causes Act, (1857);
(d) The Homesteads Act;
(e) The Law of Property Act for a partition or sale of land as between spouses, former spouses, common-law partners as defined in that Act or former common-law partners;
(f) section 7 of The Married Women's Property Act;
(g) an agreement respecting a separation, common-law relationship, marital property or family property; or
(h) the Civil Marriage Act (Canada);
alone or in conjunction with other relief, shall be commenced by filing a petition in Form 70B.
M.R. 151/2002; 104/2004; 170/2018; 109/2019; 7/2021
The following proceedings shall be commenced by filing a notice of application in Form 70E.3 with an affidavit in support:
(a) an application for a parenting order under clause 16.1(1)(b) of the Divorce Act (Canada);
(b) an application for variation of a parenting order under clause 17(1)(b)(ii) of the Divorce Act (Canada);
(c) an application for a contact order under subsection 16.5(1) of the Divorce Act (Canada);
(d) an application for variation of a contact order under subclause 17(1)(c) of the Divorce Act (Canada).
A proceeding in which guardianship of a child is sought shall be commenced by filing a notice of application for guardianship in Form 70F and the title shall show an applicant for guardianship as the guardianship applicant.
Guardianship application with child support application
If guardianship of a child is sought, as well as child support for the child, the application for child support shall be filed in the guardianship proceeding.
Guardianship where child already subject of child protection proceedings
If guardianship is sought of a child who is the subject of an existing child protection proceeding or an existing child protection order
(a) the application for guardianship shall be filed in the child protection proceeding in accordance with subrule (6); and
(b) the title of proceeding shall be amended to name all parties.
When leave required for guardianship application
An application for guardianship under subrule (5) may be filed in the child protection proceeding
(a) without leave of the court at any time before setting a trial date; or
(b) with leave of the court after setting a trial date.
A family proceeding to vary, rescind or suspend a final order shall be commenced by filing, in accordance with rule 70.37,
(a) a notice of motion to vary (Form 70H); or
(b) a notice of application to vary (Form 70G).
Application re Hague Abduction Convention
A family proceeding in which the return of a child is sought pursuant to the Hague Convention on the Civil Aspects of International Child Abduction shall be commenced by filing a notice of application (Form 70E).
Application re Family Homes on Reserves and Matrimonial Interests or Rights Act (Canada)
A family proceeding in which only exclusive occupation of a family home is sought under section 20 of the Family Homes on Reserves and Matrimonial Interests or Rights Act (Canada), with a request for a without notice interim order, shall be commenced by filing a notice of application in Form 70E.1 with an affidavit in support (Form 70E.2).
Varying a family arbitration award
A family proceeding to vary, rescind or suspend a family arbitration award shall be commenced by filing, in accordance with rule 70.37, a notice of motion to vary family arbitration award (Form 70H.2).
A family proceeding, other than a proceeding under subrule (1), (2), (3), (4), (5), (7), (7.2) or (7.3), shall be commenced by filing
(a) a notice of application (Form 70E) with an affidavit in support; or
(b) where it is not practical to proceed on affidavit evidence, a statement of claim.
M.R. 151/2002; 271/2014; 42/2020
Where a notice of application (Form 70E), a notice of motion to vary (Form 70H), a notice of application to vary (Form 70G), a notice of application for guardianship (Form 70F) or a notice of motion to vary family arbitration award (Form 70H.2) contains an application for child support, the notice shall state whether the claim is for
(a) an amount of support in the applicable table;
(b) an amount for special or extraordinary expenses; or
(c) another amount under the guidelines.
M.R. 151/2002; 170/2018; 42/2020; 119/2021
CERTIFICATE OF MARRIAGE
The certificate of marriage shall be filed at the time a petition for divorce is filed under subrule 70.03(1) or 70.07(2) unless the petitioner or the petitioner's lawyer states in writing
(a) that the certificate is not readily available; and
(b) that he or she undertakes to file the certificate.
FINANCIAL INFORMATION REQUIRED WITH INITIATING PLEADING
Where Form 70D (financial statement) required
Where an issue relating to support or division of property is raised in the initiating pleading, the petitioner shall file and serve Parts 1, 2, 3 and 4 of Form 70D (financial statement) with the initiating pleading.
M.R. 151/2002; 98/2015; 170/2018
70.05(2) to (4) [Repealed]
M.R. 151/2002; 98/2015; 170/2018
Where Federal Child Support Guidelines apply
Where an application is made in the initiating pleading for child support under the Divorce Act (Canada), and
(a) the Federal Child Support Guidelines apply; and
(b) income information of the petitioner is necessary to determine the amount of the order;
the petitioner shall file and serve, in addition to the parts of Form 70D (financial statement) required by this rule,
(c) the documents required under section 21 of the Federal Child Support Guidelines attached as exhibits to the petitioner's affidavit; or
(d) an explanation in the petitioner's affidavit as to why the documents referred to in clause (c) are not attached.
DEMAND FOR FINANCIAL INFORMATION SERVED WITH INITIATING PLEADING OR ANSWER
Demand for financial information served with initiating pleading
A party that serves an initiating pleading or an answer must also serve a demand for financial information (Form 70D.1) on the other party at the same time the initiating pleading or answer is served, if
(a) the initiating pleading or answer includes a claim for support or a request to vary support; and
(b) the other party's income information is necessary to determine an amount of support.
SERVICE OF INITIATING PLEADING
Time limit for serving initiating pleading
An initiating pleading must be served on the other party within one year after the date it is filed, unless an order for substituted service, to validate service, or extend the time for service is granted within that year.
[Repealed]
DEEMED DISCONTINUANCE OF INITIATING PLEADING
Deemed discontinuance of initiating pleading
An initiating pleading is deemed to be discontinued if proof of service of it on the other party has not been filed
(a) within one year after the date it is filed; or
(b) within the period specified by the court if an order for substituted service, to validate service, or extend the time for service is granted.
[Repealed]
SERVICE OF PETITION
A petition shall be served on the respondent personally or in accordance with subrules 16.03(2) and (3) (acceptance of service by lawyer), unless the court makes an order under rule 16.04 for substituted service or dispensing with service.
Petitioner not to effect personal service
A petition that is served personally shall be served by someone other than the petitioner.
A person who effects personal service of a petition shall
(a) ask the respondent to complete and sign the acknowledgment of service (Form 70C) on the back of, or attached to, the petition; and
(b) either
(i) sign as witness to the respondent's signature, or
(ii) record the fact that the respondent declined to sign the acknowledgment of service,
as the case may be.
An affidavit or certificate of service of a petition shall be in Form 70I, and
(a) where personal service is effected, shall state fully the means of knowledge of the deponent as to the identity of the person served; and
(b) where a signed acknowledgment of service (Form 70C) is obtained from the person served, the original signed acknowledgment of service shall be attached to the affidavit.
Service requirements in particular proceedings
In addition to meeting other requirements in these Rules relating to service of documents, the following additional service requirements apply:
(a) a party who is seeking a declaratory order that a man is or is not in law the father of a child, shall serve on the Director of Child and Family Services appointed under The Child and Family Services Act a copy of the document by which the relief is sought;
(b) a party who is seeking a change in the amount of a support order or relief that may result in cancellation of arrears of support or suspension of enforcement of support, shall serve on the Director of Assistance, designated under The Manitoba Assistance Act, a copy of the document by which the relief is sought;
(b.1) in addition to the requirement under clause (b), a party who is seeking a change in the amount of a support order or relief that may result in the cancellation of arrears of support when the responding party resides in another province or territory must contact the appropriate authority to determine if there is an order assignee under subsection 20.1(1) of the Divorce Act (Canada) or a government or government agency referred to in section 39 of The Inter-jurisdictional Support Orders Act. If so, the party must serve that order assignee, government or government agency with a copy of the document by which the relief is sought;
(c) a party who is seeking a suspension of enforcement of support or arrears where the responding party resides outside Manitoba, shall serve on the designated officer under Part VI of The Family Maintenance Act a copy of the document by which relief is sought, whether the application is made with or without notice to the responding party;
(d) a party who is seeking partition or sale of land under The Law of Property Act, shall, comply with subrule 66.01(3);
(e) a person making an application directly to court for the return of a child as contemplated by article 29 of the Hague Convention on the Civil Aspects of International Child Abduction shall serve the application on the Family Law Section, Legal Services Branch of the Department of Justice, the Central Authority under the Convention;
(f) where notice has been given to the court respecting a request for the return of a child under the Hague Convention on the Civil Aspects of International Child Abduction, either by
(i) a requisition referred to in subrule 70.45(1), or
(ii) an application referred to in subrule 70.03(7.1),
any party seeking a parenting order, contact order or private guardianship of the child must serve all documents filed after the requisition or application is filed on the Family Law Section, Legal Services Branch of the Department of Justice, the Central Authority under the Convention, until the application for the return of the child has been finally determined by the court.
M.R. 151/2002; 12/2005; 14/2008; 98/2015; 7/2021
ANSWER
In this rule,
"answer" includes an answer and petition for divorce; and (« réponse »)
"respondent" includes a person who files an answer or an answer and petition for divorce. (« intimé »)
A respondent wishing to oppose a petition or seek relief shall file and serve an answer in Form 70J, but if the relief being sought by the respondent includes a divorce, Form 70J shall be titled "answer and petition for divorce".
Time for filing and serving answer
An answer shall be filed and served within the period prescribed under Rule 18 for filing and serving a statement of defence.
Financial information required
Where an issue related to support or division of property is raised in the initiating pleading or the answer, the respondent shall file and serve Parts 1, 2, 3 and 4 of Form 70D (financial statement)
(a) with the answer; or
(b) if the respondent does not file an answer, within the period prescribed under Rule 18 for filing and serving a statement of defence.
M.R. 151/2002; 98/2015; 170/2018
70.07(5) to (7) [Repealed]
M.R. 151/2002; 98/2015; 170/2018
Where Federal Child Support Guidelines apply
Subject to subrule (9), where an application for child support under the Divorce Act (Canada) is made in the initiating pleading or the answer, and
(a) the Federal Child Support Guidelines apply; and
(b) the income information of the respondent is necessary to determine the amount of the order;
the respondent shall file and serve, in addition to the parts of Form 70D (financial statement) required by subrule (4),
(c) the documents required under section 21 of the Federal Child Support Guidelines attached as exhibits to the respondent's affidavit; or
(d) an explanation in the respondent's affidavit as to why the documents referred to in clause (c) are not attached.
M.R. 151/2002; 98/2015; 170/2018; 7/2021
Subrule 70.07(8) does not apply to an application under section 18.1 or 19 of the Divorce Act (Canada) from another province, territory or designated jurisdiction that is received for a hearing in Manitoba under rule 70.39.2.
REPLY TO ANSWER
Time for filing and serving reply
A reply to an answer or to an answer and petition for divorce shall be
(a) prepared in accordance with Form 70K; and
(b) filed and served within 20 days after the answer has been served.
Financial information required
Where an issue related to support or division of property is raised in the answer, the person that filed the initiating pleading shall file and serve any financial information required by subrule (3) that the person has not already filed and served, within 20 days after the answer has been served, whether or not a reply is filed and served.
Rule 70.07 applies with necessary changes to the financial information the person is required to provide under subrule (2).
PROVISION OF FINANCIAL INFORMATION AND SANCTIONS
Financial information if urgent situation
Where relief is urgently required, a party may commence a proceeding or file an answer or reply without complying with rule 70.05, 70.07 or 70.08 as the case may be, on filing an undertaking to file and serve the required financial information within 20 days of commencing a proceeding or filing an answer or reply.
Order requiring financial information to be filed
Where a party fails to file and serve the required financial information within the time prescribed, the court may, on motion without notice, make an order requiring that the financial information be filed and served within a specified time.
Particulars of financial information
Where the financial information provided by a party lacks particularity, the other party may demand particulars. If the particulars are not supplied within seven days, the court may, on such terms as are just,
(a) order that particulars be filed and served; or
(b) strike out the party's financial statement or the affidavit attaching documents required under section 21 of the Federal Child Support Guidelines and order that new documents be filed and served within a specified time.
Sanctions for failure to comply
Where a party fails to comply with an order to file and serve a financial statement, a new financial statement, particulars or other financial information, the court may make
(a) an order dismissing the party's action or striking out the party's answer; and
(b) an order for costs against the party.
COMPARATIVE FAMILY PROPERTY STATEMENT
Comparative family property statement
If a claim for division of property is raised in a family proceeding, either party may complete their portion of a comparative family property statement (Form 70D.5) and serve it on the other party after the pleadings have closed.
Completing and filing comparative family property statement
) When a party is served with a comparative family property statement, that party must, within 14 days after being served, complete their portion of the comparative family property statement and file and serve it on the other party.
For greater certainty, the completion and filing of a comparative family property statement is an applicable prerequisite for the purpose of Rule 70.24. If a party who is served with a comparative family property statement fails to complete and file it in accordance with subrule (2), the other party may bring a motion under subrule 70.24(21) to compel compliance with subrule (2).
CONSOLIDATION OF PROCEEDINGS
Where more than one family proceeding between the same parties has been commenced, all the proceedings shall be consolidated by the registrar,
(a) where a divorce has been claimed, under the title of proceeding and file number of the proceeding in which the divorce is claimed; and
(b) where a divorce has not been claimed, under the title of proceeding and file number of the proceeding first commenced.
DEFAULT IN FILING ANSWER
Default to be noted by registrar
Default in filing an answer within the time prescribed by this Rule shall be noted by the registrar upon proof of service of the petition.
A respondent may not file an answer after default has been noted, except with the consent of the other party or with leave of the court.
A respondent may file an answer at any time before default is noted.
UNCONTESTED PETITIONS
Determination of uncontested petitions
Where a respondent
(a) is noted in default under rule 70.11; or
(b) files a notice withdrawing opposition (Form 70L);
the petitioner may, by filing a requisition, set the petition down for determination by a judge solely on affidavit evidence, without an oral hearing and without an appearance by the parties or their lawyers. If the judge determines that an oral hearing is required in order to make a proper determination, the judge may set a date for the parties to appear before that judge for an oral determination.
When service not established under Hague Service Convention
When service of a petition in a contracting state under the Hague Service Convention has not been established, the petitioner must proceed in accordance with rule 69.03.
UNCONTESTED PETITIONS — AFFIDAVIT EVIDENCE
Affidavit of petitioner's evidence (Form 70M)
For purposes of a determination under rule 70.12, the petitioner shall file an affidavit of petitioner's evidence (Form 70M), adapted as required in the circumstances.
An affidavit filed as evidence under this rule shall contain only statements of facts that are within the personal knowledge of the deponent, except that in respect of the financial circumstances of the respondent, the affidavit may contain statements of facts that are not within the personal knowledge of the deponent if the facts are evidenced by documentation attached as an exhibit to the affidavit or are admitted by the respondent to the deponent.
UNCONTESTED PETITIONS — DOCUMENTS
Where a petition is set down under rule 70.12, the petitioner shall provide the court with three copies of an order (Form 70N) but if protective relief is sought, four copies of an order are required.
M.R. 151/2002; 92/2005; 42/2020
Petition for divorce — documents
Where a petition for divorce is set down under rule 70.12, the petitioner shall, unless otherwise ordered by the court, provide the court with
(a) three copies of a divorce judgment (Form 70O);
(b) a stamped envelope addressed to each party at his or her last known address or the address given by the party when served with the petition; and
(c) three copies of an order (Form 70N) where corollary relief under the Divorce Act (Canada) or relief under another Act is sought, but if protective relief is sought, four copies of an order.
M.R. 151/2002; 92/2005; 42/2020
[Repealed]
JOINT PETITION FOR DIVORCE
When joint petition for divorce available
Spouses may file a joint petition for divorce if they jointly seek
(a) a divorce under the Divorce Act (Canada); and
(b) an order granting any other relief under the Divorce Act (Canada) or another Act, if sought.
A joint petition for divorce is not available if one of the parties claims relief which is not consented to by the other party.
A joint petition for divorce may be commenced by filing
(a) a joint petition for divorce (Form 70A.1); and
(b) a certificate of marriage.
References to parties to joint petition for divorce
The parties to a joint petition for divorce are to be referred to as the petitioner and co-petitioner.
Setting joint petition for determination
The petitioner or co-petitioner may, by filing a requisition, set the petition down for a determination by a judge solely on affidavit evidence, without an appearance by the parties or their lawyers.
At the time a requisition for a determination of a joint petition for divorce is filed, the parties must file the following documents:
(a) the applicable affidavit evidence required under subrules (6) to (10);
(b) three copies of a divorce judgment on joint petition for divorce (Form 70O.1);
(c) a stamped envelope addressed to each party at their last known address;
(d) three copies of a proposed order if corollary relief under the Divorce Act (Canada) or relief under another Act is sought.
The petitioner and co-petitioner must file, jointly or separately, a joint petitioner affidavit (Form 70M.1).
Subrule 70.13(2) applies to a joint petitioner affidavit, with necessary changes.
Where Form 70D (financial statement) required
If child support, spousal support or the division of property is claimed in a joint petition for divorce, Parts 1, 2, 3 and 4 of Form 70D (financial statement) must be attached to the joint petitioner affidavit.
Where Manitoba child support guidelines apply
If child support is claimed in a joint petition for divorce and both parties reside in Manitoba, the documents required under subsection 20(1) of the Child Support Guidelines Regulation, Manitoba Regulation 58/98, must be attached to the joint petitioner affidavit.
Where federal child support guidelines apply
70.14.1(10) If child support is claimed in a joint petition for divorce and one of the parties resides outside Manitoba, the documents required under section 21 of the Federal Child Support Guidelines must be attached to the joint petitioner affidavit.
Judge may require oral hearing
70.14.1(11) If a judge determines that an oral hearing is required in order to make a proper determination on a joint petition for divorce, the judge may set a date for the parties to appear before that judge.
CERTIFICATE OF DIVORCE
A certificate of divorce issued under subsection 12(7) of the Divorce Act (Canada) shall be in Form 70P.
MEDIATION
Where an issue in a family proceeding has been referred to a mediator by the court pursuant to subsection 47(1) of The Court of King's Bench Act, the mediator,
(a) shall attempt to meet with the parties and, if they agree, attempt to mediate their dispute; and
(b) may meet with children, lawyers and such other persons as the mediator deems necessary, in an attempt to mediate the dispute.
Upon the conclusion of mediation, the mediator shall notify the parties, or their lawyers, in writing of the terms of any settlement that has been tentatively reached, and shall advise the court that mediation has been concluded.
FAMILY EVALUATION
Where pursuant to subsection 49(1) of The Court of King's Bench Act the court orders that a family evaluator, a social worker or other person be appointed, the appointed person shall prepare and deliver to the court, in accordance with subsection 49(2) of the Act, a report which shall, unless directed otherwise, include
(a) information the appointed person considers relevant to the matters in dispute;
(b) an opinion as to the suitability of each party to have custody or access or parenting time, decision-making responsibility or contact;
(c) the views and preferences of the children;
(d) an opinion as to what plan respecting parenting would be in the best interests of the children, whether it corresponds with their views and preferences or not;
(e) the basis of the opinion; and
(f) a report upon any particular matter referred by a judge or master.
