MOTIONS AND APPLICATIONS
RULE 37 MOTIONS--JURISDICTION AND PROCEDURE
NOTICE OF MOTION
37.01 A motion shall be made by a notice of motion (Form 37A) unless the nature of the motion or the circumstances make a notice of motion unnecessary.
JURISDICTION TO HEAR A MOTION
Jurisdiction of Judge
37.02 (1) A judge has jurisdiction to hear any motion in a proceeding.
Jurisdiction; of a Master
(2) A master has jurisdiction to hear any motion in a proceeding, and has all the jurisdiction of a judge in respect of a motion, 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 the liberty of the subject;
(f) under section 4 or 5 of the Judicial Review Procedure Act; or
(g) in an appeal.
Jurisdiction of Registrar
(3) The registrar shall make an order granting the relief sought on a motion for an order on consent, if,
(a) the consent of all parties (including the consent of any party to be added, deleted or substituted) is filed;
(b) the consent states that no party affected by the order is under disability; and
(c) the order sought is for,
(i) amendment of a pleading, notice of application or notice of motion,
(ii) addition, deletion or substitution of a party,
(iii) removal of a solicitor as solicitor of record,
(iv) setting aside the noting of a party in default,
(v) setting aside a default judgment,
(vi) discharge of a certificate of pending litigation,
(vii) security for costs in a specified amount,
(viii) re-attendance of a witness to answer questions on an examination,
(ix) fulfilment of undertakings given on an examination, or
(x) dismissal of a proceeding, with or without costs.
PLACE OF HEARING
Motion Made Without Notice
37.03 (1) A motion properly made without notice may be made in the county in which,
(a) the proceeding was commenced;
(b) any party resides; or
(c) the solicitor's office of the solicitor of record for any party is located.
Motion Made on Notice - Generally
(2) Unless the parties agree otherwise, and subject to subrules (3) and (4), a motion made on notice shall be made,
(a) in the county where the solicitor's office of any responding party is located or where a responding party who acts in person resides; or
(b) where a responding party resides outside Ontario and acts in person, in the county where the proceeding was commenced or where the solicitor's office of the solicitor of record for any party is located.
(3) Where a party has served a notice of motion naming a place of hearing in accordance with subrule (2), any other party may make a motion at the same place and time to the same judge or, if the motion is within a master's jurisdiction, to the same master.
Leave to Hear Motion on Notice at Another Place
(4) On the ground of urgency or hardship or for another sufficient reason, the court may grant leave for the hearing of a motion on notice at a place elsewhere than provided in subrule (2), and the motion for leave may be made in any county.
(5) Where leave is refused on a motion under subrule (4), the court shall fix the costs of any responding party who appeared at the hearing of the motion on a solicitor and client basis, together with travelling expenses, and order the moving party or his or her solicitor to pay those costs and expenses forthwith, unless the court is satisfied that the making of the motion for leave, although unsuccessful, was nevertheless reasonable.
MOTIONS-TO WHOM TO BE MADE
37.04 A motion shall be made to the court if it is within the jurisdiction of a master or registrar and otherwise shall be made to a judge.
HEARING DATE FOR CERTAIN MOTIONS
Where no practice direction
37.05 (1) At any place where no practice direction concerning the scheduling of motion is in effect, a motion may be set down for hearing on any day on which a judge or master is scheduled to hear motions.
Exception, lengthy hearing
(2) If counsel estimates that the hearing of the motion will be more than two hours long, a hearing date shall be obtained from the registrar before the notice of motion is served.
Urgent motion
(3) An urgent motion may be set down for hearing on any day on which a judge or master is scheduled to hear motions, even if counsel estimates that the hearing is likely to be more than two hours long.
CONTENT OF NOTICE
37.06 Every notice of motion (Form 37A) shall,
(a) state the precise relief sought;
(b) state the grounds to be argued, including a reference to any statutory provision or rule to be relied on; and
(c) list the documentary evidence to be used at the hearing of the motion.
