3.2: How to start an action
6.3: Applications generally

Case Summary

The Alberta Minister of Justice (the “Applicant”) applied ex parte in regular chambers for the restraint of $28,000 in cash that had been obtained in the course of an arrest for a drug offence. The Application was made pursuant to the Victims Restitution and Compensation Payment Act, RSA 2001, c V-3.5 (“VRCPA”) without first filing a commencement pleading, and was supported with an unfiled Affidavit.

Burrows J. had raised the concern that the ex parte Application was not properly before the Court, as no commencement document had been filed. Justice Burrows referred to Rule 3.2(3)(b) which provides that a commencement document is required to be filed for an Action related to an enactment unless that enactment provides a procedure for commencing the Action without a commencement document. The VRCPA provided no such procedure; therefore, Burrows J. held that an Originating Application was required in this case. The Applicant subsequently filed an Originating Application and returned before Burrows J. seeking the Restraint Order.

Justice Burrows noted that complying with Rule 3.2(3)(b) as well as the VRCPA could be “awkward” since an Application under the VRCPA requires the Court to set the date, place and time of a disposal hearing in a Restraint Order. However, Rule 6.3(2)(a) states that an Originating Application in the form set out in Schedule A of the Rules of Court must be used unless the Court otherwise permits. The prescribed form (Form 5) requires the date, time and place of the Application to be set by the Applicant. Burrows J. stated that this apparent inconsistency could be resolved by a Judge’s Fiat if necessary.

His Lordship ultimately held that it was not evident that a Restraint Order was required, and dismissed the Application.

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