M.R. 151/2002; 130/2017; 42/2020; 7/2021
A family evaluation report must be placed on the "B" file.
INTERIM PROCEEDINGS
An interim proceeding, other than a proceeding to which subrule 70.03(7.2) applies, shall be commenced by a notice of motion (Form 70Q)
(a) which states the precise relief sought, and, where there is a claim for child support, states whether the claim is for an amount of support in the applicable table, an amount for special or extraordinary expenses, or another amount under the guidelines; and
(b) which is supported by an affidavit which clearly and concisely sets forth the facts upon which the moving party relies, and which shall not contain argument.
SUMMARY JUDGMENT MOTION
Subrule 20.01(2) does not apply to a summary judgment motion in a family proceeding.
M.R. 130/2017; 170/2018; 121/2019
A judge must allow a motion for summary judgment to proceed if he or she is satisfied that the summary judgment motion can achieve a fair and just adjudication of the issues in the action by providing a process that
(a) allows the judge to make the necessary findings of fact;
(b) allows the judge to apply the law to the facts; and
(c) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.
A judge may make any order or give any direction that he or she considers necessary or appropriate respecting the conduct of a summary judgment motion, including an order or direction respecting the evidence in the motion and timelines for the completion of any step relating to the motion.
Without limiting the generality of subrule (3), the judge may order that oral evidence be presented by one or more parties, with or without time limits on its presentation, if the judge considers it necessary to make a determination on a motion for summary judgment.
Summary judgment judge to preside at trial
Where practicable, the judge who hears a motion for summary judgment in a family proceeding must preside at the trial or final hearing of the proceeding.
INTERIM RELIEF ORDER MADE WITHOUT NOTICE
A party who has obtained an interim order for relief without notice (Form 70N), except an order made under subsection 18.1(12) or 19(10) of the Divorce Act (Canada), shall immediately serve on the other party,
(a) a new notice of motion specifying
(i) the date on which the other party may appear, and
(ii) the relief that will be sought at that time;
(b) a copy of the order;
(c) copies of all affidavits filed in support of the application for the order;
(d) any further affidavits intended to be relied upon on the hearing of the new motion; and
(e) the originating petition and notice of motion, if not previously served, or the notice of application under subrule 70.03(7.2).
M.R. 151/2002; 271/2014; 7/2021
AFFIDAVIT EVIDENCE ON MOTIONS AND APPLICATIONS
Subrules 39.01(2) and (3) not applicable
Subrules 39.01(2) and (3) do not apply to a motion or application in a family proceeding.
Time for filing and serving affidavits in support
Where a motion or application in a family proceeding is made on notice, the affidavits on which the motion or application is founded shall be
(a) filed in the court office where the motion or application is to be heard, not later than 2:00 p.m. on a day that is at least 14 days before the hearing date or four days before the date the matter is first returnable before the court; and
(b) served within the time for service of the motion or application under these rules.
Time for filing and serving affidavits in opposition
All affidavits to be used at the hearing in opposition to a motion or application shall be
(a) filed in the court office where the motion or application is to be heard, not later than 2:00 p.m. on a day that is at least seven days before the hearing date; and
(b) served within the time specified in clause (a).
Time for filing and serving affidavits in reply
All affidavits in reply to be used at the hearing shall be
(a) filed in the court office where the motion or application is to be heard, not later than 2:00 p.m. on a day that is at least four days before the hearing date; and
(b) served within the time specified in clause (a).
A party who wishes to file an affidavit and has not done so within the time allowed shall
(a) mark the first page of the affidavit, in prominent type, "Late"; and
(b) file the affidavit, together with a motion requesting leave for the late filing, returnable before the presiding judge on the hearing date.
Subrules (2) to (5) do not apply to a motion before a judge brought in a family proceeding that is subject to the case management process under rule 70.24.
Where a hearing date for a motion has been set, no other motion shall be heard on that hearing date without
(a) the consent of the other party; or
(b) obtaining leave of the court.
[Repealed]
M.R. 151/2002; 98/2015; 170/2018
A party to a motion or application is entitled to file one affidavit of the party in support of or in opposition to the motion or application.
A party may also file one affidavit from each person who is not a party, without leave, if that person has evidence relevant to the proceeding.
Affidavit responding to new matters
In addition, the party who commenced the motion or application is entitled to file a second affidavit of the party to respond to new matters contained in an affidavit that was filed by a responding party.
Leave required to file additional affidavits
Other than the affidavits referred to in subrule (8), (9) or (10), a party to a motion or application is not entitled to file any other affidavits without obtaining leave from a master or a case conference judge or the presiding judge at the hearing.
[Repealed]
MOTION BRIEFS
Rule 37.08 (motion briefs) does not apply to a family proceeding.
[Repealed]
M.R. 92/2005; 98/2015; 170/2018; 42/2020
A moving party shall file and serve a motion brief (Form 70R)
(a) at least four days before the hearing date; or
(b) if the hearing date is less than seven days after the date when it was obtained, before 2:00 p.m. on a day that is at least two days before the hearing date.
Responding party's motion brief
A responding party shall file and serve a motion brief (Form 70R)
(a) at least two days before the hearing date; or
(b) if the hearing date is less than seven days after the date when it was obtained, before 2:00 p.m. on a day that is at least one day before the hearing date.
The motion brief of each party shall
(a) set out the matters in issue;
(b) include a list of documents to be referred to by either party, including the date of filing and other identifying details;
(c) set out the party's position on the issues;
(d) include relevant cases and statutory provisions if a specific point of law is to be relied upon; and
(e) include calculations if any of the following are in issue:
(i) child support,
(ii) spousal support,
(iii) remission of arrears.
Bilingual statutory provisions in brief
If a party relies on a statutory provision that is required by law to be printed and published in English and French, their brief must contain a bilingual version of that provision.
The judge or master may, either before or at the hearing of the motion, waive or vary the requirements of this rule.
APPLICATION BRIEFS AND APPEAL BRIEFS
If an application is contested,
(a) rule 70.22 applies, with necessary changes; and
(b) an application brief is required using Form 70R (motion brief) with necessary changes.
If an appeal to a judge is filed, Rule 62 (appeals) applies and an appeal brief is required.
CASE MANAGEMENT OBJECTIVES
Objectives of case management process
Recognizing the emotional and financial impact family proceedings can have on those involved and consistent with the principle of securing the just, most expeditious and least expensive determination of a family proceeding, the case management process established by this rule has the following objectives:
(a) facilitating settlement of family proceedings;
(b) setting early trial or final hearing dates and establishing timelines for the completion of steps in the litigation process;
(c) identifying and simplifying the issues in dispute between the parties;
(d) avoiding unnecessary or wasteful steps in the litigation process;
(e) ensuring that a family proceeding is ready for trial or final hearing by making orders and giving directions respecting substantive and procedural issues in the proceeding.
[For additional historical information, see the note after this rule.]
INTERPRETATION
In this rule,
"answer" includes a statement of defence. (« réponse »)
"petitioner" includes an applicant and a plaintiff. (« requérant »)
"respondent" includes a defendant. (« intimé »)
"triage conference co-ordinator" means the person assigned by the court to be the triage conference co-ordinator for the purpose of this rule. (« coordonnateur des conférences de triage »)
In this rule, "applicable prerequisites" means the steps that are required to be completed by the parties to a family proceeding in order to obtain a triage conference date. The applicable prerequisites for a particular family proceeding will depend on the matters at issue between the parties. The applicable prerequisites in relation to particular issues are specified in Form 70D.3 (Certificate of Prerequisite Completion).
PROCEEDINGS SUBJECT TO CASE MANAGEMENT PROCESS
Subject to subrule (5), the procedural requirements set out in this rule apply to all family proceedings, other than
(a) a proceeding under Part III (Child Protection) of The Child and Family Services Act and any related private guardianship or access proceeding under Part VII of that Act;
(b) a proceeding to set aside a protection order under section 11 of The Domestic Violence and Stalking Act, if there are no other ongoing family proceedings involving the parties to the protection order;
(c) a proceeding under Part VII (Private Guardianship and Access) of The Child and Family Services Act or under The Adoption Act;
(d) a proceeding under The Inter-jurisdictional Support Orders Act;
(e) a proceeding under Part VI (Enforcement of Maintenance Orders) of The Family Maintenance Act;
(f) a proceeding
(i) under section 18.1 or 19 of the Divorce Act (Canada) to obtain, vary, rescind or suspend an order of support,
(ii) under section 19.1 of the Divorce Act (Canada) respecting recognition of a decision of a designated jurisdiction, and
(iii) under section 18.2 of the Divorce Act (Canada) requesting that an application for variation of a support order be converted into an inter-jurisdictional support application under section 18.1 of that Act;
(f.1) a proceeding under subsection 22.1(1) of the Divorce Act (Canada) to recognize a foreign decision that has the effect of varying, rescinding or suspending a parenting order or a contact order;
(f.2) a motion for an exemption from the requirement to give notice under subsection 16.8(3), 16.9(3) or 16.96(3) of the Divorce Act (Canada);
(f.3) a motion for leave under subsection 16.1(3), 16.5(3) or 17(2) of the Divorce Act (Canada);
(f.4) an application for a parenting order under subclause 16.1(1)(b) of the Divorce Act (Canada);
(f.5) an application for variation of a parenting order under subclause 17(1)(b)(ii) of the Divorce Act (Canada);
(f.6) an application for a contact order under subsection 16.5(1) of the Divorce Act (Canada);
(f.7) an application for variation of a contact order under subclause 17(1)(c) of the Divorce Act (Canada);
(g) and (h) [repealed] M.R. 42/2020;
(i) an application pursuant to the Hague Convention on the Civil Aspects of International Child Abduction in which the return of a child is sought, other than an application directly to court as contemplated by article 29 of the Convention;
(j) a proceeding to enforce an order for custody pursuant to The Child Custody Enforcement Act, other than an order granting a right of access or visitation to a child;
(k) a proceeding under or in respect of
(i) subsection 2(4) or 6(1) of The Change of Name Act,
(ii) The Marriage Act for consent to an intended marriage of a minor,
(iii) The Parents' Maintenance Act,
(iv) subsection 155(4) of The Insurance Act, where application is made by or on behalf of the spouse, former spouse, common-law partner as defined in that Act or child of the insured, or
(v) sections 12.1 and 13 to 14.3 of The Garnishment Act;
(l) an application under The Arbitration Act respecting a family arbitration, except a notice of motion to vary a family arbitration award under subsection 45(9) of that Act;
(m) an application under clause 4(1)(c) of The Child Support Service Act to set aside a decision of the child support service;
(n) an application for a determination as to whether an adult child is entitled to maintenance that is made by a party who is the recipient of support who disagrees with a decision of a designated officer under section 53.9 of The Family Maintenance Act respecting eligibility of enforcement of a support obligation for their adult child;
(o) an application by a party that objects to an administrative suspension by the designated officer under section 61.1.1 of The Family Maintenance Act, except a notice of motion for a suspension order under section 61.2 of that Act;
(p) a motion under subrule 70.34(1) or (2);
(p.1) a motion to dismiss, strike or stay a proceeding;
(q) an application, motion or statement of claim seeking to enforce a final order, a variation order or a spousal agreement as defined in The Family Property Act; and
(r) a contempt motion related to a final order or a variation order.
M.R. 170/2018; 42/2020; 7/2021; 119/2021
Including excluded proceedings
Where a family proceeding is excluded from the case management process under subrule (4), a judge may, at any time, order that the proceeding be subject to all or specified portions of the case management process.
Modifying case management process in specified judicial centres
The Chief Justice may, by practice direction, vary the requirements of this rule in a specified judicial centre in the manner specified in the direction.
CASE MANAGEMENT PAMPHLET
The registrar must give every petitioner in a family proceeding sufficient copies of the case management pamphlet prepared by the registrar, for service on each party.
Petitioner serves case management pamphlet
The petitioner must serve the case management pamphlet on every other party at the same time and in the same manner as the initiating pleading is served.
Case management pamphlet given to party
The lawyer of record for a party who receives the case management pamphlet from the court or is served with it must give a copy of the pamphlet to the party.
RESTRICTING MOTIONS AND APPLICATIONS PRIOR TO TRIAGE CONFERENCE
Restriction on motions or applications prior to triage conference
Subject to subrules (11) and (12), no motions or applications in a family proceeding may be brought before a judge until the triage conference for the family proceeding is held.
A judge may deal with the following prior to the triage conference for a family proceeding:
(a) an application under the Family Homes on Reserves and Matrimonial Interests or Rights Act (Canada) for an interim order of exclusive occupation that is sought on a without notice basis;
(b) a motion for an order of reference with respect to the date of commencement of cohabitation, the separation date or both of those dates;
(c) a motion for an order of reference referred to in clause 70.25(1.4)(a).
Exception — emergent situations
A judge may hear a motion or application prior to the triage conference for a family proceeding if the motion or application relates to a situation involving one of the following:
(a) an immediate or imminent risk of harm to a party or a child of a party;
(b) the removal of a child from Manitoba;
(c) the loss or destruction of property.
A party seeking a hearing on a motion or application referred to in subrule (12) must file a request for emergent hearing (Form 70BB).
Requirement to complete prerequisites after hearing
When the hearing of a motion or application into an emergent situation under subrule (12) has concluded, the parties must comply with the requirements of this rule in order to obtain a triage conference date.
Requirement to complete prerequisites after decision on conversion
70.24(14.1) When a decision has been made on a request for the conversion of an application or motion for variation of a support order into an application under section 18.1 of the Divorce Act (Canada), the parties must comply with the requirements of this rule in order to obtain a triage conference date on those portions of the application or motion that were not converted into an application under section 18.1 of the Divorce Act (Canada).
No effect on motions before masters
Nothing in subrule (10) affects the jurisdiction of masters to hear motions prior to a triage conference. Without restricting the scope of their jurisdiction, masters may hear the following motions before a triage conference:
(a) a motion with respect to service, including a motion for substituted service, to validate service or to extend the time for service;
(b) a motion for financial disclosure;
(c) a motion to withdraw as counsel;
(d) a motion to determine whether a party has satisfied all applicable prerequisites in order to obtain a triage conference date;
(e) a motion to compel a party to complete applicable prerequisites in order to obtain a triage conference date;
(f) a motion to appoint a family evaluator, a social worker or other person to evaluate the matter under subsection 49(1) of The Court of King's Bench Act;
(g) a motion to refer parties to a designated mediator under subsection 47(1) of The Court of King's Bench Act.
Once a triage conference has been held, all motions in a family proceeding are to be heard by the judge presiding at a prioritized hearing under subrule (25) or the case conference judge, except a motion in relation to a reference under subrule 54.05(1).
APPEALS OF MASTERS' ORDERS
Appeals not subject to Rule 62
70.24(15.1) Rule 62 does not apply to an appeal of an order of a master in a family proceeding that is subject to the case management process established by this rule.
Notice of appeal from order of a master
70.24(15.2) A party to a family proceeding who seeks to appeal an order of a master must
(a) file a Notice of Appeal (Form 70CC) within 14 days after the order is signed;
(b) obtain a returnable date from the registrar; and
(c) serve the Notice of Appeal with the returnable date on all parties whose interests may be affected by the appeal within 14 days after the Notice of Appeal was filed.
70.24(15.3) The Notice of Appeal must state the relief sought and the grounds of appeal. 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.
70.24(15.4) On the returnable date,
(a) in the case of an appeal of an order that strikes out a pleading or that either declines or allows the setting aside of default judgment, the judge must
(i) proceed to hear the appeal, or
(ii) set a hearing date for the appeal and give directions to the parties respecting the appeal; or
(b) in the case of all other appeals, the judge must adjourn the hearing of the appeal to the triage conference for the proceeding that is to be scheduled in accordance with this rule and give directions to the parties respecting the appeal.
70.24(15.5) When an appeal is to be dealt with at a triage conference, the triage judge must either hear the appeal at the conference or set a prioritized hearing for the appeal.
Adducing further evidence at appeal hearing
70.24(15.6) The hearing of an appeal from a master is a fresh hearing and the parties may not adduce further evidence, except with leave of the judge hearing the appeal.
TRIAGE SCREENING
A party seeking a triage conference must
(a) file the following documents at the same time:
(i) a Request for Triage Conference (Form 70D.2) that specifies the triage screening date,
(ii) a Certificate of Prerequisite Completion (Form 70D.3),
(iii) a triage brief; and
(b) serve the Request for Triage Conference, Certificate of Prerequisite Completion and the triage brief on the other party at least 14 days before the triage screening date, unless the parties have agreed to a shorter period of notice.
Materials to be filed by responding party
The other party to the family proceeding must file and serve a Certificate of Prerequisite Completion and their triage brief no later than four days before the triage screening date.
The triage brief that the parties are required to file must be in Form 70D.4 and must include the following information:
(a) the nature of the matters at issue in the family proceeding respecting parenting orders, child support, spousal support and property issues (as applicable);
(b) the issues where the parties are in agreement and the areas where the parties have not reached agreement;
(c) the party's position on the issues where no agreement has been reached and the party's proposal to settle those issues.
At the triage screening, the triage conference co-ordinator must review the status of the family proceeding. If the co-ordinator is satisfied that all applicable prerequisites have been completed, the co-ordinator must set a triage conference date for the proceeding.
Procedure if no triage conference date set
If the triage conference co-ordinator determines that all of the applicable prerequisites have not been completed, the co-ordinator must advise the parties of the prerequisites that need to be completed in order for a triage conference date to be set. The parties may appear before the triage conference co-ordinator after the outstanding prerequisites have been completed to request the setting of a triage conference date.
Master to deal with applicable prerequisites
A master may hear a motion in relation to a dispute respecting the completion of the applicable prerequisites or a motion to compel a party to complete an applicable prerequisite and may order a party to complete a prerequisite by a specified deadline.
Sanctions for failure to comply with order re prerequisites
70.24(21.1) If a party fails to comply with an order to complete an applicable prerequisite, a master may make
(a) an order dismissing the party's action or striking out the party's answer; and
(b) an order for costs against a party.
TRIAGE CONFERENCES AND PRIORITIZED HEARINGS
The judge presiding at the triage conference for a family proceeding is responsible for
(a) narrowing the issues in dispute between the parties;
(b) resolving issues that remain in dispute between the parties, where possible; and
(c) determining if there are issues that should, for reasons of practicality or proportionality, be adjudicated prior to the first case conference.
The judge presiding at a triage conference
(a) has all of the powers of a case conference judge under subrule (34);
(b) may hear a motion or application at the triage conference; and
(c) may hear an appeal from a master's order, based on the evidence that was before the master, or determine how the appeal is to be addressed.
Rules regarding attendance at triage conference
Subrules (37) to (39) apply, with necessary changes, to the attendance of parties and lawyers at a triage conference.
