6.3: Applications generally
6.4: Applications without notice
6.6: Response and reply to application
6.8: Questioning witness before hearing
13.18: Types of affidavit

Case Summary

The Appellants had previously obtained ex parte Attachment Orders arising from an alleged fraud that were to be reviewed at a scheduled comeback hearing. At the comeback hearing the Chambers Judge excluded some of the tendered evidence and ruled that, without the excluded evidence, the Appellants failed to meet the test for an Attachment Order and set the Order aside.

The Court of Appeal concluded that the Chambers Judge erred in excluding significant parts of the Appellants’ evidence.

Specifically, the Court found that Rule 6.6 (which the Chambers Judge interpreted as precluding an applicant from filing any further evidence if the respondent to an application does not file any evidence) does not preclude the applicant from filing further evidence before the hearing, so long as the further evidence is provided “a reasonable time before the application is to be heard.”

The Appellate Court stated that Rule 6.6 should not be read as restricting the Court’s ability to hear all the relevant evidence. Rule 6.6(2)(b) enables the Applicant to reply to the Respondent’s case, but it does not make a reply mandatory. Furthermore, it does not contain any prohibition on either party filing evidence.

The Court found Rule 6.6(2)(b) does not contemplate a “comeback” hearing respecting an ex parte Order granted under Rule 6.4, which is premised on new evidence being placed on the record for the first time. The Court determined that the comeback hearing is argued de novo and the comeback process falls within Rule 6.3(1) (which applies to applications generally) as opposed to Rule 6.6(2), thereby additional evidence be filed.

The Court also considered issues the Appellants faced in getting the Respondents’ evidence on the record - specifically those in relation to a Notice to Conduct and Examination Under Oath that was issued to a Respondent and subsequently set aside by the Chambers Judge. The Court found that there was no basis on the record for the Chambers Judge to set aside the Rule 6.8 appointment and that, absent an abuse of process, the Appellants were entitled to conduct that examination.

Lastly, the Court found that the Chamber’s Judge made an unreasonable finding by ascribing no weight to evidence rendered admissible by Rule 13.18(1) because it functionally negated the Rule that information and belief evidence can be considered in interlocutory Applications. The Court noted that because the Appellants’ evidence of fraud was completely uncontradicted, there was no reason to substantially disregard the Appellants’ evidence.

View CanLII Details