McNair,
J:—This
is
a
combined
ex
parte
application
of
the
applicant
for
an
order
to
show
cause
why
certain
securities
should
not
be
charged
to
secure
payment
of
the
sum
of
$31,469.54
alleged
to
be
due
Her
Majesty
by
virtue
of
a
certificate
under
section
223
of
the
Income
Tax
Act,
and
for
an
order
for
service
ex
juris
of
the
show
cause
order
on
the
respondent
in
London,
England,
or
elsewhere
within
the
United
Kingdom
wherever
he
may
be
found.
Both
applications
are
combined
in
the
one
motion
to
which
a
draft
order
is
attached.
They
are
supported
by
separate
affidavits.
One
of
these
is
the
affidavit
of
a
collection
officer
of
the
applicant
touching
on
the
show
cause
application.
The
other
is
the
affidavit
of
the
applicant’s
solicitor
in
support
of
the
application
for
service
ex
juris.
I
should
state
at
the
outset
that
it
would
have
been
better
practice,
in
my
view,
to
have
made
the
applications
separately,
even
though
concurrently,
for
the
reason
that
they
have
to
be
dealt
with
individually
on
their
respective
merits.
Accompanying
the
application
was
a
letter
of
July
31,
1984,
from
counsel
for
the
applicant
to
the
Administrator
of
the
Court
in
Ottawa,
which
essentially
reads
as
follows:
Dear
Sir:
RE:
Julian
M
Muir
ITA-1890-83
As
Counsel
for
the
Applicant,
Her
Majesty
The
Queen,
I
request
that
the
above
motion
be
dealt
with
ex
parte,
in
writing,
without
personal
appearance
of
counsel.
Yours
very
truly,
(sgd)
M
F
Donovan
Counsel
Atlantic
Region
It
must
be
noted
that
the
letter
makes
no
reference
to
Rule
324
which
provides
for
the
hearing
of
motions
in
writing
without
personal
appearance
of
the
party
or
his
solicitor.
Clearly,
this
is
a
request
to
have
the
application
heard
ex
parte
on
the
basis
of
written
representations
and
without
personal
appearance
of
counsel.
This
raises
an
important
point
of
practice
on
which
there
has
been
some
divergence
of
judicial
opinion.
The
issue
is
simply
this
—
Can
the
Court
entertain
an
ex
parte
motion
of
this
nature
without
necessarily
invoking
Rule
324?
Motions
and
other
interlocutory
applications
to
the
Court
or
a
prothonotary
are
governed
by
Rules
317
to
331.
All
applications
made
by
a
party
or
his
solicitor,
other
than
those
made
in
writing,
are
required
to
be
made
in
open
Court.
Ordinarily,
the
party
supporting
any
application
must
appear
personally
or
by
counsel.
Unlike
the
case
in
other
jurisdictions,
motions
and
other
interlocutory
applications
are
not
made
in
chambers.
Provision
is
made
for
regular
motion
day
sittings,
apart
from
general
sittings
of
the
Court.
If
a
motion
cannot
be
brought
on
at
regular
sittings
an
informal
request
can
be
made
to
the
Registry
for
the
appointment
of
a
special
sitting.
The
Associate
Chief
Justice
can
designate
a
prothonotary
to
hear
motions.
Motions,
other
than
ex
parte
applications,
must
be
on
notice
and
filed
in
advance
of
the
hearing,
together
with
supporting
affidavits,
unless
the
notice
requirement
is
dispensed
with
by
the
Court.
A
party
who
wishes
to
make
contra
representations
to
an
application
made
by
another
party
may
do
so
by
filing
written
representations
(Rule
325).
Rule
324
deals
with
motions
in
writing
by
applicants.
The
provisions
which
are
particularly
applicable
to
the
issue
here
are
contained
in
sub-rules
(1),
(2)
and
(3),
which
are
set
out
hereunder:
Rule
324.
(1)
A
motion
on
behalf
of
any
party
may,
if
the
party,
by
letter
addressed
to
the
Registry,
so
requests,
and
if
the
Court
or
a
prothonotary,
as
the
case
may
be,
considers
it
expedient,
be
disposed
of
without
personal
appearance
of
that
party
or
an
attorney
or
solicitor
on
his
behalf
and
upon
consideration
of
such
representations
as
are
submitted
in
writing
on
his
behalf
or
of
a
consent
executed
by
each
other
party.