Scheduling prioritized hearings
If the judge presiding at a triage conference determines that there are issues that should be addressed prior to the first case conference that cannot be resolved at the triage conference, the judge must schedule a prioritized hearing to address those issues. The prioritized hearing must be held before the first case conference for the family proceeding.
At the conclusion of the triage conference, the triage judge must set the date for the first case conference for the family proceeding as well as any prioritized hearing.
A prioritized hearing must take place within 30 days after the triage conference. The first case conference must take place within 30 days after the triage conference unless a prioritized hearing is scheduled. If a prioritized hearing has been scheduled, the first case conference must take place within 30 days after the prioritized hearing.
If the triage judge or the judge at a prioritized hearing makes an order that provides that the order is reviewable, that review is to be heard by the case conference judge for that family proceeding.
An order respecting the confirmation of a master's report under Rule 54 and an order setting aside a protection order made at the triage conference or at a prioritized hearing are final orders and are not reviewable by the case conference judge.
CASE CONFERENCES
The case conference judge is responsible for managing the pre-trial conduct of a family proceeding in a manner that will achieve the objectives set out in subrule (1).
Unless otherwise directed by the Chief Justice or his or her designate on the request of the case conference judge or a party to the family proceeding, the case conference judge must
(a) preside at all subsequent case conferences; and
(b) hear all motions arising in the family proceeding.
Request for motion or subsequent case conference
70.24(31.1) If, after the first case conference has been held, a party seeks
(a) to bring a motion that has not already been scheduled by the case conference judge or for which leave has not previously been granted by the case conference judge; or
(b) another case conference to be held
(i) before the date of the next case conference that had been scheduled by the case conference judge, or
(ii) when the case conference judge has not scheduled the next case conference;
the party must file a request for motion or subsequent case conference (Form 70DD) and comply with the process set out in a practice direction issued by the Chief Justice.
Considerations of case conference judge
At a case conference, the case conference judge may make orders and give directions that the judge considers will
(a) further the purpose of the family proceedings rules as set out in subrule 70.02.1(1); and
(b) take into account the principle of proportionality as set out in subrule 70.02.1(2).
Orders and directions at a case conference
The case conference judge may, on motion by any party or on his or her own motion, without materials being filed, make any order or give any direction that he or she considers necessary or advisable to facilitate the just, most expeditious and least expensive determination or disposition of a family proceeding.
Examples of orders and directions
Without restricting the generality of subrule (33), the case conference judge may do any of the following:
Substantive Matters
1.
Make an order against a party on any issue in the family proceeding, with or without notice to the non-attending party, if the party fails to attend the case conference without reasonable excuse.
2.
Order a party to pay child support on an interim basis, that is reviewable on motion to the case conference judge, taking into account the current annual income of the party with the obligation to pay child support and the applicable table of the guidelines, provided the amount of child support ordered does not exceed the applicable table amount for an annual income of $150,000.
3.
Impute income to a party on an interim basis, that is reviewable on motion to the case conference judge, for the purposes of making an order under paragraph 2 if the party has failed to disclose financial information when under an obligation to do so.
4.
Order that the enforcement of support or arrears be suspended in accordance with section 61.2 of The Family Maintenance Act.
5.
Vary a protection order or prevention order under The Domestic Violence and Stalking Act, with or without conditions, to permit a party to attend a proceeding and communicate with another party at the proceeding.
6.
Vary an order under clause 10(1)(j) of The Family Maintenance Act, with or without conditions, to permit a party to attend a proceeding and communicate with another party at the proceeding.
7.
Direct the parties to have the child support service recalculate the child support payable.
Procedural Matters
8.
Adjourn a case conference or any hearing in the proceeding, other than the trial or final hearing date.
9.
Direct the parties to attend a further case conference.
10.
Direct a party to bring a motion for summary judgment.
11.
Order that a pleading be amended or specifying the time when pleadings are closed under the rules.
12.
Direct a party who intends to file a motion to do so within a specified time.
13.
Order that procedures for discovery of documents and examination of parties be dispensed with or limited.
14.
Direct, in accordance with rule 70.30, that at the trial the evidence be adduced, in whole or in part, by affidavit.
15.
Direct that a case conference, or a portion of a case conference, be recorded.
16.
If a proceeding to strike or expunge all or part of a pleading or document has been or will be commenced, provide directions respecting the proceeding, including that the proceeding be limited or dismissed.
17.
Order that one or more matters in issue be severed and proceed to a final hearing.
18.
Order that two or more proceedings be heard at the same time or consolidated in accordance with Rule 6.
19.
Direct that a party file and serve written material and specify the time for doing so.
20.
Order that within specified time periods, specified actions in the proceeding be taken, including
(a) filing trial records, agreed statements of facts, agreed books of documents and briefs of the law; and
(b) exchanging documents, including exchanging
(i) witness lists,
(ii) experts' reports, and
(iii) resumes of experts.
21.
Give directions as to the preparation and entry of an order.
In making an order or giving a direction under subrule (34), the case conference judge may do so on the basis of oral submissions.
An order made at a case conference
(a) must, unless the case conference judge orders otherwise, be prepared in accordance with rule 70.31, filed in the court and served on the other party; and
(b) is effective from the date it is pronounced, unless the order provides otherwise.
ATTENDING A CASE CONFERENCE
Personal attendance by parties and lawyers
Each party and the lawyer who proposes to act for a party must personally attend each case conference, unless subrule (38) or (39) applies.
Party subject to no contact order
If a court order has been made that prohibits or restricts one of the parties from having contact or communicating with another party ("no contact order"), the party protected by that order must
(a) advise the court of the nature and terms of the no contact order; and
(b) arrange for a telephone or video conference for the case conference in accordance with subrule (39).
In extenuating circumstances, or where a party is subject to a no contact order, the party or the party's lawyer may attend a case conference by way of a telephone or video conference if
(a) facilities for a telephone or video conference are available at the court or provided by a party; and
(b) the telephone or video conference is arranged by the party and notice of the arrangement is given to the other parties and to the court.
SETTING TRIAL DATES
Trial dates set at first case conference
The trial dates or final hearing date for a family proceeding are to be set by the case conference judge at the first case conference.
The case conference judge may change the scheduled length of a trial or final hearing if he or she considers it appropriate.
Adjourning scheduled trial dates
A scheduled trial or final hearing date may only be adjourned by the Chief Justice or his or her designate on the request of a party.
Each party in a family proceeding must file a trial readiness certificate (Form 70S.3) no later than 45 days before the scheduled trial or final hearing date. If a party is unable to certify that they are ready for the trial or final hearing, the party must file a request for adjournment with the Chief Justice or his or her designate no later than 30 days before the scheduled start of the trial or final hearing.
CASE CONFERENCE MEMORANDUM
After a case conference, the case conference judge must issue a memorandum setting out the results of the case conference, including
(a) any orders made or directions given;
(b) the issues that are resolved and the matters that are agreed to by the parties;
(c) the issues requiring a trial or hearing; and
(d) the date of the next case conference, if any.
Order based on unrecorded submissions
If the case conference judge has made an order on the basis of unrecorded oral submissions, the judge must include in the memorandum the order made and any reasons for the order.
Case conference memorandum to be filed and sent out
A case conference memorandum must be filed and sent to the parties or their lawyers and, subject to subrule (47), is binding on the parties.
Disputes re case conference memorandum
A party who disputes the accuracy of a case conference memorandum must, within 14 days after receipt of the memorandum, notify the court and the other party of the objection. The other party must provide the court and the objecting party with their response to the objection within seven days after receiving the objection. The case conference judge may
(a) issue a written notice to the parties confirming the correctness of the original case conference memorandum;
(b) issue a revised case conference memorandum; or
(c) re-open the case conference for the purpose of addressing the objection.
FAILURE TO COMPLY WITH RULES OR ORDERS
Failure to comply with rules or orders
If a party, without reasonable excuse,
(a) fails to comply with any provision of the Rules; or
(b) fails to comply with any order or direction given or made by the court;
the case conference judge may make one or more of the following orders:
(c) an order for costs against a party or a party's lawyer;
(d) an order staying a proceeding;
(e) an order striking out all or part of a pleading;
(f) an order compelling the attendance of a party or a party's lawyer at a case conference;
(g) any other order that the judge considers appropriate.
Costs under clause (48)(c) are to be fixed by the case conference judge and are payable immediately, unless otherwise ordered.
If the case conference judge makes an order under subrule (48), the judge must provide reasons for the order in the memorandum or on the record at the case conference.
If an order is made under clause (48)(d) or (e), the party against whom the order is made may make an application by notice of motion to the case conference judge to set aside the order.
GENERAL MATTERS
Returning documents to parties
On the request of a party, any document made available to the case conference judge or triage judge, other than the triage brief, must be returned to the party after the case conference or triage conference, except any document which the parties agree may be retained for the use of the judge who presides at the trial or final hearing.
Settlement discussions without prejudice
Settlement discussions at a case conference or triage conference are without prejudice and must not be referred to in a motion or at the trial or final hearing, except as disclosed in a case conference memorandum.
TRANSITIONAL
Where case conference already held
Subject to subrule (55), if a case conference for a family proceeding has already been held or scheduled under the former rule, the judge who presided or who is scheduled to preside at the case conference will continue to serve as the case conference judge for the family proceeding.
If a judge was scheduled to hear a motion, including a summary judgment motion, under the former rule and no future case conference had been scheduled, that judge is to serve as the case conference judge for the family proceeding.
Setting trial dates if case conference already held
If a case conference for a family proceeding has already been held under the former rule, trial dates or a final hearing date must be scheduled at the next case conference or motion for the family proceeding, whichever occurs first.
In subrules (54) to (56), "former rule" means rule 70.24 as it read immediately before February 1, 2019.
Note: Rule 70.24 was reorganized when it was replaced by M.R. 170/2018. Before that, it was replaced by M.R. 98/2015 and it had been amended by the following regulations: 151/2002; 11/2005; 92/2005; 93/2005; 76/2007; 14/2008; 69/2010; 271/2014.
PARENT INFORMATION PROGRAM
In this rule,
"acknowledgement of completion form" means a form approved by the program in which a person acknowledges that they have completed the program. (« formule d'attestation de conformité »)
"application" includes a petition and a petition for divorce; (« requête »)
"party" means a party to a proceeding but does not include
(a) an agency within the meaning of The Child and Family Services Act,
(b) the Director of Child and Family Services appointed under The Child and Family Services Act, or
(c) the Director of Assistance designated under The Manitoba Assistance Act; (« partie »)
"program" means the For the Sake of the Children parent information program operated by the government; (« programme »)
"program official" means a person who delivers the program or his or her delegate. (« responsable du programme »)
M.R. 67/2007; 98/2015; 42/2020
The purpose of this rule is to promote the best interests of children by providing an information program to persons in dispute over issues respecting children, as set out in subrule (3).
Except as otherwise provided under this rule, every person who is a party to a proceeding in which a parenting order, contact order or private guardianship under Part VII of The Child and Family Services Act is sought must complete the program.
M.R. 67/2007; 170/2018; 42/2020; 7/2021
Proceedings to vary not included
Subrule (3) does not apply to a proceeding to vary an order.
Required completion of program
A party must have completed the program,
(a) in the case of a family proceeding that is subject to the case management process under rule 70.24, before requesting a triage conference date from the triage conference co-ordinator; or
(b) in any other case,
(i) before a motion for an interim order is heard by a judge, or
(ii) if no motion for an interim order is heard, before an application for a final order is heard by a judge.
M.R. 67/2007; 170/2018; 42/2020
[Repealed]
This rule does not apply to the following proceedings:
(a) an inter-jurisdictional proceeding, including a request for return pursuant to The Hague Convention on the Civil Aspects of International Child Abduction;
(b) a proceeding in which the parties are consenting to the order;
(c) a proceeding that is unopposed;
(d) a proceeding in which default in filing an answer has been noted by the registrar.
70.24.1(8) and (9) [Repealed]
70.24.1(9.1) [Repealed]
70.24.1(10) [Repealed]
70.24.1(11) A party is exempt from completing the program, if the party
(a) completed the program
(i) within the three-year period before the application was filed, or
(ii) if a motion for an interim order is filed after an application is filed, within the three-year period before the motion was filed; and
(b) files an acknowledgement of completion form or an affidavit that confirms that the person completed the program.
M.R. 67/2007; 170/2018; 42/2020
Exemption if program outside Manitoba previously completed
70.24.1(12) A party who completed a comparable program in a jurisdiction outside Manitoba is exempt from completing the program, if
(a) a program official approves the comparable program;
(b) the party completed the comparable program within the time period set out in clause (11)(a); and
(c) the party files the following documents:
(i) a certificate issued by the program official approving the comparable program,
(ii) an affidavit confirming the party's completion of the comparable program.
M.R. 67/2007; 170/2018; 42/2020
70.24.1(13) [Repealed]
M.R. 67/2007; 170/2018; 42/2020
70.24.1(14) and (15) [Repealed]
Parent information program pamphlet
70.24.1(16) The registrar shall give every party who files an application or a motion in a proceeding to which this rule applies sufficient copies of the program pamphlet approved by the registrar, for service on all other parties.
70.24.1(17) The party who receives the pamphlets from the registrar shall serve the pamphlet on every other party at the same time and in the same manner as the application or motion is served.
70.24.1(18) If the lawyer of record for a party receives from the court or is served with the program pamphlet, the lawyer shall give a copy of it to the party.
70.24.1(19) [Repealed]
70.24.1(20) The court may deal with a party's failure to complete the program, or to follow any other provision of this rule, by making any order that the court considers appropriate, including any of the following:
(a) requiring the party to complete the program within a specified period of time and in a specified manner;
(b) ordering costs against a party or a party's lawyer;
(c) refusing to consider the party's evidence;
(d) suspending the party's right to submit evidence until the party completes the program;
(e) adjourning, staying or dismissing the proceeding;
(f) striking out all or part of a pleading.
M.R. 67/2007; 170/2018; 42/2020
Setting aside or varying order
70.24.1(21) If an order is made under clause 20(a) or any of clauses (c) to (f), the party against whom the order is made may bring a motion to set aside or vary the order.
M.R. 67/2007; 170/2018; 42/2020
70.24.1(22) A party may prove that they completed the program by providing an acknowledgement of completion form.
FAMILY PROPERTY REFERENCES
Family Property Act references
This rule applies to a reference before a master for an accounting of assets and liabilities between spouses or common-law partners under section 15 of The Family Property Act or for any other matter under The Family Property Act directed by a judge for a reference before a master.
Timing of motion on reference re dates of cohabitation and separation
If a party is requesting a reference to allow the party to obtain from the master, for later confirmation, a recommendation identifying the date of cohabitation, the date of separation or both dates, a motion for an order of reference must be brought on those issues alone prior to the triage conference. The motion must be made on notice to the other party and must be supported by affidavit evidence from the requesting party.
Timeline for responding affidavit
70.25(1.1.1) The other party to a motion under subrule (1.1) must file any responding affidavit evidence no later than 14 days after being served with the notice of motion.
70.25(1.1.2) The requesting party may obtain a date for a determination of a motion under subsection (1.1) by filing a requisition. The requisition must be filed no earlier than 14 days after the notice of motion was served.
Conduct of motion for reference re dates of cohabitation and separation
A motion under subrule (1.1) will be considered by a triage judge solely on affidavit evidence, without an oral hearing and without an appearance by the parties or their lawyers.
Initiating a reference re dates of cohabitation and separation
Rule 55 applies, with necessary changes, to the procedure for initiating a reference respecting the date of cohabitation, the date of separation or both dates. Subrules (6) to (11) do not apply to such references.
Separate reference on other issues
If there are any family property issues which remain unresolved, either by written agreement or court order, other than the dates set out in subrule (1.1), a party must bring a motion for an order of reference on those issues. The motion must be brought
(a) prior to the triage conference, with the consent of both parties; or
(b) at the triage conference, for determination by the triage judge.
A motion under subrule (1.4) must be supported by an affidavit that includes a Comparative Family Property Statement (Form 70D.5).
A motion under clause (1.4)(a) will be considered by a triage judge solely on affidavit evidence, without an oral hearing and without an appearance by the parties or their lawyers.
An order directing a reference to a master for an accounting of assets and liabilities pursuant to section 15 of The Family Property Act shall set out the valuation date determined in accordance with section 16 of that Act unless the issue of determining the valuation date is specifically referred to the master in the order.
Directions from judge re shareability issues
If issues of shareability of assets or liabilities or ownership of assets are to be determined on the reference, directions shall be set out in the order of reference to delegate the determination of these issues to the master as part of the scope of the reference.
Directions from judge re non-shareable assets or debts
If jointly held assets or liabilities, or other assets or liabilities, alleged to be excluded from the application of The Family Property Act are to be valued on a reference, a specific direction for the valuation of such assets or liabilities shall be set out in the order of reference.
Within 15 days after the granting of an order of reference, the moving party must take the steps required under rule 70.33 to have the order prepared, signed and filed, unless all applicable issues between the parties in relation to the reference have been resolved.
A motion to initiate a reference may be filed only after the order of reference has been signed by the judge.
Deadline to file motion for reference
A motion to initiate a reference must be filed within 15 days after the order of reference has been signed by the judge, unless all applicable issues between the parties in relation to the reference have been resolved.
The party seeking to initiate a reference (initiating party) shall file and serve the following documents on the other party (responding party) at least 25 days before the date the motion is returnable before the master:
(a) a notice of motion requesting that a date for a hearing for directions be set;
(b) a summary of assets and liabilities (Form 70U) which shall list as of the valuation date or if the valuation date is not agreed to, as of the proposed valuation date,
(i) the assets owned, controlled or possessed by the initiating party and the value of each asset as of the valuation date, and
(ii) the liabilities of the initiating party and the amount of each liability as of the valuation date.
Within 10 days after being served with the initiating party's summary of assets and liabilities, the responding party shall file the following documents and serve them on the initiating party:
(a) the responding party's summary of assets and liabilities (Form 70U), which shall list as of the valuation date:
(i) the assets owned, controlled or possessed by the responding party and the value of each asset as of the valuation date, and
(ii) the liabilities of the responding party and the amount of each liability as of the valuation date;
(b) the responding party's response to the initiating party's summary of assets and liabilities and include
(i) whether the responding party agrees or disagrees with the inclusion of each asset or liability,
(ii) the responding party's position as to the value of each asset and liability, and
(iii) identification and valuation of any other assets or liabilities which he or she believes should be included in, or excluded from, the initiating party's summary of assets and liabilities.
The initiating party shall file and serve a response to the responding party's summary of assets and liabilities. It shall be completed in the same manner as the responding party's response and filed and served no later than 2:00 p.m. on the day before the hearing date of the motion.
Serving supporting documentation
When an initiating party or a responding party serves a summary of assets and liabilities, he or she shall also serve on the other party any relevant supporting documentation that substantiates the information in the summary of assets and liabilities.
