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Civil Lit II Midterm

Law 420

QuestionAnswer
Must all Notices of Application be supported by an Affidavit? Yes
How do you treat and exhibit that is less than 10 pages? Marked and signed by a commissioner and attached to the Affidavit.
How do you treat an exhibit 11 or more pages in length? Marked and signed by a commissioner, but not attached. Must be made available for inspection by opposing party before the hearing and to the court at the hearing.
When can an Affadavits be supported by hearsay? By providing the source, can be used in interlocutory applications or by leave of the court.
What three pieces of information about the deponent must be in the preamble of an affidavit? Name, occupation and address.
The jurat sets out what? Time, place, date and before whom the affidavit was sworn.
WHy must a jurat never be alone on a page? So that there can be no claim that information was added or removed.
How do you alter an affidavit before it is sworn? crossed out with a single line and initialed by the commissioner.
How do you alter an affidavit after it is sworn? crossed out with and single line and initialed by the commissioner, then insert a new jurat or modify the original to read 're-sworn/affirmed"
Affidavits may never contain Argument
What does interlocutory mean? A pre-trial procedure
What are two types of applications that a master can hear but that is a final application Default judgment; Dismissal of a proceeding for want of prosecution.
What does inherent jurisdiction mean? It means the general jurisdiction to control their own process, and the ability to go beyond court rules and statue. It belongs to judges only.
Who can speak to chambers applications? Lawyer, articled student, party to an action.
What time to chambers applications happen? 9:45 AM, but 9:15 in Kamloops.
What does ex parte mean? Without notice.
What occurs on an application's returnable date? The application is heard.
When are holidays counted in time calculation? FOr periods of less than 7 days
What words signal clear days? "at least" or "not less than"
What is a business day? A day on which the court registry is open
What are holidays? Sundays and statutorily defined days
How do you bring an application? You must file and serve a Notice of Aplication in Form 32 as well as a supporting Affidavit and accompanying exhibits referred to and which have not already been filed in the proceeding.
What must the NA contain? Set out the orders sought, factual basis, rule or enactment being relied on or legal argument being relied on, list of affidavits and exhibits, time estimate for hearing, date and time of hearing, place for the hearing, appendix data
How long can an NA be? No more than 10 pages, not including any draft order attached
What must be served with the NA? Filed copy of NA, a filed copy of each affidavit not already served
When must the NA be served? At least 8 business days before the date set for the hearing
Who must respond to the NA? Anyone who wishes to, but it is not necessary.
By when must a party wishing to respond file and served their RA and affidavits? Within 5 business days after service.
What must an App Respondent file and serve? An Application Response, supporting affidavit and exhibits
How many copies must an AR file and serve? On every party one copy, but on the Applicant two copies
What must an AR contain? The AR's position on all orders sought; legal basis for opposition, list of all affidavits and time estimate.
When can an Applicant respond to the AR's Response? By filing and serving on all respondents an affidavit by 4:00PM 1 full business day before the hearing
What does TINRA stand for? Title page; Index; Notice; Response; Affidavits
What is the filing window for an Application Record? Between 9:00AM on the business day no earlier than three business days before the hearing and no later than 4:00PM on the business day that is one full business day before the hearing.
Who makes and files the Record? The Applicant
What must be on the front of the Record? A copy of the NA marked up to show which issues are still at issue
What is the time limit for serving the Record index on each respondent? No later than 4:00PM on the business day that is one full day before the hearing.
Can a party submit any other written argument to the court? Yes, a 'chambers brief' can be filed if the application hearing is estimated to take in excess of 2 hours.
What happens to the Record after the hearing? The Applicant must retrieve it after the hearing or if the application is adjourned more than one business day
If the Application is adjourned the applicant retrieved the record, when must be it returned to the court? Between 9:00AM and 4:00PM on the business day that is one full business day before the new hearing date.
How is a hearing reset after being adjourned generally? Filing and service of a Form 17 Requisition with the new date and time at least 2 business days before the new hearing date.
Do non parties need to consent to a application for a consent order? No, this is not necessary; Taber v Fritz
Can a Respondent change their mind about their response? No, the Response is binding unless an amended response is file; Grewal v Sandhu
What is a chambers hearing? a petition proceeding, a requisition hearing, and application, an appeal from an order, applications for judgment, anything ordered to be proceeded with by affidavit.
What if a party does not appear at a chambers proceeding? The court can, but does not have to, proceed without the party and then require evidence of service.
If a court makes an order in absence of a party, what is true of the order? It must be reconsidered unless the absent party appears to have wilfully delayed or have been in default.
How is evidence given in a chambers proceeding? By affidavit, but the court can order cross examination of a deponent, or order that a deponent be examined by another party. It can also order inquiries and assessments of all supporting evidence.
Where are chambers hearing conducted? In public, unless directed otherwise
If an application is set for a holiday, what happens? The hearing is adjourned until the next date for hearing applications.
What can a court do in a chambers proceeding? Grant or refuse relief; dispose of any questions; adjourn the hearing generally or in particular; obtain expert assistance; order trials on a chambers hearing
What happens when the court thinks a party hasn't been served? The court can dismiss the action, adjourn the proceeding or order service.
Who can adjourn chambers hearings? Judges, Master and Registrars
If a hearing is more than 2 hours long, what happens? It must have a date set by a Registrar.
What are the deadlines for consent adjournments? By requisition, before 9:00AM on the date of hearing.If after that then must be made in person in chambers
In what order are chambers hearings heard? Consented applications first, contested after, ordered with the shortest first and longer ones after.
As the Application Respondent, how many Records must be made? Two, one for your lawyer and one to filed in the registry
What six things must be in a Notice of Application? Orders; facts; rules relied on; list of Affidavits/Exhibits; draft order; time estimate
What must not be in an Application Record? Affidavits of service, lists of authorities or any other non-TINRA documents
Created by: 21000704