SERVICE OF NOTICE
Required as General Rule
37.07 (1) 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 Not Required
(2) 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.
(3) Where the delay necessary to effect service might entail serious consequences, the court may make an interim order without notice.
(4) Unless the court orders or these rules provide otherwise, an order made without notice to a person or party affected by the order shall be served on the person or party, together with a copy of the notice of motion and all affidavits and other documents used at the hearing of the motion.
Where Notice Ought to Have Been Served
(5) Where it appears to the court that the notice of motion ought to have been 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.
Minimum Notice Period
(6) 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.
FILING OF NOTICE OF MOTION
37.08 (1) Where a motion is made on notice, the notice of motion shall be filed with proof of service at least two days before the hearing date in the court office where the motion is to be heard.
(2) Where service of the notice of motion is not required, it shall be filed at or before the hearing.
ABANDONED MOTIONS
37.09 (1) A party who makes a motion may abandon it by delivering a notice of abandonment.
(2) A party who serves a notice of motion and does not file it or appear at the hearing shall be deemed to have abandoned the motion unless the court orders otherwise.
(3) Where a motion is abandoned or is deemed to have been abandoned, a responding party on whom the notice of motion was served is entitled to the costs of the motion forthwith, unless the court orders otherwise.
MATERIAL FOR USE ON MOTIONS
Where Motion Record Required
37.10 (1) Where a motion is made on notice, the moving party shall, unless the court orders otherwise before or at the hearing of the motion, serve a motion record on every other party to the motion and file it, with proof of service, in the court office where the motion is to be heard, at least three days before the hearing, and the court file shall not be placed before the judge or master hearing the motion unless he or she requests it or a party requisitions it.
Contents of Motion Record
(2) The motion record shall contain, in consecutively numbered pages arranged in the following order,
(a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter;
(b) a copy of the notice of motion;
(c) a copy of all affidavits and other material served by any party for use on the motion;
(d) a list of all relevant transcripts of evidence in chronological order, but not necessarily the transcripts themselves; and
(e) a copy of any other material in the court file that is necessary for the hearing of the motion.
Responding Party's Motion Record
(3) Where a motion record is served, a responding party who is of the opinion that it is incomplete may serve on every other party, and file, with proof of service, in the court office where the motion is to be heard, at least two days before the hearing, a responding party's motion record containing, in consecutively numbered pages arranged in the following order,
(a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter; and
(b) a copy of any material to be used by the responding party on the motion and not included in the motion record.
Material may be Filed as Part of Record
(4) A notice of motion and any other material served by a party for use on a motion may be filed, together with proof of service, as part of the party's motion record and need not be filed separately.
Transcript of Evidence
(5) A party who intends to refer to a transcript of evidence at the hearing of a motion shall file a copy of the transcript as provided by rule 34.18.
Factum
(6) A party may serve on every other party and file, with proof of service, in the court office where the motion is to be heard, at least two days before the hearing, a factum consisting of a concise argument stating the facts and law relied on by the party.
HEARING IN ABSENCE OF PUBLIC
37.11 (1) A motion may be heard in the absence of the public where,
(a) the motion is to be heard and determined without oral argument;
(b) because of urgency, it is impractical to have the motion heard in public;
(c) the motion is to be heard by conference telephone under rule 37.12;
(d) the motion is made in the course of a pre-trial conference; or
(e) the motion is before a single judge of an appellate court.
(2) The hearing of all other motions shall be open to the public, except as provided in section 135 of the Courts of Justice Act in which case the presiding judge or officer shall endorse on the notice of motion leave for a hearing in the absence of the public.
37.12 Revoked O. Reg 288/89
HEARING WITHOUT ORAL ARGUMENT
Consent motions, unopposed motions and motions without notice
37.12.1 (1) Where a motion is on consent, unopposed or without notice under subrule 37.07(2), the motion may be heard in writing without the attendance of the parties, unless the court orders otherwise.