The notice of motion to initiate a reference under subrule (6) is returnable before a master at the time and date determined by the registrar.
If required documents not filed
On the date the motion is returnable, if the documents referred to in subrules (7) and (8) have been filed and served as required by this rule, the master may set a hearing date for directions. If they have not, the master may adjourn the motion on such terms that are just.
Notice of opposition to master's report re dates of cohabitation and separation
70.25(11.1) If a party opposes the confirmation of a master's report that contains a recommendation on the date of cohabitation, the separation date, or both of those dates, that party must notify the judge presiding at the triage conference for the proceeding.
Prioritized hearing re opposition to master's report redates of cohabitation and separation
70.25(11.2) Upon being advised of a party's opposition under subrule (11.1), the triage judge must set a prioritized hearing date to deal with the opposition to the confirmation of the master's report at the same time as he or she schedules the case conference for the family proceeding. Until the prioritized hearing takes place, the master's report cannot be confirmed.
Notice of opposition to master's report re other family property matters
70.25(11.3) If a party opposes the confirmation of a master's report that deals with any family property matter other than the dates set out in subrule (1.1), that party must bring a motion to oppose confirmation of the report.
Motion to be dealt with by trial judge
70.25(11.4) A motion referred to in subrule (11.3) is to be heard by the judge presiding at the trial of the family proceeding.
Procedure re opposition to master's report
70.25(11.5) Except in exceptional circumstances, the judge dealing with opposition to confirmation of a master's report must make his or her determination based on the evidence before the master.
70.25(11.6) A judge's order respecting the confirmation of a master's report is a final order and is not reviewable.
Except as provided by this rule, Part XIII of the Rules (references) applies to a reference before the master under this rule.
If a party to a family proceeding in which a reference under The Family Property Act is sought or ordered fails to comply with this rule or an order or direction of the court in relation to the reference, the court may make an order
(a) dismissing the party's action or striking out the party's answer; and
(b) for costs against the party.
[Repealed]
M.R. 151/2002; 92/2005; 76/2007; 14/2008; 69/2010; 98/2015; 130/2017; 170/2018
PLEADINGS
Proceeding commenced by petition
In a family proceeding commenced by a petition for divorce (Form 70A) or a petition (Form 70B); pleadings consist of
(a) the petition or petition for divorce;
(b) the answer or answer and petition for divorce; and
(c) reply, if any.
Proceeding commenced by statement of claim
In a family proceeding commenced by a statement of claim, pleadings consist of the statement of claim, the statement of defence and reply, if any.
Proceeding commenced by notice of motion to vary
In a family proceeding commenced by a notice of motion to vary, pleadings consist of the notice of motion to vary and the notice of opposition to variation.
Proceeding commenced by notice of application
In a family proceeding commenced by a notice of application, a notice of application to vary or a notice of application for guardianship, pleadings consist of that notice of application and the notice of opposition to variation, in the case of a notice of application to vary.
TRIAL RECORD
A trial record in a family proceeding shall contain, in the following order,
(a) a table of contents, describing each document by its content and date;
(b) a copy of the pleadings;
(c) a copy of a request or order for particulars and the particulars delivered in response;
(d) a copy of any order respecting the conduct of the trial;
(e) any other document ordered by a judge at a pre-trial conference or case conference to be included in the trial record.
Time for filing and serving trial record
The party who commences the proceeding shall file and serve a trial record within 40 days after a trial date has been set, unless otherwise ordered by a judge.
TRIAL RECORD USE AT TRIAL OF CROSS-EXAMINATION ON AFFIDAVIT
In a family proceeding, the cross-examination on the affidavit of a party that is conducted before a trial may be used at the trial in the same manner as that party's examination for discovery.
AFFIDAVIT EVIDENCE AT TRIAL
In a family proceeding, the evidence of a witness at a trial may, subject to this rule, be presented by affidavit.
Subrule 4.07(2) applies to an affidavit under this rule.
The affidavit shall be filed and served on any opposing party at least 21 days before the date of the trial.
Notice to cross-examine at trial
An opposing party who wishes to cross-examine the deponent of an affidavit filed under this rule shall give notice of the intent to cross-examine to the party filing the affidavit at least 10 days before the date of the trial.
Where notice is received in accordance with subrule (4), the deponent shall attend at the trial and submit to cross-examination, and where the deponent fails to do so the affidavit shall not be accepted in evidence unless the judge directs otherwise.
Where a deponent is required to attend at trial for cross-examination under subrule (5) and the court is of the opinion that the evidence so obtained does not materially add to the affidavit evidence, the court may order that costs in an appropriate amount be awarded against the party requiring the attendance.
Limitation to calling evidence
A party who presents evidence by affidavit under this rule shall not, except with leave of the court, call any additional evidence from the deponent, but this does not limit the party's right to re-examine the deponent on a new matter brought out on cross-examination.
ORDERS — GENERAL PROVISIONS
Rule 59 (orders) does not apply to an order in a family proceeding.
An order is effective from the date on which it is pronounced, unless it provides otherwise.
A court shall grant only relief that has been claimed in a pleading and shall deal with each claim for relief
(a) in the case of a family proceeding in which a triage conference has not yet been scheduled or held, by granting an order
(i) for the relief claimed,
(ii) dismissing the claim for relief,
(iii) adjourning the claim for relief, or
(iv) allowing the claim for relief to be withdrawn by a party; or
(b) in the case of a family proceeding in which a triage conference has been scheduled or held, by granting an order
(i) for the relief claimed, or
(ii) dismissing the claim for relief.
M.R. 151/2002; 92/2005; 170/2018; 42/2020
An interim order shall deal with all relief claimed in a motion.
A final order shall deal with all relief claimed in the pleadings.
Order on which interest payable
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.
An order shall have one of the following titles:
(a) Divorce Judgment (Form 70O);
(a.1) Divorce Judgment on Joint Petition for Divorce (Form 70O.1);
(b) Interim Order (Form 70N);
(c) Final Order (Form 70N);
(d) Order (Form 70N), to be used for an order other than one described in this subrule;
(e) Variation Order (Form 70N);
(f) Default Order (Form 70N);
(g) Provisional Order (Form 70N);
(h) Provisional Variation Order (Form 70N);
(i) [repealed] M.R. 7/2021;
(j) Recalculated Child Support Order;
(k) Variation of Family Arbitration Award Order (Form 70N).
M.R. 151/2002; 92/2005; 42/2020; 7/2021
A covering page is not required for an order.
An order shall be in Form 70O (divorce judgment), Form 70O.1 (divorce judgment on joint petition for divorce) or 70N (order) and shall include
(a) the name of the judge who pronounced it;
(b) the date on which it was pronounced;
(c) a preamble setting out the particulars necessary to understand the order, including
(i) the date of the hearing,
(ii) the name of each party who was present and whether he or she was represented by a lawyer,
(iii) the name of each party who was not present and whether he or she was represented by a lawyer,
(iv) whether the parties consent to the order, or a part of it;
(v) the documents filed in support, and
(vi) any undertaking made by a party as a condition of the order;
(d) the statutory provisions or rules under which the relief is granted; and
(e) the names of persons to be served with the order and the manner of service.
M.R. 151/2002; 92/2005; 42/2020; 7/2021
[Repealed]
In addition to the requirements of subrule (9), but subject to subrules (10.1) and (10.2), a variation order shall include
(a) in the preamble,
(i) the date of the order being varied and the name of the judge who pronounced it, and
(ii) the date of any prior variation order and the name of the judge who pronounced it; and
(b) in the body of the order, the clause of the original order or prior variation order to be deleted or replaced, and the clause to be added, if any.
Content of certain variation orders respecting recalculated child support orders
70.31(10.1) Where subsection 7(1) of The Child Support Service Act or subsection 25.1(4) of the Divorce Act (Canada) applies and a party applies for a variation within 30 days after both parties are notified of the recalculation of child support, the variation order shall include
(a) in the preamble
(i) the date of the recalculated child support order and the name of the support determination officer who pronounced it, and
(ii) a statement that subsection 7(1) of The Child Support Service Act or subsection 25.1(4) of the Divorce Act (Canada), as the case may be, applies; and
(b) in the body of the order
(i) the clause of the original order, prior variation order or prior recalculated child support order to be deleted or replaced, and the clause to be added, if any; and
(ii) the effect of the variation order on the recalculated order to which subsection 7(1) of The Child Support Service Act or subsection 25.1(4) of the Divorce Act (Canada) applies.
Content of orders varying recalculated child support orders
70.31(10.2) A variation order varying a recalculated child support order shall include
(a) in the preamble, the date of the recalculated child support order and the name of the support determination officer who pronounced it, and
(b) in the body of the order, the clause of the recalculated child support order being deleted or replaced and the new child support provision, if any.
Standard clauses required for orders in certain Acts and in the Rules
Subject to subrules (12) and (13), where an order is pronounced under one of the following enactments standard clauses shall be used in the preamble and body of the order:
(a) the Divorce Act (Canada);
(b) The Family Maintenance Act;
(c) The Family Property Act;
(d) The Law of Property Act;
(e) The Court of King's Bench Act or the Rules;
(f) The Inter-jurisdictional Support Orders Act;
(g) Part VII of The Child and Family Services Act (private guardianship of the person and access);
(h) The Child Custody Enforcement Act;
(i) The Domestic Violence and Stalking Act, except a protection order pronounced under that Act;
(j) The Homesteads Act;
(k) The Real Property Act;
(l) The Married Women's Property Act;
(m) The Child Support Service Act;
(n) The Arbitration Act.
M.R. 151/2002; 104/2004; 92/2005; 93/2005; 42/2020
Standard clauses required in preamble
The preamble of an order referred to in subrule (11) shall use standard clauses, unless the order is pronounced under an Act which requires that the preamble be in a different form.
Exceptions to standard clauses
A proposed order which contains non-standard wording but under subrule (11) requires standard clauses may be accepted by the registrar if
(a) no standard clauses are appropriate;
(b) the wording of the order conforms as much as possible to the closest applicable standard clause; and
(c) an explanatory note (Form 70V) is filed with the proposed order setting out the reasons for using the non-standard wording.
If written reasons for an order are given, a copy of the reasons shall be placed on the court file.
Recalculation and enforcement information form
A recalculation and enforcement information form (Form 70W), completed by one or both parties, must be provided to the court with a proposed order if the order
(a) grants support under the Divorce Act (Canada), The Family Maintenance Act or The Child and Family Services Act; or
(b) grants support under any other legislation and orders payments to be enforced through the designated officer under Part VI of The Family Maintenance Act.
M.R. 151/2002; 18/2010; 42/2020
70.31(15.1) [Repealed]
Copy of order given to designated officer
The registrar shall give the designated officer under Part VI of The Family Maintenance Act
(a) a copy of any order that grants or affects support or its enforcement by the designated officer; and
(b) if subrule (15) applies, the completed recalculation and enforcement information form (Form 70W).
M.R. 151/2002; 18/2010; 42/2020
Copy of order to child support service
If a party requests recalculation of child support by the child support service on the recalculation and enforcement information form, the registrar must give the child support service
(a) a copy of any order that grants or affects child support; and
(b) the completed recalculation and enforcement information form.
[Repealed]
PREPARING, SIGNING AND SERVING ORDERS
[Repealed]
Endorsement by judge or officer on disposition sheet
The terms of every order shall, at the time the order is pronounced, be endorsed on a disposition sheet, and the disposition sheet shall be signed by the judge or officer pronouncing the order unless
(a) the order is signed by the judge or officer at the time the order is pronounced; or
(b) the circumstances make it impractical to do so.
Any party affected by an order may prepare a draft of the order and shall, unless otherwise ordered by the court, send it to all other parties present at the hearing for approval of its form or content, or both.
Approval of form of order required
Unless otherwise ordered by the court, if a party to a proceeding
(a) is represented by a lawyer, the order shall be sent to the party's lawyer for approval; and
(b) is not represented by a lawyer, the order shall be sent to the party.
Approval of form of order not required
Approval of the form of an order is not required for an order that merely dismisses or adjourns a motion, proceeding or appeal, or allows a party to withdraw a claim for relief, with or without costs.
Subject to subrule (7), every order shall be submitted for the signature of the registrar at the place of hearing unless the judge or officer who pronounced the order
(a) signed it; or
(b) directs that it be signed by the judge or officer who pronounced it.
Signing of order where party not represented by a lawyer
If a party to a proceeding was not represented by a lawyer, the order shall be submitted to the registrar for the signature of the judge or officer who made it.
Signing of order where form of order approved
Where all the parties at the hearing have approved the form of the order, the party who prepared the order shall
(a) file a copy of the order with the approval as to form, of all parties present at the hearing; and
(b) leave the order with the registrar for signing by the registrar, judge or officer, as the case may be.
Signing of order where approval of form not required
Where approval of the form of an order is not required under subrule (5), the party who prepared the order shall leave it with the registrar.
Signing of order where registrar satisfied
Where the order is to be signed by the registrar and the registrar is satisfied that the order is in proper form, the registrar shall sign the order and return a true copy to the party who left it to be signed.
Signing of order where registrar not satisfied
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 order not approved
Where approval as to form 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.
In a case of urgency, the order may be settled and signed by the judge or officer who pronounced it without the approval of any of the parties who were present or represented at the hearing.
Settlement by another judge or officer
Where, after making an order, a judge or officer ceases to hold office, becomes incapacitated, or for any reason unavailable, the order may be settled and signed,
(a) where made by a judge, by another judge; and
(b) where made by an officer, by another officer or a judge.
The original copy of every order shall be filed immediately after it has been signed.
Distribution of divorce judgment
Upon the signing of a divorce judgment, the registrar shall immediately mail a copy of it to each party, unless otherwise ordered by the judge.
Service of order for other relief
A party who obtains an order granting relief other than a divorce shall, within 20 days after the date the order is signed, serve a copy of the order on the other party at such address as the judge directs.
CHANGES TO ORDERS
Errors or omissions in an order
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, and a copy of the order containing the amendment shall be filed.
Setting aside or suspending an order, etc.
A party who seeks to
(a) set aside or vary an order on the ground of fraud or 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
A party may acknowledge satisfaction of an order by a notice of satisfaction (Form 70Y) signed by the party before a witness, or by the party's lawyer, and the document may be filed in the court office where the order was filed.
Upon filing of a notice of satisfaction under subrule (1), the registrar shall note on the order that notice of satisfaction has been filed.
APPEAL
Where an order of the family division is appealed to the Court of Appeal, the appellant shall immediately file a copy of the notice of appeal in the court office from which the order issued.
VARIATION OF FINAL ORDERS AND FAMILY ARBITRATION AWARDS
Where a final order in a family proceeding or a family arbitration award may be varied, rescinded or suspended, an order to vary, rescind or suspend may be obtained,
(a) where the proceeding was commenced in Manitoba or transferred to the court from another province, by filing a notice of motion to vary (Form 70H);
(b) where the proceeding is to vary, rescind or suspend an order made under the Divorce Act (Canada) by a court in another province, by filing a notice of application to vary (Form 70G); and
(c) in the case of a family arbitration award, by filing a notice of motion to vary a family arbitration award (Form 70H.2).
Every motion or application under subrule (1) except a motion or application referred to in subrule (5) shall be supported by an affidavit stating, where applicable,
(a) the current marital or relationship status of the parties;
(b) the habitual residence of the parties and the children of the marriage or relationship;
(c) particulars of current arrangements respecting custody and access or parenting time, decision-making responsibility and contact and particulars of any proposed change;
(d) particulars of current support arrangements and particulars of any proposed change;
(e) the amount of any support arrears; and
(f) particulars of any change in circumstance of the parties or the children since the date any prior order was made.
M.R. 151/2002; 42/2020; 7/2021
Affidavit made on information and belief
Subrule 39.01(4) and not subrule 4.07(2) applies to an affidavit made in support of a motion or application under subrule (1).
Affidavit re spousal or common-law partner support variation
If the motion or application under subrule (1) is for an order to vary, rescind or suspend spousal or common-law partner support, in addition to the requirements of subrule (2), the affidavit shall include
(a) the date of the last spousal or common-law partner support order or family arbitration award with a copy of that order or award attached to the affidavit;
(b) particulars of current support arrangements and particulars of any proposed change;
(c) particulars of any change in circumstances since the date the support order or family arbitration award was made;
(d) the financial circumstances of the parties when the support order or family arbitration award was made, with copies of any financial statements filed by the parties in relation to that order or award;
(e) the total income of the applicant in each year for which the variation, rescission or suspension of support is requested, evidenced by copies of income tax returns and other relevant documentation;
(f) if the applicant is presently unemployed, the length of and reason for the unemployment and the particulars of any efforts to gain employment;
(g) particulars of any expenses the applicant shares with another person;
(h) the current financial circumstances of the applicant with any financial information required by subrule (6);
(i) the amount of any support arrears, and if the support was or is payable through a provincial or territorial maintenance enforcement program, with a payment record from the applicable program as to the amount of arrears under the support order;
(i.1) if the applicant is seeking the suspension of enforcement of a maintenance order, details of the outcome of the applicant's request for an administrative suspension of the maintenance order under section 61.1.1 of The Family Maintenance Act; and
(j) if the applicant is in receipt of money from any source, documentation to verify the amount and particulars.
Affidavit re child support variation
A motion or application under subrule (1) for an order to vary, rescind or suspend child support shall be supported by an affidavit containing the following information and documents, where applicable:
(a) the date of the last order, family arbitration award or decision respecting child support, with a copy of that document attached to the affidavit;
(a.1) the date of the last recalculated child support order and the date on which the recalculated child support amount became payable, or would have become payable but for the filing of the notice of motion to vary, with a copy of that order attached to the affidavit;
(b) the ordinary residence of the parties and of the children for whom support is sought;
(c) particulars of current arrangements respecting custody and access or parenting time, decision-making responsibility and contact;
(d) particulars of current support arrangements and particulars of any proposed change;
(e) particulars of any change in circumstance since the date the support order, family arbitration award or decision was made, unless,
(i) in the case of an order under the Divorce Act (Canada), the order was made before May 1, 1997, or
(ii) in the case of an order under The Family Maintenance Act, the order was made before June 1, 1998;
(f) the financial circumstances of the parties when the support order, family arbitration award or decision was made, with copies of any financial statements filed by the parties in relation to that order, unless,
(i) in the case of an order under the Divorce Act (Canada), the order was made before May 1, 1997, or
(ii) in the case of an order made under The Family Maintenance Act, the order was made before June 1, 1998;
(g) any financial information required by subrule (6);
(h) the amount of arrears under any prior support orders, and if the support was or is payable through a court, with a payment record from the applicable provincial maintenance enforcement office as to the amount of arrears under the support order attached to the affidavit;
(h.1) if the applicant is seeking the suspension of enforcement of a maintenance order, details of the outcome of the applicant's request for an administrative suspension of the maintenance order under section 61.1.1 of The Family Maintenance Act;
(i) where the applicant seeks remission of arrears, documentation attached to the affidavit, including tax returns, evidencing the applicant's income in each year in which the remission is sought.
