PRESERVATION OF RIGHTS IN PENDING LITIGATION
RULE 40 INTERLOCUTORY INJUNCTION OR MANDATORY ORDER
HOW OBTAINED
40.01 An interlocutory injunction or mandatory order under section 101 or 102 of the Courts of Justice Act may be obtained on motion to a judge by a party to a pending or intended proceeding.
WHERE MOTION MADE WITHOUT NOTICE
Maximum Duration
40.02 (1) An interlocutory injunction or mandatory order may be granted on motion without notice for a period not exceeding ten days.
Extension
(2) Where an interlocutory injunction or mandatory order is granted on a motion without notice, a motion to extend the injunction or mandatory order may be made only on notice to every party affected by the order, unless the judge is satisfied that because a party has been evading service or because there are other exceptional circumstances, the injunction or mandatory order ought to be extended without notice to the party.
(3) An extension may be granted on a motion without notice for a further period not exceeding ten days.
Labour Injunctions Excepted
(4) Subrules (1) to (3) do not apply to a motion for an injunction in a labour dispute under section 102 of the Courts of Justice Act.
UNDERTAKING
40.03 On a motion for an interlocutory injunction or mandatory order, the moving party shall, unless the court orders otherwise, undertake to abide by any order concerning damages that the court may make if it ultimately appears that the granting of the order has caused damage to the responding party for which the moving party ought to compensate the responding party.
FACTUMS REQUIRED
40.04 On a motion under rule 40.01, each party shall serve on every other party to the motion a factum consisting of a concise argument stating the facts and law relied on by the party, and file it, with proof of service, in the court office where the motion is to be heard at least two days before the hearing.
RULE 41 APPOINTMENT OF RECEIVER
DEFINITION
41.01 In rules 41.02 to 41.06, "receiver" means a receiver or receiver and manager.
HOW OBTAINED
41.02 The appointment of a receiver under section 101 of the Courts of Justice Act may be obtained on motion to a judge in a pending or intended proceeding.
FORM OF ORDER
41.03 An order appointing a receiver shall,
(a) name the person appointed or refer that issue in accordance with Rule 54;
(b) specify the amount and terms of the security, if any, to be furnished by the receiver for the proper performance of his or her duties, or refer that issue in accordance with Rule 54;
(c) state whether the receiver is also appointed as manager and, if necessary, define the scope of his or her managerial powers; and
(d) contain such directions and impose such terms as are just.
REFERENCE OF CONDUCT OF RECEIVERSHIP
41.04 An order appointing a receiver may refer the conduct of all or part of the receivership in accordance with Rule 54.
DIRECTIONS
41.05 A receiver may obtain directions at any time on motion to a judge, unless there has been a reference of the conduct of the receivership, in which case the motion shall be made to the referee.
DISCHARGE
41.06 A receiver may be discharged only by the order of a judge.
RULE 42 CERTIFICATE OF PENDING LITIGATION
ISSUING OF CERTIFICATE
Court Order Required
42.01 (1) A certificate of pending litigation (Form 42A) under section 103 of the Courts of Justice Act may be issued by a registrar only under an order of the court.
Claim for Certificate to be in Originating Process
(2) A party who seeks a certificate of pending litigation shall include a claim for it in the originating process or pleading that commences the proceeding, together with a description of the land in question sufficient for registration.
Motion Without Notice
(3) A motion for an order under subrule (1) may be made without notice.
Order to be Served Forthwith
(4) A party who obtains an order under subrule (1) shall forthwith serve it, together with a copy of the notice of motion and all affidavits and other documents used at the hearing of the motion, on all parties against whom an interest in land is claimed in the proceeding.
DISCHARGE OF CERTIFICATE
42.02 (1) An order discharging a certificate of pending litigation under subsection 103(6) of the Courts of Justice Act may be obtained on motion to the court.
Factum
(2) Each party to a motion under subrule (1) shall, unless the motion is made on consent, serve on every other party a factum consisting of a concise statement, without argument, of the facts and law relied on by the party, and file it, with proof of service, in the court office where the motion is to be heard, not later than 2 p.m. on the day before the hearing.
DEFINITION
43.01 In rules 43.02 to 43.04, "property" means personal property and includes a debt.
WHERE AVAILABLE
43.02 Where two or more persons make adverse claims in respect of property against a person who,
(a) claims no beneficial interest in the property, other than a lien for costs, fees or expenses; and
(b) is willing to deposit the property with the court or dispose of it as the court directs,
that person may seek an interpleader order (Form 43A).
HOW OBTAINED
By Application Where no Proceeding Commenced
43.03 (1) Where no proceeding has been commenced in respect of the property in question, a person seeking an interpleader order shall make an application to a judge naming all the claimants as respondents and shall, in the notice of application, require them to attend the hearing to substantiate their claims.
