Quick Rules of Court – Notice of Application

When Filing a Notice of Application here are some quick rules to follow:

38.01 Application of Rule
This rule applies to proceedings commenced by Notice
of Application (Form 16D).

38.05   Service of Notice

Time for Service

(4) A Notice of Application shall be served within the

time prescribed by Rule 16.08.

16.08 Time for Service

(1) Where an action is commenced by issuing a Notice

of Action with Statement of Claim Attached, it shall

be served within 6 months thereafter.

(2) Where an action is commenced by issuing a Notice

of Action, the Notice of Action and the Statement of

Claim shall be served together within 6 months after the

Notice of Action is issued.

(3) A Notice of Application shall be served at least 10

days before the date upon which the application is to be

heard except where it is served outside New Brunswick,

in which case it shall be served at least 20 days before the

date upon which the application is to be heard.

38.06 Record

Where an application is made on notice, the applicant

shall, at least 24 hours before the hearing of the application,

file with the clerk a record for the use of the court

consisting of

(a) an index,

(b) a copy of the Notice of Application, and

(c) a copy of all affidavits, including those of each

adverse party, or other material to be used on the hearing.

92-3

38.06.1 Pre-Hearing Brief

(1) Unless ordered otherwise, each party to an application

shall prepare a pre-hearing brief containing

(a) a succinct outline of the facts the party intends to

establish,

(b) a concise statement of the issues to be dealt with

by the court,

(c) a concise statement of the principles of law on

which the party relies and citation of relevant statutory

provisions and leading authorities, and

(d) a concise statement of the relief sought by the

party.

(2) Each party shall, at least 48 hours before the hearing

of the application, file with the clerk

(a) the original copy of his pre-hearing brief which

the clerk shall forthwith transmit to the judge who is to

hear the application, and

(b) a copy of his or her pre-hearing brief for each opposite

party who has not exchanged a copy of his or her prehearing

brief with the party filing the pre-hearing brief.

(3) The clerk shall advise each party when an opposite

party files his or her pre-hearing brief. The clerk shall

release the copies filed under clause (2)(b) to any party

who has filed a pre-hearing brief.

(4) Documentary evidence shall not be included with

the pre-hearing brief unless all parties have consented to

its admission as evidence.

86-87; 87-6; 90-20; 99-71; 2010-61

 Rule of Court:

http://www.canlii.org/en/nb/laws/regu/nb-reg-82-73/99819/part-1/nb-reg-82-73-part-1.html

Setting Aside a Consent Order

The law is clear that a consent order can only be set aside on grounds that would vitiate a contract: e.g. common mistake, fraud, collusion, misrepresentation, duress and illegality. There is also the possibility of a “slip” in drawing up the order oran error in expressing the manifest intention of the parties.

See: Gray v. R., 2004 CanLII 47133 (NB CA),  

[13]                                   Accepting that the impugned consent order was entered into with the apparent authority of the applicant’s former solicitor, the law is clear that a consent order can only be set aside on grounds that would vitiate a contract: e.g. common mistake, fraud, collusion, misrepresentation, duress and illegality. See Morencyand Pelletier v. Charest et al. reflex, (1991), 123 N.B.R. (2d) 392 (C.A.) and Chitel v. Rothbart, [1987] O.J. No. 2321 (Ont. S.C.)(QL), Racz v. Mission (Dist.) 1988 CanLII 2937 (BC CA), (1988), 22 B.C.L.R. (2d) 70 (C.A.) and Wagg v. Canada, 2003 FCA 303 (CanLII), [2004] 1 F.C.R. 206 (C.A.). There is also the possiblity of a “slip” in drawing up the order or an error in expressing the manifest intention of the parties: see Beanland v. Beanland 1997 CanLII 14616 (NL CA), (1997), 151 Nfld. & P.E.I.R. 51 (Nfld.S.C.(A.D.)) at para. 41 and Paper Machinery Ltd. et al. v. J.O. Ross Engineering Corp. et al., 1934 CanLII 1 (SCC), [1934] S.C.R. 186.