T-1120-76
Scott Paper Company and Scott Paper Limited
(Plaintiffs)
v.
Scott's Liquid Gold, Inc. and Reckitt & Colman
(Canada) Limited (Defendants)
Trial Division, Mahoney J.—Ottawa, April 2,
1976.
Practice—Plaintiffs seeking order for service ex juris—
Objection that no proof of service of notice of motion and other
material mentioned in Rule 324(2)—Federal Court Rule 324.
Held, the order is granted. Rule 324(2) does not require the
serving of a notice of motion, or anything else, but only that if a
notice is served, the other material mentioned must also be
served.
MOTION.
COUNSEL:
R. E. Dimock for plaintiffs.
SOLICITOR:
Donald F. Sim, Q. C., Toronto, for plaintiffs.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The plaintiffs seek an order per
mitting service of the statement of claim herein
outside the jurisdiction of the Court upon the
defendant, Scott's Liquid Gold, Inc. The other
defendant has been served with the statement of
claim within the jurisdiction. The plaintiffs make
their application in writing, without personal
appearance, pursuant to Rule 324.
Paragraph (2) of that Rule provides:
A copy of the request to have the motion considered without
personal appearance and a copy of the written representations
shall be served on each opposing party with the copy of the
notice of motion that is served on him.
Objection has been raised that there is no proof of
service of the notice of motion and other material
mentioned in Rule 324(2).
If that objection is well founded, the result is
that, in the ordinary course of practice, no ex parte
motion will be dealt with under Rule 324 since it is
unusual that any opposing party be served with
notice of a motion proposed to be presented ex
parte. Rule 324 is designed to permit litigants,
with the concurrence of the Court, to deal with
applications in a way that is economical in terms
of both time and cost. It is a procedure that has
particular practical importance to this Court, exer
cising, as it does, its jurisdiction throughout the
whole of Canada. I have difficulty conceiving of a
situation, other than one where extreme urgency is
a material element, where the Court would consent
to deal with an application ex parte, that could
not, equally appropriately, be disposed of under
Rule 324. It would be most undesirable if para
graph (2) of the Rule had to be construed so as to
preclude litigants presenting, and the Court deal
ing with, motions ex parte where the other condi
tions, permitting the matter to be dealt with ex
parte, exist.
Such an interpretation is not necessary, nor, in
my view, is it correct. Rule 324(2) does not require
that a notice of motion or anything else be served;
it does require that if a notice of motion is served
the other material mentioned must also be served.
In this case, the procedure is appropriate and
the order will issue.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.