(2) Where the motion is on consent, the consent and a draft order shall be filed with the notice of motion.
(3) Where the motion is unopposed, a notice from the responding party stating that the party does not oppose the motion and a draft order shall be filed with the notice of motion.
Opposed Motions in Writing
(4) Where the issues of fact and law are not complex, the moving party may propose in the notice of motion that the motion be heard in writing without the attendance of the parties, in which case,
(a) the motion shall be made on at least fourteen days notice;
(b) the moving party shall serve with the notice of motion and immediately file, with proof of service in the court office where the motion is to be heard, a motion record, a draft order and a factum entitled factum for a motion in writing, setting out the moving party's argument;
(c) the motion may be hard in writing without the attendance of the parties, unless the court orders otherwise.
(5) Within tens days after being served with the moving party's material, the responding party shall serve and file, with proof of service, in the court office where the motion is to be heard,
(a) a consent to the motion;
(b) a notice that the responding party does not oppose the motion;
(c) a motion record, a notice that the responding party agrees to have the motion heard and determined in writing under this rule and a factum entitled factum for a motion in writing, setting out the party's argument; or
(d) a notice that the responding party intends to make oral argument, along with any material intended to be relied upon by the party.
(6) Where the responding party delivers a notice under subrule (5) that the party intends to make oral argument, the moving party may either attend the hearing and make oral argument or not attend and rely on the party's motion record and factum.
DISPOSITION OF MOTION
37.13 (1) On the hearing of a motion, the presiding judge or officer may grant the relief sought or dismiss or adjourn the motion, in whole or in part and with or without terms, and may,
(a) where the proceeding is an action, order that it be placed forthwith, or within a specified time, on a list of cases requiring speedy trial; or
(b) where the proceeding is an application, order that it be heard at such time and place as are just.
(2) A judge who hears a motion may,
(a) in a proper case, order that the motion be converted into a motion for judgment; or
(b) order the trial of an issue, with such directions as are just, and adjourn the motion to be disposed of by the trial judge.
(3) Where on a motion a judge directs the trial of an issue, subrules 38.10(2) and (3) (issue treated as action) apply with necessary modifications.
Exception, motions in estate matters
(4) Clause (2)(b) and subrule (3) do not apply to motions under Rules 74 and 75.
SETTING ASIDE, VARYING OR AMENDING ORDERS
Motion to Set Aside or Vary
37.14 (1) A person who,
(a) is affected by an order obtained on motion without notice;
(b) fails to appear on a motion through accident, mistake or insufficient notice; or
(c) is affected by an order of a registrar,
may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person's attention and names the first available hearing date that is at least three days after service of the notice of motion.
(2) On a motion under subrule (1), the court may set aside or vary the order on such terms as are just.
Order Made by Registrar
(3) A motion under subrule (1) or any other rule to set aside, vary or amend an order of a registrar may be made to a judge or master, at a place in accordance with rule 37.03 (place of hearing of motions).
Order Made by Judge
(4) A motion under subrule (1) or any other rule to set aside, vary or amend an order of a judge may be made,
(a) to the judge who made it, at any place; or
(b) to any other judge, at a place determined in accordance with rule 37.03 (place of hearing of motions).
Order Made by Master
(5) A motion under subrule (1) or any other rule to set aside, vary or amend an order of a master may be made,
(a) to the master who made it, at any place; or
(b) to any other master or to a judge, at a place determined in accordance with rule 37.03 (place of hearing of motions).
Order Made in Court of appeal or Divisional Court
(6) A motion under subrule (1) or any other rule to set aside, vary or amend an order made by a judge or panel of the Court of Appeal or Divisional Court may be made,
(a) where the order was made by a judge, to the judge who made it or any other judge of the court; or
(b) where the order was made by a panel of the court, to the panel that made it or any other panel of the court.