M.R. 151/2002; 92/2005; 42/2020; 7/2021
Financial information required
Rule 70.05 applies with necessary changes to the financial information required to be filed with a motion or application to vary, rescind or suspend support.
Where a respondent who resides in Manitoba or outside Canada wishes to oppose an application or motion to vary, the respondent must, within the time period prescribed under Rule 18 for filing and serving a Statement of Defence, file and serve the following documents at the same time
(a) a notice of opposition to variation (Form 70H.1);
(b) a responding affidavit; and
(c) Parts 1, 2, 3 and 4 of Form 70D (financial statement), if a party is seeking to vary, rescind or suspend support.
M.R. 170/2018; 109/2019; 7/2021
Opposition to variation if respondent in another province or territory
70.37(6.1.1) If a respondent who habitually resides in a different province or territory wishes to oppose an application or motion to vary a parenting order or support order, the respondent must take one of the following actions, as applicable, within 40 days after being served with the application or motion:
(a) if the motion is made under The Family Maintenance Act, file and serve a notice of opposition to variation (Form 70H.1);
(b) if the application or motion is made under clause 17(1)(a) of the Divorce Act (Canada) for a variation order in respect of a support order,
(i) request that the application or motion be converted into an application under section 18.1 of the Divorce Act (Canada) (Inter-jurisdictional support proceedings between provinces), or
(ii) file and serve a notice of opposition to variation (Form 70H.1);
(c) if the application or motion is made under clause 17(1)(b) of the Divorce Act (Canada) for a variation order in respect of a parenting order, file and serve a notice of opposition to variation (Form 70H.1);
(d) if the application or motion is made under clauses 17(1)(a) and (b) of the Divorce Act (Canada) for a variation order in respect of a support order and a parenting order,
(i) request that the application or motion under clause 17(1)(a) be converted into an application under section 18.1 of the Divorce Act (Canada) (Inter-jurisdictional support proceedings between provinces) and file and serve a notice of opposition to variation (Form 70H.1) in relation to the application or motion under clause 17(1)(b), or
(ii) file and serve a notice of opposition to variation (70HForm.1) in relation to the entire application or motion.
Contents of responding affidavit
Where a motion or application is to vary, rescind or suspend support, the responding affidavit must contain the information set out in subrule 70.07(8), where applicable.
Provisions re default on variation
If a respondent fails to file a notice of opposition to variation within the time period set out in subrule (6.1), then rule 70.11 to 70.12.1 and subrule 70.14(1) apply, with necessary changes.
Automatic conversion to inter-jurisdictional application
If
(a) an application or motion is made under clause 17(1)(a) of the Divorce Act (Canada) for a variation order in respect of a support order and a variation order in respect of a parenting order is not sought in that application or motion; and
(b) the respondent habitually resides in a different province or territory and has, within 40 days after being served with the application or motion, made a request for the application or motion to be converted into an application under section 18.1 of the Divorce Act (Canada) (Inter-jurisdictional support proceedings between provinces);
the court must direct that
(c) the application or motion be converted into an application under section 18.1 of the Divorce Act (Canada); and
(d) a copy of the application or motion and the evidence in support of it be sent to the designated authority of Manitoba.
Default process for variation if respondent in another province or territory
If
(a) an application or motion is made under clause 17(1)(a) of the Divorce Act (Canada) for a variation order in respect of a support order — whether or not a variation order in respect of a parenting order is also sought in that application or motion; and
(b) the respondent habitually resides in a different province or territory and has not, within 40 days after being served with the application or motion,
(i) made a request for the application or motion to be converted into an application under section 18.1 of the Divorce Act (Canada) (Inter-jurisdictional support proceedings between provinces), or
(ii) filed a notice of opposition and all documents required under subrules (6.1) and (6.2);
the application or motion must proceed in accordance with subrule (6.3).
The judge determining an application or motion under subrule (6.5) must proceed in accordance with section 18.3 of the Divorce Act (Canada).
Process for support and parenting order variation if conversion request made
If
(a) an application or motion is made under clauses 17(1)(a) and (b) of the Divorce Act (Canada) for a variation order in respect of a support order and a parenting order; and
(b) the responding party habitually resides in a different province or territory and has, within 40 days after being served with the application or motion, made a request for the variation of the support order to be converted into an application under section 18.1 of the Divorce Act (Canada) (Inter-jurisdictional support proceedings between provinces);
the application or motion seeking variation of the support order must first proceed to a judge to determine whether it should be converted into an application under section 18.1 of the Divorce Act (Canada) before dealing with the rest of the application or motion.
The registrar must inform a party when their application or motion has been converted into an application under section 18.1 of the Divorce Act (Canada).
70.37(7) to (10) [Repealed]
Rule 70.09 (provision of financial information and sanctions) applies with necessary changes to proceedings under this rule.
Original pleadings to be filed
Before the hearing of an application under clause (1)(b), where the order sought to be varied, rescinded or suspended is granted in a divorce proceeding by a court of another province, copies of the original divorce pleadings and all corollary relief orders shall be filed with the court.
A notice of motion to vary, a notice of application to vary and a notice of opposition to variation must be served in the same manner as a petition under rule 70.06, unless otherwise ordered by the court.
Where, under this rule, the court varies, rescinds or suspends an order referred to in clause (1)(b), the registrar shall forward a certified copy of the variation order to the court which made the original order, and to any other court which has varied the original order.
[Repealed]
M.R. 151/2002; 170/2018; 7/2021
[Repealed]
APPLICATIONS UNDER SECTION 18.1 OR 19 OF THE DIVORCE ACT (CANADA)
Applications under section 18.1 of Divorce Act by Manitoba residents
An application under section 18.1 of the Divorce Act (Canada) to obtain, vary, rescind or suspend a support order by a former spouse who resides in Manitoba must be
(a) made on a form approved by the designated authority of Manitoba and include all information and documents specified on that form; and
(b) submitted to the designated authority of Manitoba.
Application forwarded by designated authority to court
After reviewing the application and ensuring that it is complete, the designated authority of Manitoba must
(a) send the application to the designated authority of the province or territory in which the applicant believes the respondent is habitually resident; and
(b) forward a copy of the application to the registrar.
The registrar must file a copy of the application on the court file, if one exists, or if there is no existing court file, open a file and file a copy of the application on it.
Applications under section 18.1 or 19 of Divorce Act from outside Manitoba
An application under section 18.1 or 19 of the Divorce Act (Canada) to obtain, vary, rescind or suspend a support order that is made by a resident of another province or territory or a designated jurisdiction and received by the designated authority of Manitoba must
(a) be accompanied by
(i) a copy of the divorce judgment, if the applicant is seeking a support order and the divorce was granted by a court in another province or territory without a support order being made, or
(ii) a copy of the divorce judgment and all corollary relief orders, if the application seeks to vary, rescind or suspend a support order made by a court in another province or territory in a divorce proceeding or in a corollary relief proceeding; and
(b) be filed by the designated authority of Manitoba with the court and accompanied by a notice of hearing (Form 70Z) and any required supporting documents prepared by the designated authority.
When the court receives an application package under subsection (1) from the designated authority of Manitoba, the registrar must arrange for the respondent to be served with the following documents personally or in accordance with subrule 16.03(2) and (3):
(a) a copy of the application;
(b) the notice of hearing (Form 70Z);
(c) any required supporting documents provided by the designated authority of Manitoba.
An order made by the court in relation to an application under subsection (1) must be prepared and filed with the court by the designated authority of Manitoba.
Forwarding order to designated authority of Manitoba
As soon as practicable after the order has been filed, the registrar must forward a certified copy of the order to the designated authority of Manitoba.
Reasons for decision refusing order
If a judge refuses to make a support order or an order varying, rescinding or suspending a support order, the registrar must forward a copy of the judge's reasons for decision to the designated authority of Manitoba.
[Repealed]
[Repealed]
M.R. 151/2002; 98/2015; 170/2018
[Repealed]
ENFORCEMENT PROCEEDINGS UNDER THE FAMILY MAINTENANCE ACT
Rules 53.01 and 53.02 apply, with necessary changes, to the evidence given at an enforcement hearing under section 57 or 59.1 of The Family Maintenance Act.
NOTICE OF CHANGE OF NAME
Filing and serving notice of change of name
If a person changes his or her name after a family proceeding to which he or she is a party has been commenced,
(a) the party shall
(i) file a notice of change of name (Form 70AA) before filing a subsequent document in the proceeding, and
(ii) serve the notice on all parties;
(b) the registrar shall amend the title of proceedings accordingly and provide a copy of the notice to the designated officer under Part VI of The Family Maintenance Act.
Notice by requisition re international child abduction
With respect to a request for return under the Hague Convention on the Civil Aspects of International Child Abduction, the Family Law Section, Legal Services Branch of the Department of Justice, the Central Authority under the Convention, may, by filing a requisition, give notice as contemplated by article 16 of the Convention of
(a) the alleged wrongful removal or retention of a child; and
(b) an intended application for the return of the child.
Once the requisition is filed, the registrar shall open a file in the family division with respect to the matter referred to in the requisition if a file does not already exist.
RULE 71
ASSESSMENT OF LAWYER'S BILL
Table of Contents
71.01Application for assessment
71.02Filing application
71.04Affidavit
71.06No action by lawyer
71.07Applicable rules
71.08Powers of the court
71.09Hearing by a judge
71.10Hearing by a master
71.11Confirmed report is court order
71.12Client's documents
71.13Cost of unnecessary steps
71.14Application of Rule
APPLICATION FOR ASSESSMENT
A lawyer's client may make an application to the court at any time within six months after receiving the lawyer's bill for an assessment of
(a) that bill; or
(b) a bill previously rendered in respect of the same matter;
by filing a notice of application in Form 71A verified by an affidavit made in accordance with rule 71.04.
If the time for filing an application under subrule (1) conflicts with section 53 of The Legal Profession Act, that Act prevails.
FILING APPLICATION
If the lawyer's bill is rendered primarily in connection with a family proceeding, the application shall be filed in the family division.
Subject to subrules (3) and (4), the application shall be made to a master.
If a master is not available at the judicial centre where the notice of application is filed, the application shall be made to a judge.
Exception — re unfair contingency contract
If the application is for a declaration under subsection 55(5) of The Legal Profession Act, the application shall be made to a judge.
The notice of application shall set out
(a) as the hearing date, the date obtained from the registrar; and
(b) as the place of hearing, the judicial centre in which the applicant proposes the application to be heard.
AFFIDAVIT
The affidavit shall
(a) state the date that the lawyer's bill which is to be assessed was received by the applicant;
(b) set out relevant facts to support the grounds on which the applicant is seeking to have the lawyer's bill assessed; and
(c) include copies of all bills received by the applicant that relate to the assessment, attached as exhibits.
The notice of application and affidavit shall be served on the respondent lawyer at least 14 days before the date of the hearing.
NO ACTION BY LAWYER
After being served with a notice of application under rule 71.01 the respondent lawyer shall not commence a proceeding or take a further step in a proceeding relating to the bill that is the subject of the application, until the application is disposed of, except with leave of the court.
PROCEDURE AND POWERS
The following rules apply to the assessment hearing, with necessary changes:
(a) rule 38.08 (hearing by telephone, video conference or other means of communication);
(b) rule 38.12 (dismissal of application for delay).
On hearing an application under this rule, the court has the power to do any one or more of the following:
(a) order the lawyer to deliver a bill to the client;
(b) order the lawyer to provide particulars of a bill already delivered to the client;
(c) specify the time within which a lawyer must comply with clause (a) or (b);
(d) with or without a motion, make an order for security
(i) for payment of the amount which may be found due and owing, or
(ii) for costs;
(e) direct the parties to attend a settlement conference with a judge or master who thereafter must not hear the matter if a settlement is not concluded;
(f) vary or disallow any fee, charge or disbursement included in the lawyer's bill on any ground;
(g) vary or disallow the amount of interest payable on the bill;
(h) award and assess costs in respect of the application;
(i) dismiss the application;
(j) exercise any additional power that is conferred by Rule 55 in relation to the conduct of a reference;
(k) make any other order as is just.
HEARING BY A JUDGE
If the application is heard by a judge, the judge may make
(a) an order setting out the amount, if any, payable by the client, after taking an account of all payments and credits; and
(b) any other order as is just.
HEARING BY A MASTER
If the application is heard by a master, the master shall make a report that
(a) contains his or her findings and conclusions;
(b) sets out the amount, if any, payable by the client, after taking an account of all payments and credits; and
(c) sets out a deemed confirmation date determined in accordance with subrule (2).
The deemed confirmation date shall be a date that is 35 days after the date the report is signed by the master.
A report under subrule (1) has no effect until it is confirmed.
The following rules apply with necessary changes to the procedure to confirm the master's report:
(a) rule 54.08 (entering and serving report);
(b) rule 54.09 (deemed confirmation date);
(c) rule 54.10 (opposing confirmation).
The master's report is deemed to be confirmed as of the deemed confirmation date set out in the report unless before the deemed confirmation date, a motion to oppose confirmation is
(a) made to a judge; and
(b) filed and served on each party who appeared at the assessment hearing.
A judge hearing a motion to oppose confirmation may confirm the report in whole or in part or make such order as is just.
Confirmed report is court order
When the report is confirmed it becomes an order of the court.
CLIENT'S DOCUMENTS
Where
(a) the amount found to be due to the lawyer is paid; or
(b) nothing is found to be due to the lawyer;
the lawyer shall, if required in writing by the client, without delay, deliver to the client all documents in the lawyer's custody or control that belong to the client.
UNNECESSARY STEPS
The court may allow the costs of steps taken by the lawyer that
(a) were in fact unnecessary if the court is of the opinion that the steps were taken because, in the lawyer's judgment, reasonably exercised, the steps were conducive to the interest of the client; or
(b) were not calculated to advance the interest of the client if the steps were taken at the request of the client after being informed by the lawyer that they were unnecessary and not conducive to the client's interests.
APPLICATION OF RULE
This Rule applies to an application for an assessment of a lawyer's bill filed on or after September 1, 2007.
An application for an assessment commenced before September 1, 2007 and not finally disposed of before that date, shall be dealt with in accordance with Rule 71 as it read immediately before that day as though it had not been replaced.
RULE 72
APPOINTMENT OF COMMITTEES PASSING OF ACCOUNTS
Application must name respondent
On an application under section 71 of The Mental Health Act for an order appointing
(a) a committee of property (Form 72A); or
(b) a committee of both property and personal care (Form 72A.1);
the applicant shall name the person for whom the application is made as respondent.
M.R. 146/90; 13/93; 160/99
A committee who is required to provide a bond under section 77 of The Mental Health Act shall file a Committee Bond (Form 72B), an Affidavit of Execution of Bond (Form 72C) and, if the order is silent as to security or if the order requires a surety or sureties, an Affidavit of Justification by Surety or Sureties (Form 72D).
[Repealed]
M.R. 13/93; 160/99
An initial inventory of the respondent's property, which the committee is required to file under subsection 85(1) of The Mental Health Act, shall take the form of an Affidavit of Initial Inventory (Form 72E) to which an Initial Inventory (Form 72F) is attached as Exhibit "A". The initial inventory is to include the property and the debts and liabilities of the incapable person as at the date the committee is appointed.
M.R. 146/90; 160/99
Where a committee elects or is required to bring in and pass his or her accounts of the committeeship to the court, the committee shall file a motion in the proceeding seeking an order approving the accounts of the committee and, where applicable,
(a) approving the compensation to be paid to the committee;
(b) approving the legal fees to be paid to the lawyer acting on behalf of the committee.
M.R. 146/90; 160/99
Supporting affidavit on passing of accounts
A committee filing a notice of motion under subrule (1) shall also file in support an affidavit of the committee stating
(a) the period of the committeeship to which the accounts relate;
(b) the names and last known places of residence of persons, including creditors of the respondent, who have an interest in the property or the affairs of the respondent;
(c) particulars of the accounts of the property as set out in
(i) an Opening Inventory (Form 72G),
(ii) a Statement of Monies Received (Form 72H),
(iii) a Statement of Monies Disbursed (Form 72I),
(iv) a Statement of Assets Sold or Realized and Assets Acquired (Form 72J), and
(v) a Reconciliation and Closing Inventory (Form 72K),
and attached to the affidavit as exhibits;
(d) where compensation to the committee is sought, particulars in respect of the amount of the compensation and the services for which compensation is sought;
(e) where approval of legal fees is sought, particulars of the legal services provided to the committee; and
(f) in the case of a final passing of accounts where the respondent dies during the committeeship, the date of death and proof of appointment of a personal representative.
M.R. 146/90; 160/99
Rule 37 applies to passing of accounts motion
Subject to this Rule, Rule 37 applies to a motion made under subrule (1).
M.R. 146/90
Service of passing of accounts motion
Subject to subrule (6), a committee filing a motion under subrule (1) shall serve the Notice of Motion and the supporting affidavit upon the persons who are served with the order appointing the committee, other than the Public Guardian and Trustee, and upon the persons who provided consents under clause 72(1)(c) of The Mental Health Act.
M.R. 146/90; 13/93; 98/95; 160/99; 163/2016
Manner of service of passing of accounts motion
A committee may effect service under subrule (4) by sending a copy of the documents by regular lettermail in which case service is effective on the fifth day after the documents are mailed.
M.R. 146/90; 50/2001
Service on personal representative
For purposes of subrules (4) and (5), where the respondent dies before the motion is heard, the committee shall serve the personal representative of the deceased respondent, except that where the committee is the personal representative, the committee shall serve the persons who have an interest in the estate.
30 days after service before hearing
The court shall not hear a motion under subrule (1) on a day sooner than the 31st day following the last day on which service is effected under subrule (4) or (5).
M.R. 146/90
Report and Order: where accounts passed
Where the accounts of a committee are passed by the court, the judge or master hearing the motion shall issue a Report and Order (Form 72L) confirming approval of the accounts and, where applicable, ordering the payment of compensation and legal fees in such amounts as the judge or master considers appropriate in the circumstances.
M.R. 146/90
Report and Order: where accounts not passed
Where the accounts of a committee are not passed by the court, the judge or master hearing the motion shall issue a Report and Order (Form 72L) confirming that the accounts are not passed and ordering the committee to serve the Report and Order on such persons as the court indicates in the Report and Order, including the Public Guardian and Trustee, and where a master hears the motion, the master shall send a copy of the Report and Order to the judge who referred the motion to the master.
M.R. 146/90; 163/2016
Legal fees: as set out in lawyer's account
Where a committee on a motion under subrule 72.04(1) seeks approval of the legal fees to be paid to a lawyer acting on behalf of the committee and files with the court a copy of the account of the lawyer, the court may, where the particulars of legal services filed in support of the motion justify payment of legal fees in the amount set out in the account of the lawyer, approve the legal fees in the amount set out in the account.