By Motion Where Proceeding has been Commenced
(2) Where a proceeding has been commenced in respect of the property, a person seeking an interpleader order shall make a motion in the proceeding to the court on notice to all the claimants and shall, in the notice of motion, require them to attend the hearing to substantiate their claims.
Affidavit in Support
(3) The application or motion shall be supported by an affidavit identifying the
property and containing the names and addresses of all claimants to the property of whom the deponent has knowledge and stating that the applicant or moving party,
(a) claims no beneficial interest in the property, other than a lien for costs, fees or expenses;
(b) does not collude with any of the claimants; and
(c) is willing to deposit the property with the court or dispose of it as the court directs.
DISPOSITION OF APPLICATION OR MOTION
43.04 (1) On the hearing of an application or motion for an interpleader order, the court may,
(a) order that the applicant or moving party deposit the property with an officer of the court, sell it as the court directs or, in the case of money, pay it into court to await the outcome of a specified proceeding;
(b) declare that, on compliance with an order under clause (a), the liability of the applicant or moving party in respect of the property or its proceeds is extinguished; and
(c) order that the costs of the applicant or moving party be paid out of the property or its proceeds.
(2) In an order under subrule (1), the court may,
(a) order a claimant to be made a party to a proceeding already commenced in substitution for or in addition to the moving party;
(b) order the trial of an issue between the claimants, define the issue to be tried and direct which claimant is to be plaintiff and which defendant;
(c) where the question is one of law and the facts are not in dispute, decide the question without directing the trial of an issue;
(d) on the request of a claimant, determine the rights of the claimants in a summary manner, if, having regard to the value of the property and the nature of the issues in dispute, it seems desirable to do so;
(e) where a claimant fails to attend the hearing, or attends and fails to comply with an order made in the course of the proceeding, make an order declaring that the claimant and all persons claiming under the claimant are forever barred from prosecuting a claim against the applicant or moving party and all persons claiming under the applicant or moving party, without affecting the rights of the claimants as between themselves;
(f) stay any further step in a proceeding in respect of the property; and
(g) make such other order as is just.
(3) Where a motion for an interpleader order is made to a master and raises a genuine issue of fact or of law, the motion shall be adjourned to be heard by a judge.
SHERIFF'S INTERPLEADER
Definition
43.05 (1) In this rule,
"property" means real or personal property and includes a debt; and
"writ of execution" and "execution" include an order of attachment under the Absconding Debtors Act.
Sheriff May Move in Respect of Property Seized
(2) A sheriff may make a motion for an interpleader order (Form 43B) in respect of property or the proceeds of property taken or intended to be taken by the sheriff in the execution of any enforcement process where,
(a) the sheriff has received a claim in respect of the property; and
(b) an execution creditor has given the sheriff notice under rule 60.13 disputing the claim or the execution creditor at whose direction the sheriff took or intended to take the property has not given the notice required by subrule 60.13(2) within the time prescribed by that subrule.
Procedure
(3) The sheriff shall make only one motion in respect of the property.
(4) The motion may be made in any proceeding in which a writ of execution was issued against the debtor, subject to subrules (6) to (7), and shall name as responding parties every claimant and all execution creditors, even though their executions were not issued in the same proceeding.
Sale of Property that is Security for Debt
(5) Where personal property has been seized in execution by a sheriff, and a claimant claims to be entitled to the property as security for a debt, the court may order a sale of the property and direct that the proceeds of sale or an amount sufficient to answer the claim be paid into court pending determination of the claim.
Executions from Different Courts
(6) A sheriff who has an execution issued by the Superior Court of Justice shall make the interpleader motion in that court, even if he or she also has an execution issued by another court, and despite rule 37.03 (place of hearing of motions), the motion shall be heard in the sheriff s county.
(7) A sheriff who has no execution issued by the Superior Court of Justice but has an execution issued by another court shall make an application for an interpleader order to a judge of the Superior Court of Justice, although subrule (2) provides for a motion, and rules 43.01 to 43.04 and subrules (1) to (5) apply with necessary modifications.
RULE 44 INTERIM RECOVERY OF PERSONAL PROPERTY
MOTION FOR INTERIM ORDER
44.01 (1) An interim order under section 101 of the Courts of Justice Act for recovery of possession of personal property may be obtained on motion by the plaintiff, supported by an affidavit setting out,
(a) a description of the property sufficient to make it readily identifiable;
(b) the value of the property;
(c) that the plaintiff is the owner or lawfully entitled to possession of the property;
(d) that the property was unlawfully taken from the possession of the plaintiff or is unlawfully detained by the defendant; and
(e) the facts and circumstances giving rise to the unlawful taking or detention.