MOTIONS IN A COMPLICATED PROCEEDING OR SERIES OF PROCEEDINGS
37.15 (1) Where a proceeding involves complicated issues or where there are two or more proceedings that involve similar issues, the Chief Justice or Associate Chief Justice of the Superior Court of Justice, a regional senior judge of the Superior Court of Justice or a judge designated by any of them may direct that all motions in the proceeding or proceedings be heard by a particular judge, and rule 37.03 (place of hearing of motions) does not apply to those motions.
(1.1) A judge who is directed to hear all motions under subrule (1) may refer to a master any motion within the jurisdiction of the master under subrule 37.02(2) unless the judge who made the direction under subrule (1) directs otherwise.
(2) A judge who is hears motions pursuant to a direction under subrule (1) shall not preside at the trial of the actions or the hearing of the applications.
PROHIBITING MOTIONS WITHOUT LEAVE
37.16 On motion by any party, a judge or master may by order prohibit another party from making further motions in the proceeding without leave, where the judge or master on the hearing of the motion is satisfied that the other party is attempting to delay or add to the costs of the proceeding or otherwise abuse the process of the court by a multiplicity of frivolous or vexatious motions.
MOTION BEFORE COMMENCEMENT OF PROCEEDING
37.17 In an urgent case, a motion may be made before the commencement of a proceeding on the moving party's undertaking to commence the proceeding forthwith.
RULE 38 APPLICATIONS-JURISDICTION AND PROCEDURE
APPLICATION OF THE RULE
38.01 (1) Rules 38.02 to 38.11 apply to all proceedings commenced by a notice of application under rule 14.05, subject to subrule (2).
(2) Rules 38.02 and rule 38.09 do not apply to applications to the Divisional Court.
APPLICATIONS-TO WHOM TO BE MADE
38.02 An application shall be made to a judge.
PLACE AND DATE OF HEARING
Place
38.03 (1) The applicant shall name in the notice of application as the place of hearing a place in which the court normally sits.
Application under the Commercial Tenancies and Tenant Protection Act
(1.1) An application under the Commercial Tenancies or the Tenant Protection Act, 1997 shall be made in the county in which the premises are located and shall be heard and determined in that county.
Hearing date where no practice direction
(2) At any place where no practice direction concerning the scheduling of applications is in effect, an application may be set down for hearing on any day on which a judge is scheduled to hearing applications.
Exception, lengthy hearing
(3) If counsel estimates that the hearing of the application will be more than two hours long, a hearing date shall be obtained from the registrar before the notice of application is served.
Urgent application
(3.1) An urgent application may be set down for hearing on any day on which a judge is scheduled to hearing applications, even if counsel estimates that the hearing is more likely to be more than two hours long.
Counter-Application
(4) Where a notice of application has been served, and the respondent wishes to make an application against the applicant, or against the applicant and another person, the respondent may make the application at the same place and time to the same judge.
CONTENT OF NOTICE
38.04 Every notice of application (Form 14E, 68A or 73A, 74.44 or 75.5) shall state,
(a) the precise relief sought;
(b) the grounds to be argued, including a reference to any statutory provision or rule to be relied on; and
(c) the documentary evidence to be used at the hearing of the application.
ISSUING OF NOTICE
38.05 A notice of application shall be issued as provided by rule 14.07 before it is served.
SERVICE OF NOTICE
Generally
38.06 (1) The notice of application shall be served on all parties and, where there is uncertainty whether anyone else should be served, the applicant may make a motion without notice to a judge for an order for directions.
Where Notice Ought to Have Been Served
(2) Where it appears to the judge hearing the application that the notice of application ought to have been 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 judgment made on the application be served on the person.
Minimum Notice Period
(3) The notice of application shall be served at least ten days before the date of the hearing of the application, except where the notice is served outside Ontario, in which case it shall be served at least twenty days before the hearing date.
Filing Proof of Service
(4) The notice of application shall be filed with proof of service at least four days before the hearing date in the court office where the application is to be heard.
NOTICE OF APPEARANCE
38.07 (1) A respondent who has been served with a notice of application shall forthwith deliver a notice of appearance (Form 38A).
