The Applicants sought an Order declaring certain transactions void. The Respondents raised two preliminary issues, one being whether the Applicants could rely on the Statute of Elizabeth, 13 Eliz 1, c 5 (“Statute of Elizabeth”) in their Application. After engaging with Rule 6.3, Nixon J. allowed the Applicants to refer to the Statute of Elizabeth.

The Respondents asserted that the Applicants did not plead or refer to the Statue of Elizabeth in their Application. They argued that the Application was therefore deficient and asked the Court to disallow reference to the statute.

Justice Nixon held that in most cases he would have agreed with the Respondents. Rule 6.3(2)(d) states that unless the Court permits otherwise, any reference to a provision of an enactment or Rule relied on must be specified in the Application. However, there were three distinguishing factors before Nixon J. that enabled him to allow the Applicants to reference the Statute of Elizabeth in the Application.

First, at the outset of the hearing, there was a discussion about an adjournment and the Respondents indicated that they did not want to adjourn. This point was important because the Court has discretion to adjourn Applications if evidence on a key point is not clear, to let the parties obtain better evidence. Justice Nixon held that the same requirement applies to relevant provisions of statues under Rule 6.3(2)(d).

Second, the Respondents had advanced notice of the Applications’ intention to rely on the Statute of Elizabeth. In fact, the Applicants had raised the Statute of Elizabeth in a Brief and the Respondents addressed it at length in their own Brief.

Third, the Respondents acknowledged that the Statute of Elizabeth was always raised in conjunction with the Fraudulent Preferences Act, RSA 2000, c F-24 (“FPA”), and the FPA was raised in the Application. Therefore, the Statute of Elizabeth did not come as a surprise to the Respondents.

Lastly, Nixon J. noted that the purpose of Rule 6.3(2), which is discretionary in nature, is to ensure that Respondents understand the case they must meet. However, where the Respondents have received written arguments weeks in advance of a hearing, any concerns about prejudice to the Respondents fade, and any such concerns are best dealt with by way of Costs.