M.R. 146/90
RULE 73
PAYMENT INTO AND OUT OF COURT
Table of Contents
73.01Definitions
73.02Payment into court
73.03Court order — motion to a judge for payment out
73.04When registrar may pay out without a court order
73.06Payment re security for costs
73.08Payment re Garage Keepers Act
73.09Payment to trustee in bankruptcy
73.10Payment to personal representative of deceased
73.11Payment to child on becoming an adult
73.12Payment to lawyer for a party
73.13Certificate of registrar as to account
DEFINITIONS
The following definitions apply in this Rule.
"report" means a report of a master under rule 54.06. (« rapport »)
"small claims limit" means the $10,000 limit set by section 3 of The Court of King's Bench Small Claims Practices Act, as that amount may be amended from time to time. (« limite en matière de petites créances »)
[For additional historical information, see the note after this Rule.]
PAYMENT INTO COURT
A person who wishes to pay money into court must deliver it to the registrar along with a copy of any order, report, offer to settle or acceptance of an offer to settle under which the money is payable into court.
[For additional historical information, see the note after this Rule.]
Payable to Minister of Finance
When money is paid by cheque, money order or bank draft, it must be payable to the Minister of Finance.
Offer to settle or acceptance of offer
A party who pays money into court under an offer to settle or an acceptance of an offer to settle must immediately serve a notice of payment into court (Form 73A) on every interested party. No reference to the payment or to the notice of payment is to be included in the court file.
PAYMENT OUT OF COURT
When Is a Court Order Required?
General rule: court order required
When money has been paid into court, it may be paid out upon a motion being made to a judge seeking an order for payment out of court.
[For additional historical information, see the note after this Rule.]
A motion is not required if the registrar is authorized to pay the money out under rules 73.04 to 73.08.
A person seeking an order for payment of money out of court under this rule must file the following documents with the motion:
(a) a copy of any report or order determining entitlement to the money;
(b) an affidavit that meets the requirements of subrule (4); and
(c) any consents required from persons referred to in subclause (4)(c)(ii).
The affidavit must state the following:
(a) whether there is a report or previous court order determining who is entitled to the money;
(b) in the case of a report, that the report has been confirmed;
(c) whether, in the case of a report or a previous court order,
(i) the appeal period has expired and no appeal is pending, or
(ii) the appeal period has not expired but all parties affected by the report or order have consented in writing to payment out to the person or persons named in the consent;
(d) whether the person knows of another person with a claim to or interest in the money and, if so, particulars of that claim or interest;
(e) whether the person who paid the money into court or the person to whom it is to be paid is under a disability;
(f) any other evidence necessary to justify an order of payment out.
The consents referred to in subclause (4)(c)(ii) must be filed with the affidavit.
Service of motion, affidavit and consents
The motion, affidavit and any consents under this rule must be served on all interested persons.
Registrar to pay out in accordance with order
When an order for payment out has been made under subrule (1), the registrar must pay the money out to the person entitled to it upon
(a) presentation of proof of the order for payment out; and
(b) the filing of an affidavit stating that the appeal period from the order for payment out has expired and no appeal is pending.
However, payment out must be made even if the appeal period from the order for payment out has not expired, if the order for payment out has dispensed with the requirement to file the affidavit referred to in clause (b).
When garnishment before judgment is set aside
This rule is subject to subrule 46.14(6) (setting aside garnishment).
When Can the Registrar Pay Money Out of Court?
Payment by registrar without a court order
In any of the following cases, the registrar may pay out of court an amount up to the small claims limit without an order of a judge under rule 73.03:
1.
When the parties consent to payment under rule 73.05.
2.
Without the consent of the parties, if
(a) money was paid into court as security for costs and the requirements of rule 73.06 are met;
(b) money was paid into court in garnishment proceedings and the requirements of rule 73.07 are met; or
(c) money was paid into court under The Garage Keepers Act and the requirements of rule 73.08 are met.
[For additional historical information, see the note after this Rule.]
Payment by Registrar When Parties Consent
Payment out if all parties consent
The parties or their lawyers may consent to payment out of court of money, up to the small claims limit, that was paid into court in the following ways:
(a) under an offer to settle or the acceptance of an offer to settle;
(b) as security for costs;
(c) under a garnishing order;
(d) under section 13 of The Garage Keepers Act.
[For additional historical information, see the note after this Rule.]
When there is consent to payment out, a party seeking payment must file the following with the registrar:
(a) written consent from all the parties or their lawyers to the money being immediately paid out to the person or persons specified in the consent;
(b) an affidavit stating
(i) that all parties consent to the payment,
(ii) that neither the party who paid the money into court nor the party to whom it is to be paid is under a disability, and
(iii) that no other person has a claim to or interest in the money.
Upon receiving the required consent and the affidavit, the registrar must pay out, in accordance with the consent, an amount up to the small claims limit, as long as a stop order on the payment has not been made under rule 73.14.
If a party's insurer has paid money into court on the party's behalf and the affidavit sets out the relevant facts, the insurer may give the consent required by clause (2)(a) on the party's behalf and — when the party is entitled to payment out — the money may be paid out to the insurer.
Security for Costs — Payment by Registrar Without Consent
Payment by registrar without consent — security for costs
When money has been paid into court as security for costs and there is no consent to payment out, the registrar may (unless the court orders otherwise) pay out an amount up to the small claims limit to the party entitled to it, if
(a) an affidavit has been filed stating the following:
(i) that the party seeking payment out has obtained a judgment for costs that has not been satisfied,
(ii) that the appeal period for the judgment for costs has expired and no appeal is pending,
(iii) that no other person has a claim to or interest in the money; and
(b) a stop order on the payment has not been made under rule 73.14.
[For additional historical information, see the note after this Rule.]
Garnishment Proceeds — Payment by Registrar Without Consent
Payment by registrar without consent — garnishment proceeds
When a garnishee named in a notice of garnishment issued under rule 60.08 (garnishment after judgment) has paid money into court and there is no consent to payment out, the registrar may (unless the court orders otherwise) pay out an amount up to the small claims limit to the creditor, if
(a) the creditor has filed an affidavit under subrule (2); and
(b) a stop order on the payment has not been made under rule 73.14.
[For additional historical information, see the note after this Rule.]
The creditor's affidavit must state the following:
(a) that the appeal period for the judgment has expired and no appeal is pending;
(b) the amount of the outstanding debt under the judgment given in favour of the creditor;
(c) that the amount the garnishee paid into court is no more than the small claims limit and, in the case of a small claims proceeding, any costs ordered by the small claims court officer or judge;
(d) that at least 10 days have elapsed since
(i) the garnishee made the payment into court, and
(ii) the debtor was served with the notice of garnishment;
(e) with respect to service of the notice of garnishment,
(i) when garnishment is sought by a general creditor, that the notice of garnishment was served on the debtor in accordance with subrule 60.08(6),
(ii) when garnishment is sought by a maintenance creditor under section 13.1 of The Garnishment Act, that the notice of garnishment was served on the garnishee in accordance with subrule 60.08(6.1) and that an extra copy of the notice of garnishment was served on the garnishee to be provided to the debtor in accordance with subrule 60.08(6.2),
(iii) when garnishment is sought to enforce a restitution order, that the notice of garnishment was served on the debtor in accordance with subrule 60.08(6.3), or
(iv) when garnishment is sought to enforce a forfeited recognizance order or an order imposing a fine, that the notice of garnishment was served on the debtor in accordance with subrule 60.08(6.4);
(f) that no other person has a claim to or interest in the money.
Garage Keepers Act — Payment By Registrar Without Consent
This rule applies when the owner of a vehicle has paid money into court under section 13 of The Garage Keepers Act.
[For additional historical information, see the note after this Rule.]
Payment by registrar without consent
When there is no consent to payment of the money out of court, the registrar may (unless the court orders otherwise) pay out an amount up to the small claims limit in accordance with this rule.
The registrar may pay out an amount to the garage keeper if
(a) the garage keeper has filed an affidavit stating the following:
(i) the garage keeper has received notice of payment into court under The Garage Keepers Act,
(ii) the amount paid into court,
(iii) that the garage keeper commenced an action in the court following service of the notice of payment under The Garage Keepers Act and judgment was granted in the garage keeper's favour,
(iv) that the appeal period for the judgment has expired and no appeal is pending,
(v) the amount of the judgment that is outstanding,
(vi) that no other person has a claim to or interest in the money,
(vii) that the portion of the money paid into court that does not exceed the judgment should therefore be paid out to the garage keeper or his or her nominee; and
(b) no stop order on the payment has been made under rule 73.14.
The registrar may pay out an amount to the owner of the vehicle if
(a) the owner has filed an affidavit of service stating that the notice of payment into court required under The Garage Keepers Act has been served on the garage keeper;
(b) the owner has filed an affidavit stating the following:
(i) the amount paid into court,
(ii) that the garage keeper has either
(A) failed to commence an action in the court within 30 days of service of the notice of payment into court under The Garage Keepers Act, or
(B) commenced an action following service of the notice of payment into court, which resulted in the garage keeper being entitled to none or only a portion of the money paid into court, and the appeal period has expired and no appeal is pending,
(iii) that no other person has a claim to or interest in the money,
(iv) that the money not payable to the garage keeper should therefore be paid out to the owner or his or her nominee; and
(c) no stop order on the payment has been made under rule 73.14.
Payment Out to Trustee in Bankruptcy, Insurer and Others
Payment to trustee in bankruptcy
Before the registrar pays money out of court on account of a debtor — whether pursuant to a court order under subrule 73.03(7) or under rules 73.05 to 73.08 — a licensed trustee of the debtor's estate acting under the Bankruptcy and Insolvency Act (Canada) may request the registrar, in writing, to pay out the money to the trustee instead of the debtor.
[For additional historical information, see the note after this Rule.]
The registrar must pay out the money to the trustee if the trustee has filed an affidavit stating the following:
(a) that the trustee is a licensed trustee under the Bankruptcy and Insolvency Act (Canada);
(b) that the debtor is a bankrupt as a result of the debtor having filed an assignment with the official receiver under the Bankruptcy and Insolvency Act (Canada) or because a receiving order has been made against the debtor under that Act;
(c) that the trustee is acting under the Bankruptcy and Insolvency Act (Canada) as trustee of the debtor's property.
Payment to personal representative of deceased
When money is to be paid out of court to a person who has died, the registrar may — whether pursuant to a court order under subrule 73.03(7) or under rules 73.05 to 73.08 — pay out the money to the deceased's personal representative on proof, to the registrar's satisfaction, of
(a) the person's death; and
(b) the authority of the personal representative.
[For additional historical information, see the note after this Rule.]
Payment to child on becoming an adult
When a person is entitled, on reaching the age of 18, to money paid into court, the registrar may — whether pursuant to a court order under subrule 73.03(7) or under rules 73.05 to 73.08 — pay out the money to the person on the filing of an affidavit proving the person's identity and that he or she has reached the age of 18.
[For additional historical information, see the note after this Rule.]
Money paid into court may be paid out to the lawyer for the person entitled to it (unless the court orders otherwise) if a consent of the person is filed stating that the person consents to payment directly to the lawyer. But such a consent is not required when payment is made to a lawyer of record for a person under rule 73.06 (security for costs), rule 73.07 (garnishment) or rule 73.08 (Garage Keepers Act).
[For additional historical information, see the note after this Rule.]
GENERAL PROVISIONS
Registrar's certificate required
Money may be paid out of court only if the registrar has issued a certificate as to the state of the account from which payment is to be made.
[For additional historical information, see the note after this Rule.]
Money paid out of court must include any accrued interest, unless the order or consent for payment out provides otherwise.
In this rule and rule 73.15,"stop order" means an order (Form 73B) directing that money paid into court not be paid out except on notice to the person who obtains the stop order.
[For additional historical information, see the note after this Rule.]
Stop order on motion or application
The court may make a stop order on motion made without notice in a proceeding — or, if no proceeding is pending, on application made without notice — by a person who claims to be entitled to
(a) money paid into court for another person's benefit; or
(b) money that might be paid into court in the future for another person's benefit.
Undertaking to compensate for damages
The person seeking a stop order must (unless the court orders otherwise) undertake to abide by any order concerning damages that the court may make if it ultimately appears that granting the stop order has caused damage to another person for which the person who obtained the stop order ought to compensate the other person.
Authority of judge if stop order
When a stop order has been made, a judge may — on motion by any person including the person who obtained the stop order, and with notice to all interested persons —
(a) order payment out;
(b) adjourn the hearing of the motion pending disposition of a proceeding in which a claim referred to in subrule 73.14(2) has been made; or
(c) make any other order that is just.
Note: Rule 73 was reorganized when it was replaced by M.R. 165/2015. Before that, it had been amended by the following regulations: 150/89; 146/90; 14/94; 42/96; 32/2002; 43/2003; 120/2004; 177/2011.
RULE 74
UNCONTESTED SURROGATE PRACTICE MATTERS
INTRODUCTORY PROVISIONS
The following definitions apply in this Rule and in Rule 75.
"administrator" means, other than an executor, a person appointed by the court to administer the estate of a deceased person, including in the following circumstances:
(a) when the deceased person died without a will;
(b) when the deceased person made a will that did not name an executor;
(c) when the executor, and if applicable, any person named in the will as an alternate executor, has died;
(d) when the executor and, if applicable, any person named in the will as an alternate executor, is unwilling or unable to act as executor. (« administrateur »)
"codicil" means a written addition or change to a will made by the testator. (« codicille »)
"executor" means the person named in a will to administer the estate of the testator. (« exécuteur testamentaire »)
"holograph will" means a will made entirely in the testator's own handwriting that is signed by the testator but that is not witnessed in accordance with the requirements of The Wills Act. (« testament olographe »)
"interested person" means a person who has or may have a financial or proprietary interest in the estate of the deceased, and includes a creditor of the deceased. (« personne intéressée »)
"letters of administration" means an order of the court respecting the estate of a person who died without a will or that is made when the court determines that a will is invalid. (« lettres d'administration »)
"letters of administration with will annexed" means an order of the court respecting the estate of a deceased person when
(a) no executor is named in the will; or
(b) an executor is named in the will but the executor has predeceased the testator or is unable or unwilling to act as executor. (« lettres d'administration sous régime testamentaire »)
"testator" means the person who made a will. (« testateur »)
"will" includes a testament, a codicil, an appointment by will or by writing in the nature of a will in exercise of a power and any other testamentary disposition. (« testament »)
[For additional historical information, see the note after this Rule.]
The definitions set out in subrule (1) respecting the title of a person apply regardless of the gender of the person.
For the purpose of this rule, when a person is required to provide proof of a person's death, it may be proved by
(a) a certificate of death issued by the Director of Vital Statistics under The Vital Statistics Act, or an equivalent official in another jurisdiction;
(b) a certificate of death issued by a practising physician;
(c) a certificate of death issued by a funeral director who is licensed to practise in a Canadian province or territory;
(d) a presumption of death order made under The Presumption of Death and Declaration of Absence Act or an equivalent Act in another jurisdiction; or
(e) such other documentary evidence of death that the court may find acceptable.
PROBATE OR LETTERS OF ADMINISTRATION WITH WILL ANNEXED
General Requirements
Requirements on request for probate
A person requesting probate of a will must file the following:
(a) a request for probate (Form 74A);
(b) the original will, except as permitted under subrule (3);
(c) an inventory and valuation of the property of the deceased (Form 74B);
(d) proof of execution of the will as required under subrule 74.02(4);
(e) proof of death of the deceased;
(f) any security required under rule 74.11;
(g) a renunciation of probate (Form 74N) and affidavit of execution of renunciation (Form 74X), in cases where there is a person with a prior right to act as executor who no longer wishes to act as executor;
(h) any additional materials required under this rule.
[For additional historical information, see the note after this Rule.]
Requirements on request for letters of administration with will annexed
A person requesting letters of administration with will annexed must file the following:
(a) a request for letters of administration with will annexed (Form 74C);
(b) the original will, except as permitted under subrule (3);
(c) an inventory and valuation of the property of the deceased (Form 74B);
(d) proof of execution of the will as required under subrule 74.02(4);
(e) proof of death of the deceased;
(f) a nomination of administrator (Form 74M), or a renunciation of letters of administration with will annexed (Form 74N) that is accompanied by an affidavit of execution of renunciation (Form 74X), from all persons having an equal or superior right of administration;
(g) the security required under rule 74.11;
(h) any additional materials required under this rule.
Request if original will lost or destroyed
A person may request probate or letters of administration with will annexed when the original will was lost or destroyed if the person making the request files
(a) a copy of the original will, if available;
(b) affidavit evidence respecting the loss or destruction of the original; and
(c) consents from all persons who would have a financial or proprietary interest in the estate if the deceased had died without a valid will, unless the court orders otherwise.
Execution of the will must be proved by affidavit of execution (Form 74D) by one of the subscribing witnesses or as directed by the court. The affidavit must not be sworn before another witness to the will.
Additional Requirements
Evidence re interested parties
The court may require the person requesting probate or letters of administration with will annexed to provide evidence of one or more of the following:
(a) the name, age and address of any person named in the will;
(b) the relationship between the testator and any person named in the will;
(c) all persons who may have an interest in the estate if the will is found not to be valid;
(d) service of the will and other specified documents on any persons specified by the court.
Additional proof if testator unable to read or sign will
If the testator was unable to read or sign the will or could only mark it in some manner or required the assistance of another person to sign or mark the will, the affidavit of execution must include the following additional information:
(a) the will was read to the testator before it was marked or signed;
(b) the testator appeared to understand the contents of the will;
(c) the person who assisted the testator in signing or marking the will did so in the presence of the testator;
(d) the person who assisted the testator in signing or marking the will was acting on the request of the testator.
Identification of pages of will
If a will is written on more than one sheet of paper, the court may require further evidence of the execution of the will as it deems necessary, unless each sheet is identified by the signatures or initials of the testator and the subscribing witnesses.
If a will is undated or dated imperfectly, the person requesting probate or letters of administration with will annexed must file affidavit evidence that
(a) establishes the date of execution of the will; or
(b) if evidence of the date of execution of the will cannot be obtained, the will was executed between two dates and that a search has been made and no will made on a later date has been found.
Additional requirements for holograph wills
In the case of a holograph will, the person requesting probate or letters of administration with will annexed must file affidavit evidence that establishes the following:
(a) the will is the last will of the deceased;
(b) the handwriting and the signature in the will are those of the deceased;
(c) the testator was the full age of majority at the time the will was executed;
(d) the testator was of sound mind, memory and understanding at the time of execution of the will;
and the facts which the deponent relies upon to make those assertions.
Additional requirements if deceased under 18 years
If the testator was under 18 years of age when they died, the person requesting probate or letters of administration with will annexed must file affidavit evidence that establishes that the testator is subject to subsection 8(1) of The Wills Act.
Interlineations and Alterations
Interlineations or alterations
Interlineations, alterations, erasures or obliterations in a will that have not been duly attested or initialled are not valid unless it is shown by affidavit of condition (Form 74E) that they existed in the will before its execution or that they have subsequently been rendered valid by republication of the will or by the subsequent execution of a codicil.