(2) A respondent who has not delivered a notice of appearance is not entitled to,
(a) receive notice of any step in the application;
(b) receive any further document in the application, unless,
(i) the court orders otherwise, or
(ii) the document is an amended notice of application that changes the relief sought;
(c) file material, examine a witness or cross-examine on an affidavit on the application;
(d) be heard at the hearing of the application, except with leave of the presiding judge.
(3) Despite subrule (2), a party who is served with a notice of application outside Ontario may make a motion under subrule 17.06(1) before delivering a notice of appearance and is entitled to be served with material responding to the motion.
Exception, applications to pass accounts
(4) Subrules (1) and (2) do not apply to a notice of application to pass accounts under Rule 74.
ABANDONED APPLICATIONS
38.08 (1) The applicant may abandon an application by delivering a notice of abandonment.
(2) An applicant who fails to appear at the hearing shall be deemed to have abandoned the application unless the court orders otherwise.
(3) Where an application is abandoned or is deemed to have been abandoned, a respondent on whom the notice of application was served is entitled to the costs of the application, unless the court orders otherwise.
(4) Where a party to an application is under disability, the application may be abandoned by or against that party only with leave of a judge, on notice to,
(a) the Children's Lawyer, unless,
(i) the Public Guardian and Trustee is litigation guardian of the party, or
(ii) a judge orders otherwise; and
(b) where the party under disability is a respondent, the litigation guardian.
MATERIAL FOR USE ON APPLICATION
Application Record and Factum
38.09 (1) The applicant shall,
(a) serve an application record, together with a factum consisting of a concise argument stating the facts and law relied on by the applicant, at least four days before the hearing, on every respondent who has served a notice of appearance; and
(b) file the application record and factum, with proof of service, at least two days before the hearing, in the court office where the application is to be heard.
(2) The applicant's application record shall contain, in consecutively numbered pages arranged in the following order,
(a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter;
(b) a copy of the notice of application;
(c) a copy of all affidavits and other material served by any party for use on the application;
(d) a list of all relevant transcripts of evidence in chronological order, but not necessarily the transcripts themselves; and
(e) a copy of any other material in the court file that is necessary for the hearing of the application.
Respondent's Application Record and Factum
(3) The respondent shall serve on every other party a factum consisting of a concise argument stating the facts and law relied on by the respondent.
(3.1) If of the opinion that the application record is incomplete, the respondent may serve on every other party, at least two days before the hearing, a respondent's application record containing, in consecutively numbered pages arranged in the following order,
(a) a table of contents describing each document, including each exhibit, by its nature and date and in the case of an exhibit, by exhibit number or letter; and
(b) a copy of any material to be used by the respondent on the application and not included in the application record,
and the respondent's factum and application record shall be filed, with proof of service, in the court office where the application is to be heard, not later than 2 p.m. on the day before the hearing.
(3.2) The respondent's factum, and the respondent's application record, if any, shall be filed, with proof of service in the court office where the application is to be heard, at least two days before the hearing.
Dispensing with Record and Factum
(4) A judge, before or at the hearing of the application, may dispense with compliance with this rule in whole or in part.
Material May be Filed as Part of Record
(5) Any material served by a party for use on an application may be filed, together with proof of service, as part of the party's application record and need not be filed separately if the record is filed within the time prescribed for filing the notice or other material.
Transcript of Evidence
(6) A party who intends to refer to a transcript of evidence at the hearing of an application shall file a copy of the transcript as provided by rule 34.18.
Exceptions, applications in estate matters
(7) Subrules (1) to (6) do not apply to applications under Rule 74.
(8) Subrules (1) to (6) apply to applications under Rule 75, but neither the applicant nor the respondent is required to serve a factum.
DISPOSITION OF APPLICATION
38.10 (1) On the hearing of an application the presiding judge may,
(a) grant the relief sought or dismiss or adjourn the application, in whole or in part and with or without terms; or
(b) order that the whole application or any issue proceed to trial and give such directions as are just.
