Civil Procedure Rules of Nova Scotia  
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Part 6 - Motions

Rule 22 - General Provisions for Motions

Scope of Part 6 - Motions
22.01 (1) A motion is an interlocutory step in a proceeding, not an original proceeding (for kinds of original proceedings, see Part 2 - Civil Proceedings).
  (2) Part 6 provides general procedures for all motions (Rule 22 - General Provisions for Motions) and specific procedures for the motions made in the ways listed below:
   
(a)
in chambers (Rule 23 - Chambers Motion);
   
(b)
on appearance day (Rule 24 - Appearance Day Motion);
   
(c)
by special appointment with a judge in person or by teleconference (Rule 25 - Motion by Appointment);
   
(d)
at a meeting or conference (Rule 26 - Conference);
   
(e)
by correspondence (Rule 27 - Motion by Correspondence);
   
(f)
in an emergency (Rule 28 - Emergency Motion);
   
(g)
to a judge who presides or presided over the trial of an action, or hearing of an application (Rule 29 - Motion to Presiding Judge);
   
(h)
to the prothonotary (Rule 30 - Motion to Prothonotary).
  (3) A person may make or respond to a motion, in accordance with this Part 6.
       
Notice
22.02   A party must make a motion on notice unless the party satisfies the judge hearing the motion that it is properly made ex parte.
       
Ex parte motion
22.03 (1) A party may make an ex parte motion in one of the following circumstances:
   
(a)
the order sought does not affect the interests of another person;
   
(b)
the party makes a motion in an ex parte application;
   
(c)
the other party is disentitled to notice under Rule 31 - Notice;
   
(d)
legislation or these Rules permit the motion to be made ex parte;
   
(e)
there are circumstances of sufficient gravity to justify making a motion without notice, for which examples are listed in Rule 22.03(2).
  (2) Each of the following is an example of circumstances of sufficient gravity to justify an ex parte motion:
   
(a)
a child may be harmed if notice is given, and the court’s obligation to secure the best interests of the child requires the court to proceed without notice;
   
(b)
notice will likely lead to violence, and an ex parte order will likely avoid the violence;
   
(c)
notice will likely lead to destruction of evidence or other serious loss of property, and an ex parte order will likely avoid the destruction or loss;
   
(d)
a party facing an emergency has a right to make a motion, but the motion cannot be determined on notice within the time provided by these Rules, even if a judge exercises the power to shorten a notice period, or to direct a speedy method of notice.
       
Continuing ex parte motion on notice
22.04   A judge who hears an ex parte motion may require that the motion continue on notice and give directions for notice to each other party.
       
Full and fair disclosure on an ex parte motion
22.05 (1) The party who makes an ex parte motion must include, in an affidavit filed for the motion, any evidence known to the party, personally or by information, that weighs against granting the order.
  (2) A party who makes a motion for an ex parte order must advise the judge hearing the motion of any fact that may weigh against granting the order.
  (3) A judge who is satisfied that an ex parte order was obtained without full and fair disclosure may set aside the order.
       
Rehearing of ex parte motion
22.06 (1) A party who obtains an ex parte order affecting the rights of a party not disentitled to notice must immediately deliver a copy of the order to the affected party, unless a judge orders otherwise.
  (2) A party who is affected by an ex parte order may require the motion to be heard again in chambers by filing a notice to that effect.
  (3) The judge rehearing the motion may set aside, vary, or continue the order.
       
Notice of rehearing ex parte motion
22.07   The prothonotary must notify the parties of the time, date, and place for rehearing an ex parte motion no more than two days after the day a notice for a rehearing is filed.
       
Affidavits for rehearing
22.08 (1) A party who obtains an ex parte order may only rely on the following affidavits at a rehearing:
   
(a)
the affidavit filed on the ex parte motion;
   
(b)
an affidavit filed by another party;
   
(c)
an affidavit substituting direct evidence for hearsay in the affidavit filed on the ex parte motion;
   
(d)
a rebuttal affidavit limited to new points raised by the other party’s affidavit;
   
(e)
an affidavit allowed by a judge who is satisfied that the party has good reason for not having provided the evidence on the ex parte motion.
  (2) The affidavit substituting direct evidence for hearsay may be filed no later than the deadline for filing a supporting affidavit in Rule 23.11, of Rule 23 - Chambers Motion.
  (3) A judge who rehears a motion may only consider hearsay in the affidavit filed on the ex parte motion that is admissible under an exception recognized by the rules of evidence or is within the further exceptions provided by Rule 22.15.
       
Application of Rule 23 - Chambers Motion on rehearing
22.09   Rules 23.08 to 23.10, the deadlines in Rule 23.11 except the deadlines for a notice of motion and supporting affidavit, Rule 23.12 and Rule 23.15 apply to the rehearing of an ex parte motion.
       
Acting on own motion
22.10   A judge, prothonotary, referee, or commissioner may make an order on their own motion.
       