(2) The notice of motion shall be served on the defendant unless the court is satisfied that there is reason to believe that the defendant may improperly attempt to prevent recovery of possession of the property or that, for any other sufficient reason, the order should be made without notice.
ORDER TO CONTAIN DESCRIPTION AND VALUE OF PROPERTY
44.02 An interim order for recovery of possession of personal property shall contain a description of the property sufficient to make it readily identifiable and shall state the value of the property.
DISPOSITION OF MOTION
Where Made on Notice
44.03 (1) On a motion for an interim order for recovery of possession of personal property made on notice to the defendant, the court may,
(a) order the plaintiff to pay into court as security twice the value of the property as stated in the order, or such other amount as the court directs, or to give the appropriate sheriff security in such form and amount as the court approves, and direct the sheriff to take the property from the defendant and give it to the plaintiff;
(b) order the defendant to pay into court as security twice the value of the property as stated in the order, or such other amount as the court directs, or to give the plaintiff security in such form and amount as the court approves, and direct that the property remain in the possession of the defendant; or
(c) make such other order as is just.
Where Made Without Notice
(2) On a motion for an interim order for the recovery of possession of personal property made without notice to the defendant, the court may,
(a) order the plaintiff to pay into court as security twice the value of the property as stated in the order, or such other amount as the court directs, or to give the appropriate sheriff security in such form and amount as the court approves, and direct the sheriff to take and detain the property for a period of ten days after service of the interim order on the defendant before giving it to the
plaintiff; or
(b) make such other order as is just.
CONDITION AND FORM OF SECURITY
44.04 (1) Where an interim order for the recovery of possession of personal property requires either party to give security, the condition of the security shall be that the party providing the security will return the property to the opposite party without delay when ordered to do so, and pay any damages and costs the opposite party has sustained by reason of the interim order.
(2) Where the security is by bond, the bond shall be in Form 44A and shall remain in force until the security is released under rule 44.06.
(3) Where the bond is to be given by a person other than an insurer licensed under the Insurance Act to write surety and fidelity insurance, the person giving the bond shall first be approved by the court.
SETTING ASIDE ORDER
44.05 The court on motion may set aside or vary an interim order for the recovery of possession of personal property or stay enforcement of the order.
RELEASE OF SECURITY
44.06 Any security furnished pursuant to an order made under rule 44.03 may be released on the filing of the written consent of the parties or by order of the court.
DUTY OF SHERIFF
44.07 (1) Before proceeding to enforce an interim order for the recovery of possession of personal property, the sheriff shall ascertain that any security required by the order has been given.
(2) The sheriff shall serve the order on the defendant when the property or any part of it is recovered or as soon thereafter as is possible.
(3) Where the sheriff is unable to comply with the order, or it is dangerous to do so, the sheriff may move for directions from the court.
(4) The sheriff shall, without delay after attempting to enforce the order and in any event within ten days after service of the order, report to the plaintiff on what property has been recovered and, where the sheriff has failed to recover possession of all or part of the property, on what property has not been recovered and the reason for his or her failure to recover it.
WHERE DEFENDANT PREVENTS RECOVERY
44.08 Where the sheriff reports that the defendant has prevented the recovery of all or part of the property, the court may make an order,
(a) directing the sheriff to take any other personal property of the defendant, to the value of the property that the sheriff was prevented from recovering, and give it to the plaintiff; and
(b) directing the plaintiff to hold the substituted property until the defendant surrenders to the plaintiff the property that the sheriff was prevented from recovering.
RULE 45 INTERIM PRESERVATION OF PROPERTY
INTERIM ORDER FOR PRESERVATION OR SALE
45.01 (1) The court may make an interim order for the custody or preservation of any property in question in a proceeding or relevant to an issue in a proceeding, and for that purpose may authorize entry on or into any property in the possession of a party or of a person not a party.
(2) Where the property is of a perishable nature or likely to deteriorate or for any other reason ought to be sold, the court may order its sale in such manner and on such terms as are just.
SPECIFIC FUND
45.02 Where the right of a party to a specific fund is in question, the court may order the fund to be paid into court or otherwise secured on such terms as are just.
RECOVERY OF PERSONAL PROPERTY HELD AS SECURITY
45.03 (1) Where in a proceeding a party from whom the recovery of personal property is claimed does not dispute the title of the party making the claim, but claims the right to retain the property as security for a debt, the court may order the party claiming recovery of the property to pay into court or otherwise give security for the debt and such further sum, if any, for interest and costs as the court directs.
(2) The affidavit in support of a motion under subrule (1) shall disclose the
name of every person asserting a claim to possession of the property of whom the party claiming recovery has knowledge and every such person shall be served with notice of the motion.
(3) On compliance with an order under subrule (1), the property shall be given to the party claiming recovery and the money in court or the security shall await the outcome of the proceeding.