Treatment of invalid interlineations or alterations
Interlineations, alterations, erasures or obliterations in a will that have not been duly attested or initialled and that did not exist in the will before its execution or that have not otherwise been rendered valid must not be given effect in the probate or letters of administration with will annexed. The invalidity of such interlineations, alterations, erasures or obliterations must be endorsed on the copy of the will attached to the grant of probate or letters of administration with will annexed and the grant must contain a recital of the interlineations, alterations, erasures or obliterations found to be invalid.
Tearing, burning or other suspicious circumstances
If words in a will that might have been of importance have been erased or obliterated or where the appearance of the will indicates an attempted cancellation by tearing, burning or similar methods, or where any suspicious circumstances exist, probate must not be granted until those matters have been explained to the satisfaction of a judge.
Grants
Void gift to beneficiary endorsed on will
If the provisions in a will for a beneficiary are void because the beneficiary, or the spouse or common-law partner of the beneficiary, witnessed the will, that fact must be endorsed on the will by the registrar and the grant must contain a recital of the fact that the provisions made in the will for a beneficiary are void.
Endorsement under subsection 12(3) of Wills Act
If the court makes an order under subsection 12(3) of The Wills Act validating a bequest or other disposition in a will where the beneficiary, or the spouse or common-law partner of the beneficiary, witnessed the will, the registrar must endorse a note of the order on the grant.
Interpretation — common-law partner
In subrules (14) and (15), "common-law partner of the beneficiary" means
(a) a person who, with the beneficiary, registers a common-law relationship under section 13.1 of The Vital Statistics Act, and who is cohabiting with the beneficiary; or
(b) another person who, not being married to the beneficiary is cohabiting with the beneficiary is a conjugal relationship of some permanence.
If a judge is not prepared to grant probate or letters of administration with will annexed based on the materials submitted under this rule, the judge may require proof to be made in solemn form under Rule 75.
A grant of probate must be in Form 74F. Letters of administration with will annexed must be in Form 74G. Each document must be signed by the registrar and issued under the seal of the court, and a copy of the will must be attached to it.
Miscellaneous Provisions
If a testator made more than one will and competing requests for probate or letters of administration with will annexed are filed, the validity of the wills is to be determined by the court in accordance with Rule 75.
If it is alleged that a person possesses a will, any interested person may apply for an order to bring in will (Form 74H) that requires the person alleged to possess the will to either file the will with the registrar or file an affidavit setting out what knowledge they have regarding the will.
Order when failure to request probate
If an executor fails to request probate, any interested person may apply for an order to accept or refuse probate (Form 74I) that requires the executor to either accept or refuse probate or establish why letters of administration with will annexed should not be granted to the applicant or another willing person.
DOUBLE PROBATE
A person may request a grant of double probate if
(a) the person was named as an executor but did not join in the initial request for probate because the person had a right to apply at a future date under the terms of the will; or
(b) the executor who made the initial request for probate has died or is unable or unwilling to continue carrying out their duties and the person is named as an alternate executor in the will.
[For additional historical information, see the note after this Rule.]
A request for a grant of double probate must be in Form 74J.
Original grant of probate returned
Unless the court orders otherwise, the original grant of probate must be returned to the court along with the request for double probate.
A grant of double probate must be in Form 74K.
ADMINISTRATION
Requirements on request for letters of administration
A person requesting letters of administration must file the following:
(a) a request for letters of administration (Form 74L);
(b) an inventory and valuation of the property of the deceased (Form 74B)
(c) proof of death of the deceased;
(d) a nomination of administrator (Form 74M), or a renunciation of administration (Form 74O) that is accompanied by an affidavit of execution of renunciation (Form 74X), from all persons having an equal or superior right of administration as required under subrule 74.04(2);
(e) the security required under rule 74.11.
[For additional historical information, see the note after this Rule.]
Manitoba residents with an equal or superior right to renounce
Subject to subrule (3), upon a request for administration all adult persons habitually resident in Manitoba with an equal or superior right to the administration must either nominate the person making the request in Form 74M or renounce administration in Form 74O.
Order to accept or refuse administration
If a person having an equal or superior right to administration has not nominated or renounced under subrule (2), any interested person may apply to have an order in Form 74P issued that calls upon those having prior or equal right to accept or refuse administration. If those persons fail to do so, the interested person may file a request for letters of administration.
Form of letters of administration
Letters of administration must be in Form 74Q and must be signed by the registrar and issued under the seal of the court.
ADMINISTRATION OF ESTATE UNADMINISTERED
Request for administration of estate unadministered
If an executor or administrator dies, leaving part of the assets of an estate unadministered, a request may be made for letters of administration of estate unadministered in order to complete the administration of the estate.
[For additional historical information, see the note after this Rule.]
The request for administration of estate unadministered must
(a) be similar in form to a request for letters of administration and include the words "of estate unadministered" after the word "administration";
(b) provide particulars of the following:
(i) the first grant of probate, letters of administration with will annexed or letters of administration,
(ii) the death of the executor or administrator,
(iii) the assets of the estate that remain unadministered due to the death of the executor or administrator,
(iv) the names of all the beneficiaries who still have an interest in the estate; and
(c) specify the grounds on which the claim to the grant is being made.
If the executor of an estate has died intestate and there are no other executors to carry on the administration of the estate or if the administrator with will annexed of an estate has died leaving part of the estate unadministered, a beneficiary under the will may nominate a person who is a Manitoba resident to request a grant of administration of estate unadministered with will annexed, in order to complete the administration of the estate.
The inventory for a request for administration of estate unadministered must contain only the unadministered property, with values as of the date of request.
Unless the court orders otherwise, the original grant of probate, letters of administration with will annexed or letters of administration must be returned to the court along with a request for administration of an estate unadministered.
RESEALING FOREIGN GRANTS AND LETTERS OF ADMINISTRATION AND ANCILLARY GRANTS
Request for resealing of foreign grant of probate
A person requesting the resealing of a foreign grant of probate by a court having jurisdiction outside Manitoba referred to in section 50 of The Court of King's Bench Surrogate Practice Act must file the following:
(a) a request for resealing of foreign grant of probate (Form 74R);
(b) an inventory and valuation on request for resealing (Form 74S);
(c) proof of execution of the will as required under subrule 74.02(4), if the inventory and valuation discloses immoveable property in Manitoba;
(d) two certified copies of the grant of probate under seal of the court that granted it, or a notarial copy of the original grant of probate and one certified copy under seal of the court that granted it;
(e) such additional or other material as the court may direct.
[For additional historical information, see the note after this Rule.]
Request for resealing of administration with will annexed
A person requesting the resealing of foreign letters of administration with will annexed by a court having jurisdiction outside of Manitoba referred to in section 50 of The Court of King's Bench Surrogate Practice Act must file the following:
(a) a request for resealing of foreign letters of administration with will annexed (Form 74T);
(b) an inventory and valuation on request for resealing (Form 74S);
(c) proof of execution of the will as required under subrule 74.02(4), if the inventory and valuation discloses immoveable property in Manitoba;
(d) two certified copies of the grant of letters of administration with will annexed under seal of the court that granted it, or a notarial copy and one certified copy under seal of the court that granted it;
(e) the security required by subsections 25(1) to (8) of The Court of King's Bench Surrogate Practice Act;
(f) such additional or other material as the court may direct.
Request for resealing letters of administration
A person requesting the resealing of foreign letters of administration by a court having jurisdiction outside of Manitoba referred to in section 50 of The Court of King's Bench Surrogate Practice Act must file the following:
(a) a request for resealing of foreign letters of administration (Form 74U);
(b) an inventory and valuation on request for resealing (Form 74S);
(c) two certified copies of the letters of administration under seal of the court that granted it, or a notarial copy of and one certified copy under seal of the court that granted it;
(d) the security required by subsections 25(1) to (8) of The Court of King's Bench Surrogate Practice Act;
(e) such additional or other material as the court may direct.
The evidence of resealing foreign grants or letters as described in subrules (1), (2) and (3) is the same as required upon a request for grants of probate or letters of administration with will annexed or letters of administration, except that only assets of the deceased in Manitoba need be shown and the grant or letters sought to be resealed may be accepted as proof
(a) of the death of the testator;
(b) in cases of testacy, of the proper execution of the will and that it is the last will of the deceased, provided no immoveable property is shown in the inventory; and
(c) in cases of intestacy, that the deceased left no will.
ANCILLARY GRANTS
A person must make an application to a judge for an ancillary grant in relation to an order issued by a court having jurisdiction outside Manitoba that is not referred to in section 50 of The Court of King's Bench Surrogate Practice Act.
[For additional historical information, see the note after this Rule.]
An application for an ancillary grant must comply with the applicable requirements for resealing under rule 74.06, with such modifications as the judge considers appropriate.
REQUEST FOR WILL OR INFORMATION
A beneficiary named in a will is entitled to receive a copy of the grant of probate or letters of administration with will annexed from the executor or administrator within 21 days of sending a written request to the executor or administrator.
[For additional historical information, see the note after this Rule.]
Request for additional information
Any interested person who requires information about
(a) the assets of a deceased; or
(b) a specific asset of the deceased;
beyond what is disclosed in the inventory and valuation (Form 74B or Form 74S) may provide a written request to the executor or administrator, setting out the interest of the person and the information requested.
Within 21 days after receiving the request, the executor or administrator must provide the person making the request with the requested information in writing or a statement in writing refusing to provide the requested information and the reasons for the refusal.
The court may, on motion, make an order requiring the executor or administrator to provide the person making the request with the requested information within a specified time, unless the court is satisfied that
(a) the executor or administrator has provided a sufficiently detailed inventory of the assets of the deceased or has disclosed sufficient information about the specified asset of the deceased; or
(b) the request is frivolous, vexatious or made for an improper purpose.
NOTICE OF UNDISCLOSED ASSET
Any interested person who believes that the inventory and valuation (Form 74B or Form 74S) fails to disclose an asset belonging to the deceased may provide a written notice to the executor or administrator that
(a) provides particulars of the asset; and
(b) requests the executor or administrator to take control of the asset and prepare a new inventory and valuation of the property of the deceased that includes the asset.
[For additional historical information, see the note after this Rule.]
Within 21 days after receiving the notice, the executor or administrator must provide the interested person with a written response setting out the position of the executor or administrator with respect to the asset in question. The response must contain one of the following statements:
(a) the asset passed by operation of law and does not form part of the deceased's estate;
(b) the asset cannot be located;
(c) the asset did not belong to the deceased at the time of death;
(d) the asset was included in the valuation of the deceased's property but was not specifically mentioned in the inventory;
(e) the executor or administrator was not aware of the asset at the time the inventory was prepared but has now located the asset and undertakes to provide a new inventory and valuation that includes the asset in question.
If the executor or administrator fails to respond within 21 days after receiving the notice, the court may, on motion, order the executor or administrator to respond within a specified time or make such other order or give such direction as the court deems appropriate.
VALUATION OF PROPERTY
The value of property for probate or administration purposes is the fair market value of the property, less the amount of any encumbrances.
[For additional historical information, see the note after this Rule.]
If the court has reason to believe that the property of the deceased exceeds in value the sum stated in a request, it may inquire into the matter in a summary way.
SECURITY
Except when an Act provides otherwise, the security to be given by administrators and foreign executors must be by bond of a guarantee company or personal bond in Form 74V. The bond must be accompanied by an affidavit of execution of bond (Form 74W). Any required sureties must file an affidavit of justification by sureties (Form 74Y).
[For additional historical information, see the note after this Rule.]
Personal attendance of sureties
The court may require the personal attendance of the sureties before it for examination.
Sureties must be Manitoba residents
Personal sureties must be Manitoba residents. A personal surety must provide evidence that their net worth is equal to the amount of the surety's penalty in the bond.
Except when an Act provides otherwise, at least two sureties are required, unless the court directs otherwise.
Registrar and lawyer not sureties
A registrar and the lawyer for the person making a request must not become surety to a bond.
The court may, if it disallows the bond, permit a new bond to be filed. However, the court must not allow the grant to issue unless it is satisfied that adequate security has been furnished.
If a grant of probate or letters of administration has already issued, and it is shown to the satisfaction of the court that the sureties are not sufficient, the court may direct the administrator or foreign executor to furnish further security and, upon default, the court may revoke or suspend the operation of the grant.
An executor or administrator may, at the conclusion of the administration of the estate, seek an order cancelling the security by motion and affidavit evidence without appearance if
(a) all parties whose interest in the estate may be affected by the order cancelling the security have signed final releases in respect to the estate; or
(b) the court has passed the accounts of the estate and the time period for appeal has expired without an appeal being filed.
PASSING OF ACCOUNTS AND COMPENSATION
Application of rule to personal representatives and their lawyers
This rule applies to obtaining court approval of the accounts of personal representatives of estates, including the compensation payable to personal representatives and their lawyers. This process is known as passing of accounts.
[For additional historical information, see the note after this rule and the note after Rule 74.]
Application of rule to other persons
The procedures set out in this rule and the forms prescribed for use also apply, with necessary changes, to passing the accounts of the following persons:
(a) a trustee under The Trustee Act;
(b) an attorney under The Powers of Attorney Act;
(c) a guardian of the estate under The Infants' Estates Act;
(d) any other person required by law or the court to pass their accounts, other than a committee governed by Rule 72.
An application to the court for passing the accounts of a personal representative of an estate, including approval of the compensation payable to the personal representative and the personal representative's lawyer must be made by filing an application to pass accounts in Form 74Z and an affidavit verifying the application and accounts in Form 74AA with the court.
Upon filing the application to pass accounts and affidavit the court may issue an appointment to pass accounts in Form 74BB.
Service of appointment and supporting documents
The personal representative must serve the following documents personally, or by an alternative to personal service in accordance with rule 16.03, on the persons set out in subrule (6):
(a) appointment to pass accounts (Form 74BB);
(b) application to pass accounts (Form 74Z);
(c) affidavit verifying application and accounts (Form 74AA);
(d) notice to beneficiaries (Form 74CC).
The documents referred to in subrule (5) must be served by the personal representative on
(a) a personal representative who did not sign the notice of application;
(b) a lawyer who was retained by a personal representative;
(c) a beneficiary whose interest in the estate may be affected by the accounts; and
(d) a surety.
Serving a minor or incompetent person
If a beneficiary referred to in clause (6)(c) is
(a) a minor, the documents referred to in subrule (5) must be served on
(i) the guardian of his or her estate appointed under The Infants' Estates Act, or
(ii) if no guardian of the estate has been appointed, the Public Guardian and Trustee; or
(b) a mentally incompetent person, the documents referred to in subrule (5) must be served on
(i) the person's committee under The Mental Health Act,
(ii) the person's substitute decision maker for property appointed under The Vulnerable Persons Living with a Mental Disability Act,
(iii) the person's attorney appointed under a valid enduring power of attorney which grants authority to attorney to conduct legal proceedings on their behalf, or
(iv) if there is no person authorized under subclause (i), (ii) or (iii), the Public Guardian and Trustee.
The documents referred to in subrule (5) must be served
(a) at least 14 days before the appointed day on a person in Manitoba;
(b) at least 30 days before the appointed day on a person outside Manitoba but in Canada; and
(c) at least 45 days before the appointed day on a person outside Canada.
The personal representative's accounts must be set out in the affidavit verifying application and accounts, in Form 74AA. The affidavit must include the period covered by the accounts with the following accounts attached and marked as exhibits to the affidavit:
(a) a detailed inventory and valuation of the estate at the opening of the accounting period (Exhibit A) with
(i) Part 1 of Exhibit A, showing how each asset was dealt with, and the current value of or amount realized from each asset, and
(ii) if required, Part 2 of Exhibit A, showing all assets reinvested during the period covered by the passing of accounts, including the date of each reinvestment, with the net gain or loss in value at the end of the period covered by the accounts;
(b) an account of all money received, other than from the realization of original assets or from investments made by the personal representative (Exhibit B);
(c) an account of all disbursements, other than for investments made by the personal representative (Exhibit C);
(d) an account of all payments or transfers to beneficiaries of the estate (Exhibit D);
(e) an account, in debit and credit form, showing the totals of the accounts, all assets remaining on hand and the amount of net gain or loss realized upon investments made by the personal representative (Exhibit E);
(f) copies of all accounts for fees and disbursements issued by a lawyer retained by a personal representative for which approval is sought.
Where income and capital are separate
Where, by the will or an instrument creating a trust estate, income and capital are dealt with separately, the accounts must be divided so as to show receipts, disbursements and distributions, in respect of income and capital, separately.
Book values on interim accounts
Upon an interim passing of accounts, book values, rather than actual values, may be shown.
Compensation for personal representatives and lawyers
Upon a passing of accounts, the court may
(a) fix the compensation payable to a personal representative for the care, pains, trouble and time expended in and about the estate or trust by the personal representative; and
(b) fix the fees and disbursements payable to a lawyer retained by a personal representative.
Criteria re fixing lawyer's fees
In fixing the fees of a lawyer for a personal representative the court is to have regard for the following:
(a) the complexity of the matter;
(b) the nature of the estate assets relative to the value of the estate;
(c) the time spent and nature of the services performed by the lawyer;
(d) the results achieved;
(e) any other matters considered relevant by the court.
A master has jurisdiction to pass the accounts of a personal representative of an estate and may
(a) fix the compensation payable to a personal representative; and
(b) fix the fees and disbursements payable to a lawyer retained by a personal representative.
An order on passing accounts must be in Form 74DD. However, if the accounts are passed before a master pursuant to a judge's order of reference, the master must make a report on the reference, rather than an order. Rule 54.06 applies to the report on the reference.
Note: Rule 74.12 was reorganized when it was replaced by M.R. 160/2016.
WILLS DEPOSITED FOR SAFEKEEPING
No inspection or removal of will in safekeeping
A will that was deposited for safekeeping with the court before the coming into force of this Rule must not, during the lifetime of the testator, be inspected or removed from the office of the registrar except
(a) by the testator acting in person; or
(b) by order of the court, on application by a lawyer acting under the written authority of the testator; and the authority must be verified by the affidavit of the lawyer.
[For additional historical information, see the note after this Rule.]
After the death of the testator, a will deposited for safekeeping with the Court must
(a) be delivered to the executor on their personal application; or
(b) be provided to such other person as the court may direct.
LAWYERS' FEES AND DISBURSEMENTS IN ESTATE MATTERS
Fees and Disbursements of Lawyer for Personal Representative
This rule applies in determining the fees and disbursements payable to a lawyer retained by a personal representative when a request for probate or administration is filed in the court on or after January 1, 2013.
[For additional historical information, see the note after this rule and the note after Rule 74.]
In this rule, fees do not include
(a) disbursements which may be allowed to a lawyer in addition to fees; and
(b) compensation to which a lawyer may be entitled as the personal representative.
Lawyer not to accept excess fees
The lawyer retained by the personal representative must not accept payment for services to the personal representative or to the estate, except in accordance with this rule.