(2) Where a trial of the whole application is directed, the proceeding shall thereafter be treated as an action, subject to the directions in the order directing the trial.
(3) Where a trial of an issue in the application is directed, the order directing the trial may provide that the proceeding be treated as an action in respect of the issue to be tried, subject to any directions in the order, and shall provide that the application be adjourned to be disposed of by the trial judge.
Exception, applications in estate matters
(4) Clause (1)(b) and subrules (2) and (3) do not apply to applications under Rules 74 and 75.
SETTING ASIDE JUDGMENT ON APPLICATION MADE WITHOUT NOTICE
38.11 (1) A person who is affected by a judgment on an application made without notice or who fails to appear at the hearing of an application through accident, mistake or insufficient notice may move to set aside or vary the judgment, by a notice of motion that is served forthwith after the judgment comes to the person's attention and names the first available hearing date that is at least three days after service of the notice of motion.
(2) A motion under subrule (1) may be made,
(a) at any place, to the judge who granted the judgment;
(b) at a place determined in accordance with rule 37.03 (place of hearing of motions), to any other judge;
(c) to the Divisional Court, in the case of a judgment of that court;
(3) On a motion under subrule (1), the judgment may be set aside or varied on such terms as are just.
RULE 39 EVIDENCE ON MOTIONS AND APPLICATIONS
EVIDENCE BY AFFIDAVIT
Generally
39.01 (1) Evidence on a motion or application may be given by affidavit unless a statute or these rules provide otherwise.
Service and Filing
(2) Where a motion or application is made on notice, the affidavits on which the motion or application is founded shall be served with the notice of motion or notice of application and shall be filed with proof of service in the court office where the motion or application is to be heard at least two days before the hearing.
(3) All affidavits to be used at the hearing in opposition to a motion or application or in reply shall be served and filed with proof of service in the court office where the motion or application is to be heard at least two days before the hearing.
Contents - Motions
(4) An affidavit for use on a motion 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.
Contents - Applications
(5) 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
(6) 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.
EVIDENCE BY CROSS-EXAMINATION ON AFFIDAVIT
On a Motion or Application
39.02 (1) A party to a motion or application who has served every affidavit on which the party intends to rely and has completed all examinations under rule 39.03 may cross-examine the deponent of any affidavit served by a party who is adverse in interest on the motion or application.
(2) A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver 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 any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03.
To be Exercised with Reasonable Diligence
(3) 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.
Additional Provisions Applicable to Motions
(4) On a motion other than a motion for summary judgment or a contempt order, a party who cross-examines on an affidavit,
(a) shall, where the party orders a transcript of the examination, purchase and serve a copy on every adverse party on the motion, free of charge; and
(b) is liable for the partial indemnity costs of every adverse party on the motion in respect of the cross-examination, regardless of the outcome of the proceeding, unless the court orders otherwise.
EVIDENCE BY EXAMINATION OF A WITNESS
Before the Heating
39.03 (1) Subject to subrule 39.02(2), a person may be examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript of his or her evidence available for use at the hearing.
(2) 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
(3) 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.
At the Hearing
(4) 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.
Summons to Witness
(5) The attendance of a person to be examined under subrule (3) may be compelled in the same manner as provided in Rule 53 for a witness at a trial.
EVIDENCE BY EXAMINATION FOR DISCOVERY
Adverse Party's Examination
39.04(1) On the hearing of a motion, a party may use in evidence an adverse party's examination for discovery or the examination for discovery of any person examined on behalf or in place of, or in addition to, the adverse party, and rule 31.11 (use of discovery at trial) applies with necessary modifications.
Party's Examination
(2) On the hearing of a motion, a party may not use in evidence the party's own examination for discovery or the examination for discovery of any person examined on behalf or in place of, or in addition to, the party unless the parties consent. (Feb 1, 1996).