6.4: Applications without notice
13.18: Types of affidavit

Case Summary

The Applicant applied by way of a without notice desk Application for a “permanent injunction” directing the Respondents to assist and co-operate with efforts to locate, seize and remove a loader, and an Order allowing the Applicant and any bailiff to seize and remove the loader from any location or the premises of any person.

The Applicant relied on section 5 of the Civil Enforcement Act, RSA 2000, c C-15 (the “Act”) for the relief it sought, however that particular section stated that an Application made under the Act shall not be made on an ex parte basis unless expressly authorized by the Act or by the Rules. Rule 6.4 states that notice of an Application is not required to be served on a Party if the Court is satisfied that no notice is necessary or that serving notice may cause undue prejudice to the Applicant. Justice Feth noted that Applications without notice are extraordinary because they offend the fundamental principle that a Party has the right to be heard in Court before their rights are negatively affected. The instances in which the Court would hear such an Application were limited to instances where (i) the delay associated with notice would result in harm, or (ii) where there was fear that the other Party would act improperly if notice was given.

Feth J. reviewed the evidence and noted that any assertion that the Respondents would try to avoid the Applicant or a bailiff was pure conjecture, and that there was no evidence that delay caused by serving the Respondents would harm the Applicants. Additionally, though Rule 13.18(3) directs that an Affidavit used in support of an Application that disposes of part of all of a claim must be sworn on the basis of personal knowledge of the person swearing the Affidavit, the Affiant in the immediate instance had relied upon hearsay evidence. Ultimately, His Lordship ordered that if the Applicant wished to proceed with the Application, it would need to do so on notice to the Respondent before His Lordship or before another Justice.

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