Information for Personal Representatives and Beneficiaries Form
Form served on personal representative and beneficiaries
The lawyer for the personal representative must serve a copy of Information for Personal Representatives and Beneficiaries (Form 74EE) no later than 60 days after the lawyer is retained by the personal representative on
(a) the personal representative; and
(b) each beneficiary whose interest in the estate may be affected by the lawyer's fees or disbursements.
If a beneficiary is a minor, Form 74EE must be served in accordance with clause (21)(a). If a beneficiary is mentally incompetent, Form 74EE must be served in accordance with clause (22)(a).
Fees Based on Total Value of Estate
For the purpose of calculating the fees payable to the lawyer retained by the personal representative, the total value of an estate is the total value of all assets of the estate as set out in the request for probate or administration and any amendments, but the following assets are not included in calculating the total value of the estate:
(a) gifts made by the deceased during their lifetime;
(b) insurance, annuities and pensions not payable to the estate;
(c) property held in joint tenancy where the beneficial interest is intended to pass by right of survivorship;
(d) the death benefit under the Canada Pension Plan.
Fees payable for basic estate services
Subject to subrule (7) (reduced fees for lawyer), the fees payable to the lawyer for the personal representative for basic estate services under subrule (8) for an estate of average complexity are calculated on the basis of the total value of the estate, as set out in subrule (5), as follows:
(a) 3% on the first $100,000, or the portion of that amount, of the total value of the estate, subject to a minimum fee of $1,500;
(b) 1.25% on the next $400,000, or the portion of that amount, of the total value of the estate;
(c) 1% on the next $500,000, or the portion of that amount, of the total value of the estate;
(d) 0.5% on the portions of the estate over $1,000,000.
Reduced fees for basic estate services
If the personal representative is
(a) an individual who is a lawyer and, while acting as the personal representative, also acts as the lawyer for the personal representative;
(b) a trust company; or
(c) the Public Guardian and Trustee;
the lawyer for the personal representative is allowed only 40% of the fees calculated under subrule (6), subject to a minimum fee of $1,500.
Lawyer's Services for Estates of Average Complexity
The fees payable to the lawyer for the personal representative under subrule (6) or (7) are for the following services for an estate of average complexity:
(a) receiving instructions from the personal representative;
(b) giving the personal representative information and advice on matters in connection with the administration of the estate;
(c) reviewing the will or the provisions of The Intestate Succession Act with the personal representative;
(d) receiving information from the personal representative about the following:
(i) the deceased,
(ii) the deceased's death,
(iii) the beneficiaries,
(iv) minors, or
(v) the estate property;
(e) receiving details from the personal representative of the property and debts of the deceased for the purpose of preparing a request for probate or administration, including the following:
(i) the full nature and value of the property of the deceased as at the date of death, including the value of all land and buildings and a summary of outstanding mortgages, leases and any other encumbrances,
(ii) any pensions, annuities, death benefit and any other benefits payable to the estate, and
(iii) any debts owed by the deceased as at the date of death;
(f) preparing necessary documents to obtain probate or administration for the estate, attending on signing documents, filing documents in the court and receiving the probate or administration;
(g) preparing and serving all required notices;
(h) advising and assisting the personal representative in settling debts, including advertising for creditors, if instructed to do so;
(i) preparing declarations of transmission and powers of attorney and related documents for stocks and bonds transferable to the personal representative under the probate or administration, and preparing documents to transfer the stocks and bonds to the persons entitled to them under the will or intestate succession provisions;
(j) preparing transmissions and related documents for land transferable to the personal representative under the probate or administration, and preparing transfers of land and related documents to transfer land to the persons entitled to the land under the will or intestate succession provisions;
(k) advising the personal representative of any trusts required by the will;
(l) advising the personal representative to prepare and file tax returns;
(m) confirming receipt of clearance certificates from the Canada Revenue Agency;
(n) advising the personal representative to provide an accounting to the beneficiaries and a report on the administration of the estate;
(o) requesting approval from the beneficiaries of the compensation for the personal representative and the fees and disbursements of the lawyer for the personal representative;
(p) preparing and obtaining releases, if instructed by the personal representative;
(q) advising and assisting the personal representative in distributing the estate property in accordance with the will or intestate succession provisions.
Fees for Additional Services
In addition to the fees payable for basic estate services under subrule (8), the lawyer for the personal representative is also entitled to receive payment for the following services:
(a) appearances in court, in an amount set by the court;
(b) services related to passing the accounts of the personal representative in court under rule 74.12, in an amount set by the court;
(c) acting on the sale of an estate asset;
(d) finding a purchaser of an estate asset;
(e) assisting the personal representative with estate administration duties, including
(i) keeping and preparing the accounts of the personal representative,
(ii) listing and valuing assets and debts, and
(iii) safekeeping, insuring and disposing of estate assets;
(f) advising the personal representative with respect to an estate of above-average complexity;
(g) advising and assisting the personal representative as to ongoing trust administration matters, including
(i) the personal representative's duties,
(ii) the personal representative's powers of sale, investment and encroachment, and
(iii) the allocation of assets as capital or revenue.
Adult Beneficiaries Consenting to Lawyer's Fees and Disbursements
Adult beneficiaries consenting to lawyer's fees and disbursements
The lawyer for the personal representative is entitled to be paid the fees and disbursements that the lawyer requests, if all beneficiaries whose interests in the estate may be affected by the lawyer's fees or disbursements are adults, and they
(a) have been served with a copy of Information for Personal Representatives and Beneficiaries (Form 74EE);
(b) have been given an itemized statement setting out the lawyer's fees and disbursements, with the fees and disbursements for basic estate services under subrule (8) set out separately from those for additional services under subrule (9), if any; and
(c) consent, in writing, to the fees and disbursements requested by the lawyer.
The personal representative must also consent, in writing, to the fees and disbursements requested by the lawyer.
74.14(10.1) Subrule (10) applies to all fees and disbursements a lawyer requests in relation to basic estate services under subrule (8) and additional services under subrule (9). For greater certainty, subrule (10) applies
(a) to a request for interim fees and disbursements or a request for final fees and disbursements on completion of an estate; and
(b) even if the requested fees for basic estate services exceed the applicable amounts set out in subrule (6) or (7).
Interim Fees Within Allowable Amount
Beneficiaries to be served and personal representative to consent to interim allowable fees
The lawyer for the personal representative is entitled to be paid interim fees and disbursements for legal services that have been completed for the estate, if
(a) the requested interim fees for basic estate services under subrule (8) do not exceed the applicable amounts set out in subrule (6) or (7);
(b) all beneficiaries whose interests in the estate may be affected by the lawyer's fees or disbursements have been served with
(i) a copy of Information for Personal Representatives and Beneficiaries (Form 74EE), and
(ii) an itemized statement setting out the lawyer's fees and disbursements, with the fees and disbursements for basic estate services under subrule (8) set out separately from those for additional services under subrule (9), if any; and
(c) the personal representative consents, in writing, to the interim fees and disbursements requested by the lawyer.
Service on minor or mentally incompetent beneficiary
74.14(11.1) If a beneficiary referred to in clause (11)(b) is
(a) a minor, the documents must be served in accordance with clause (21)(a); or
(b) mentally incompetent, the documents referred to in must be served in accordance with clause (22)(a).
Court Review of Lawyer's Fees and Disbursements
Review of fees and disbursements by court
Unless the fees and disbursements of the lawyer for the personal representative have been consented to under subrule (10), they are subject to review by the court
(a) on a passing of accounts under rule 74.12; or
(b) on an assessment of fees and disbursements referred to in subrule (13).
Assessment of fees and disbursements
A notice of appointment for an assessment of the fees and disbursements payable to the lawyer for the personal representative may be obtained by
(a) the personal representative;
(b) the lawyer for the personal representative; or
(c) a beneficiary whose interest in the estate may be affected by the lawyer's fees or disbursements.
Rule 58 (assessment of costs) applies to an assessment under subrule (13), with necessary changes, except that
(a) the notice of appointment must be served on the persons referred to in subrule (13) at least 30 days before the date of the assessment hearing; and
(b) if a master is available at the centre where the notice of appointment is filed, a master is to assess the fees and disbursements.
Lawyer's statement as to fees and disbursements
The lawyer for the personal representative must, at least 14 days before the date of the assessment hearing, file and serve on the persons referred to in subrule (13) the notice of appointment and
(a) an itemized statement, setting out the lawyer's fees and disbursements with the fees and disbursements for basic estate services under subrule (8) set out separately from those for additional services under subrule (9), if any; and
(b) an affidavit setting out the following:
(i) that the lawyer has served a copy of Information for Personal Representatives and Beneficiaries (Form 74EE), as required by subrule (4), on the personal representative and each beneficiary whose interest in the estate may be affected by the lawyer's fees or disbursements,
(ii) the date of service of Form 74EE on each person referred to in subclause (i),
(iii) the fees and disbursements requested by the lawyer,
(iv) the lawyer's fees requested with respect to basic estate services under subrule (8),
(v) if the requested fees exceed the applicable amounts set out in subrule (6) or (7), the reasons why increased fees should be allowed.
Service on minor or mentally incompetent beneficiary
74.14(15.1) If a beneficiary referred to in clause (13)(c) is
(a) a minor, the documents referred to in subrule (15) must be served in accordance with clause (21)(b); or
(b) mentally incompetent, the documents referred to in subrule (15) must be served in accordance with clause (22)(b).
With respect to assessing the fees payable to the lawyer retained by the personal representative, regard must be given to the following:
(a) the complexity of the matter;
(b) the nature of the estate assets relative to the value of the estate;
(c) the time spent and the nature of the services performed by the lawyer;
(d) the results achieved;
(e) any other matters considered relevant by the court.
Other Fees and Disbursements
Lawyer acting for a person other than personal representative
A lawyer for any person, other than the lawyer for the personal representative, who attends on an assessment of the fees and disbursements of the lawyer for the personal representative, or on a passing of accounts of the personal representative, may be allowed fees and disbursements, in the discretion of the court.
Fees and disbursements in contentious proceedings
In contentious proceedings, a lawyer's fees and disbursements are determined by the court.
Fees and Disbursements Paid from Estate
Payments of fees and disbursements from estate
The court may direct payment of fees and disbursements from the estate generally or by, or from funds of the estate belonging to, any legatee, heir, beneficiary or other person interested in the estate.
Service of Documents
A document required to be served under this rule may be served personally as set out in rule 16.02, or by an alternative to personal service as set out in rule 16.03.
Service on a minor beneficiary
If a beneficiary who is a minor must be served with a document, the following applies:
(a) if the document to be served is Form 74EE (Information for Personal Representatives and Beneficiaries) under subrule (4), or relates to paying interim fees within the allowable amount to the lawyer for the personal representative under subrule (11),
(i) the guardian of the minor's estate appointed under The Infants' Estates Act must be served, or
(ii) if no guardian of the minor's estate has been appointed, the minor's parent or guardian must be served;
(b) if the document to be served relates to an assessment of final fees and disbursements referred to in subrule (13),
(i) the guardian of the minor's estate appointed under The Infants' Estates Act must be served, or
(ii) if no guardian of the minor's estate has been appointed, the Public Guardian and Trustee must be served.
Service on a mentally incompetent beneficiary
If a beneficiary who is mentally incompetent must be served with a document, the following applies:
(a) if the document to be served is Form 74EE (Information for Personal Representatives and Beneficiaries) under subrule (4), or relates to paying interim fees within the allowable amount to the lawyer for the personal representative under subrule (11), the document must be served in accordance with clause 16.02(1)(i) or (j), as the case may be;
(b) if the document to be served relates to an assessment of final fees and disbursements payable to the lawyer for the personal representative referred to in subrule (13),
(i) the person's committee under The Mental Health Act must be served,
(ii) the person's substitute decision maker for property under The Vulnerable Persons Living with a Mental Disability Act must be served, or
(iii) if there is no person authorized under subclause (i) or (ii), the Public Guardian and Trustee must be served.
Note: Rule 74.14 was reorganized when it was replaced by M.R. 134/2012. Before that, it had been amended by the following regulations: 66/2000; 167/2003.
SUMMARY ADMINISTRATION OF SMALL ESTATES
A request for an order under section 47 of The Court of King's Bench Surrogate Practice Act respecting estates with a value under $10,000 must be in Form 74FF.
[For additional historical information, see the note after this Rule.]
An order under section 47 of The Court of King's Bench Surrogate Practice Act must be in Form 74GG.
Unless a judge directs otherwise, the person who is ordered to administer the estate of a deceased under section 47 of The Court of King's Bench Surrogate Practice Act must serve a copy of the order personally or by regular mail within 30 days after the order is made,
(a) if the deceased had a will, on
(i) all beneficiaries of the deceased, and
(ii) the executor, if the person ordered to administer the estate is not the executor named in the will; or
(b) if the deceased died without a will, on all next of kin of the deceased.
MISCELLANEOUS PROVISIONS
Particulars of grants to be sent to the registrar in Winnipeg
The list of grants of probate and letters of administration and any revocations under section 4 of The Court of King's Bench Surrogate Practice Act to be sent by deputy registrars to the registrar must contain the following information for each entry:
(a) the name and habitual residence of the deceased;
(b) the date of death of the deceased;
(c) the nature of the grant and the date is was made;
(d) the name and habitual residence of the executor or administrator;
(e) the amount of the estate as given in the request.
[For additional historical information, see the note after this Rule.]
Note: Rule 74 was reorganized when it was replaced by M.R. 70/2022. Before that, it had been amended by the following regulations: 66/2000; 167/2003; 104/2004; 134/2012; 160/2016; 161/2016; 162/2016.
RULE 75
CONTESTED SURROGATE PRACTICE MATTERS
In this Rule, "contested probate application" means an application for
(a) a grant of probate or letters of administration when the court has declined to make a grant in response to a request under Rule 74;
(b) an order pronouncing on the validity of an alleged will; and
(c) an order revoking a grant of probate or letters of administration.
This Rule applies to surrogate proceedings in solemn form.
A person intending to oppose the issuance of a grant of probate or letters of administration may file a caveat in Form 75A in any judicial centre at any time before the grant is issued.
A caveat expires one year after it is filed. A new caveat may be filed after a previous caveat has expired.
Despite the filing of a caveat, a request for a grant of probate or letters of administration may be made, but no further action may be taken in relation to the request without notice to the party who filed the caveat unless
(a) the caveat has expired; or
(b) the caveat has been vacated or withdrawn.
When a request for probate or letters of administration has been filed, the registrar must serve a notice in Form 75B on the caveator that requires the caveator to make a contested probate application within 30 days after service of the notice. If a contested probate application is not made by that deadline, the registrar must cancel the caveat.
The court may on application order a caveat to be vacated and may award costs against the caveator.
Either before or upon the hearing of an application to vacate a caveat, a judge may give all directions necessary to resolve the matters in dispute, including a direction that the application proceed to a pre-trial conference and thereafter be treated as an action.
Commencing contested probate application
A contested probate application must be commenced by notice of application.
Parties to contested probate application
Each person who is or who claims to be entitled to administer an estate under an unrevoked grant of probate or letters of administration must be named as a party to an application for revocation of the grant.
Parties where validity of will at issue
In the case of an application where the validity of a will is at issue, all persons having an interest in upholding or disputing its validity must be joined as parties, unless the court orders otherwise.
At the first appearance on a contested probate application or at any time thereafter, a judge may do one or more of the following:
(a) add or remove parties;
(b) give directions in Form 75D;
(c) give such further directions as the judge considers necessary or advisable, including that the application proceed to a pre-trial conference and thereafter be treated as an action.
Grant returned to registrar on application for revocation
In an application for the revocation of a grant of probate or letters of administration,
(a) if the application is made by a person to whom the grant was made, that person must deliver the grant to the registrar within seven days after the application was filed; or
(b) if another party to the application has possession or control of the grant, that party must deliver the grant to the registrar within seven days after the party was served with the application.
If a person fails to comply with subrule (1), the registrar may, upon requisition, issue an Order in Form 75C requiring the person to deliver the grant to the registrar.
No actions to be taken under grant
When an application for the revocation of a grant of probate or letters of administration has been made, the person to whom the grant was issued must not act under it without leave of a judge.
Revocation to be noted on grant
When a grant of probate or letters of administration is revoked, the registrar must endorse this fact on the grant along with the date of revocation.
RULE 76
SMALL CLAIMS
Table of Forms
76ASmall Claim
76BDeclaration of Service
76COrder Extending Time for Service
76DDefence
76EDefence and Counterclaim
76E.1Request for Noting Default and Default Decision
76E.2Application to Set Aside the Noting of Default
76E.3Order and Notice of Hearing — Noting of Default
76E.4Certificate of Decision on Default — Decision of Judge
76E.5Certificate of Decision on Default — Decision of Court Officer
76FCertificate of Decision — Claimant not at Hearing
76GCertificate of Decision at Hearing — Decision of Judge
76HCertificate of Decision at Hearing — Decision of Court Officer
76IApplication to Set Aside Decision
76JOrder and Notice of Hearing
76KApplication for Leave to Appeal and Notice of Appeal
76LDiscontinuance of Appeal
76MCertificate of Decision — Leave to Appeal and Appeal Hearing Date
76NCertificate of Decision on Appeal
76OConsent to Act as Litigation Guardian
76PRequest for Appointment of Litigation Guardian
This Rule applies to claims under The Court of King's Bench Small Claims Practices Act.
[For additional historical information, see the note after rule 76.15.]
Words and expressions used in this Rule have the same meaning as they have in The Court of King's Bench Small Claims Practices Act.
[For additional historical information, see the note after rule 76.15.]
The following definitions apply in this Rule.
"Act" means The Court of King's Bench Small Claims Practices Act. (« Loi »)
"registrar" means the registrar of the court and includes a deputy registrar. (« registraire »)
Claims and Defences
A person making a claim under the Act must
(a) file a Small Claim (Form 76A); and
(b) serve a copy of the small claim along with a blank Defence (Form 76D) on each defendant within 30 days after the small claim was filed.
[For additional historical information, see the note after rule 76.15.]
Security for costs by foreign claimants
For the purpose of section 18 of the Act, a person seeking to file a claim who is habitually resident outside Manitoba must pay into court the amount of $150 for security for costs.
After serving the small claim on the defendant, the claimant must file a Declaration of Service (Form 76B) to prove that service on the defendant occurred.
[Repealed]
[For additional historical information, see the note after rule 76.15.]
Within 20 days after being served with a small claim, a defendant who wishes to dispute the claim must file
(a) a Defence (Form 76D); or
(b) a Defence and Counterclaim (Form 76E), if the defendant also wishes to make a claim against the claimant.
[For additional historical information, see the note after rule 76.15.]
The defendant must serve a copy of the defence or the defence and counterclaim on the claimant within 30 days after that document was filed.
After serving the defence or the defence and counterclaim on the claimant, the defendant must file a Declaration of Service (Form