Motion involving non-parties
22.11 (1) A person who is appointed by a judge to carry out an assignment, such as a sheriff or receiver, may make a motion in connection with the assignment.
  (2) A person who is not a party to a proceeding, and is not appointed in the proceeding, may make a motion in the proceeding only if a judge permits, except the person requires no permission to make a motion to intervene under Rule 35 - Parties.
  (3) A party may move for an order binding a non-party only if legislation or these Rules allow, or a judge permits.
  (4) A non-party who makes a motion, or against whom a motion is made, may be joined as a party to the proceeding in accordance with Rule 35 - Parties.
  (5) In addition to the obligation to give notice to the other party, a party who moves for an order binding a non-party must make the motion on notice to the non-party, unless the party satisfies the judge hearing the motion that it is properly made without notice to the non-party.
  (6) Rules applicable to a party on a motion, including Rules about an ex parte motion, must, as nearly as possible, be applied to a non-party who moves for an order or who is sought to be bound by an order, as if the non-party were a party.
       
Motion by prothonotary
22.12 (1) A prothonotary may make a motion to a judge in any manner the prothonotary sees fit, unless these Rules or legislation provides or a judge directs otherwise.
  (2) The prothonotary may make a motion based on the prothonotary’s representations, unless a judge directs that an affidavit be provided.
  (3) The prothonotary may file a “Notice of Prothonotary’s Motion” signed by the prothonotary to make a motion in chambers, appearance day chambers, or court.
  (4) The notice of prothonotary’s motion must state all of the following:
   
(a)
the time and date when, and the place where, the motion is to be heard;
   
(b)
the contents of the proposed order;
   
(c)
a reference to the legislation, Rule or point of law under which the motion is made;
   
(d)
the prothonotary’s representations of the facts supporting the order.
  (5) The notice may be in Form 22.12.
  (6) Rules applicable to a party on a motion apply to a prothonotary as if the prothonotary were a party, unless these Rules provide or a judge directs otherwise.
       
Motion to commissioner or referee
22.13   A party may make a motion to a commissioner or a referee appointed in the proceeding, and the motion may be made in one of the ways a motion may be made to a judge, except under Rule 23 - Chambers Motion, and Rule 24 - Appearance Day Motion.
       
When appointments required
22.14   A party who wishes to make any of the following motions must obtain an appointment:
   
(a)
a motion in the Family Division, a motion that requires more than a halfhour in chambers, a motion by special appointment, and an emergency motion;
   
(b)
a motion to a judge assigned to a trial or hearing, unless the motion is made at the trial or hearing or the judge permits the motion to be made without an appointment;
   
(c)
a motion to the prothonotary, a referee, or a commissioner concerning the conduct of a hearing by the prothonotary, an inquiry by a referee, or the taking of evidence by the commissioner, unless the motion is made at the hearing or inquiry or when the commission evidence is taken.
       
Rules of evidence on a motion
22.15 (1) The rules of evidence apply to the hearing of a motion, including the affidavits, unless these Rules or legislation provides otherwise.
  (2) Hearsay not excepted from the rule of evidence excluding hearsay may be offered on any of the following motions:
   
(a)
an ex parte motion, if the judge permits;
   
(b)
a motion on which representations of fact, instead of affidavits, are permitted, if the hearsay is restricted to facts that cannot reasonably be contested;
   
(c)
a motion to determine a procedural right;
   
(d)
a motion for an order that affects only the interests of a party who is disentitled to notice or files only a demand of notice, if the judge or the prothonotary hearing the motion permits;
   
(e)
a motion on which a Rule or legislation allows hearsay.
  (3) A party presenting hearsay must establish the source, and the witness’ belief, of the information.
  (4) A judge, prothonotary, commissioner, or referee may act on representations of fact that cannot reasonably be contested.
       
Transferring motion to courtroom
22.16   A party who is notified of a motion to be heard outside a courtroom, or who is present for a motion being heard outside a courtroom, may make a motion to transfer the hearing to, or continue the hearing in, a courtroom.
       
Notify court of failure to deliver notice of motion
22.17   A party who fails to deliver a notice of a motion before a deadline for doing so must immediately notify the court of that fact and whether, when the party appears on the motion, the party will consent to dismissal, request an adjournment, or make a motion for an order excusing compliance with the deadline and permitting the motion to proceed.
       
Attendance, withdrawal, and adjournment
22.18 (1) A party who makes a motion to be heard at a time and date set by the party or appointed by the court at the party’s request must appear at the time and date, and in the place or by the method set for the hearing, unless one of the following apply:
   
(a)
all parties consent to the motion being withdrawn or adjourned, the party making the motion immediately advises the prothonotary and the judge of the agreement, and the party confirms the advice in writing delivered to the prothonotary and the judge’s office;
   
(b)
a judge gives permission to withdraw the motion, or adjourns the hearing of the motion.
  (2) A motion for permission to withdraw or adjourn a motion may be made under Rule 28 - Emergency Motion, or such other Rule in Part 6 - Motion as a judge permits.
  (3) A new time and date may be appointed for a motion adjourned by agreement in the same manner as the time and date of the adjourned motion was appointed or as a judge directs.
       

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