(2)
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.
(3)
A
party
who
opposes
a
motion
under
paragraph
(1)
may
send
representations
in
writing
to
the
Registry
and
to
each
other
party
or
he
may
file
an
application
in
writing
for
an
oral
hearing
and
send
a
copy
thereof
to
the
other
side.
Rule
326
is
very
much
on
point,
and
reads:
Rule
326.
(1)
Subject
to
paragraph
(2),
every
application
shall
be
made
in
court;
and
the
Court
shall
be
open
to
the
public
when
the
motion
is
made
unless
the
Court
otherwise
directs
in
the
case
of
a
particular
motion
after
having
heard
argument
as
to
whether
the
motion
relates
to
a
class
of
matter
that
ought,
for
special
reason,
to
be
dealt
with
in
camera.
(2)
A
judge
not
sitting
in
court
may
make
any
order
that
might
be
made
in
court,
(a)
if
he
is
satisfied
that
all
parties
affected
have
consented
thereto,
(b)
if
the
application
was
made
in
accordance
with
Rule
324,
or
(c)
if
he
is
satisfied
that,
in
the
interest
of
the
administration
of
justice,
the
order
should
be
made
without
giving
the
parties
an
opportunity
to
be
heard
(as,
for
example,
when
a
hearing
must
be
adjourned
by
reason
of
illness
of
a
judge
or
the
unavailability
of
court
room
facilities).
but
any
order
so
made
under
paragraph
(a)
may
be
set
aside
on
the
application
of
any
party
on
the
ground
that
he
did
not
in
fact
consent
thereto
and
any
order
so
made
under
paragraph
(b)
or
(c),
may
be
set
aside,
or
varied
on
such
terms
as
may
be
just,
on
the
application
of
any
party
who
did
not
have
an
opportunity
to
be
heard.
To
my
mind,
the
scope
and
application
of
subparagraph
(c)
of
the
Rule
is
very
much
restricted
by
the
examples
given.
Even
if
the
enumeration
is
not
intended
to
be
exhaustive,
there
would
still
have
to
be
some
unique
and
compelling
reason
why
an
order
should
be
granted
in
the
interest
of
the
administration
of
justice.
In
short,
the
subparagraph
does
not
open
wide
any
unrestricted
door.
The
Rules
delineate
the
procedural
setting.
It
becomes
necessary
now
to
consider
the
substantive
law
as
to
the
proper
application
of
Rule
324
for
the
hearing
of
motions
in
writing.
Scott
Paper
Co
v
Scott’s
Liquid
Gold,
Inc,
[1976]
2
FC
619
held
that
a
motion
for
service
ex
juris
could
be
made
ex
parte
because
the
proper
application
of
Rule
324(2)
did
not
require
service
of
the
notice
of
motion
or
anything
else.
Mr
Justice
Mahoney
rested
his
decision
on
these
grounds
at
620:
.
.
.
It
would
be
most
undesirable
if
paragraph
(2)
of
the
rule
had
to
be
construed
so
as
to
preclude
litigants
presenting,
and
the
Court
dealing
with,
motions
ex
parte
where
the
other
conditions
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
The
Queen
v
Athenian
Construction
Limited,
[1982]
2
FC
307
there
was
an
ex
parte
application
under
rule
2300
for
an
order
that
certain
debts
alleged
to
be
owing
or
accruing
from
the
garnishees
to
the
judgment
debtor
should
be
attached.
The
case
is
virtually
identical
to
the
one
at
bar
except
that
counsel
for
the
Crown
specifically
invoked
Rule
324
in
his
request
by
letter
that
the
matter
be
heard
on
the
basis
of
written
representations.
This
was
the
principal
issue
in
which
the
application
fell
to
be
determined.
The
decision
went
to
the
contrary
of
Scott
Paper
Co,
supra,
on
the
ground
that
a
Rule
324
application
could
not
be
brought
on
ex
parte
because
of
the
service
requirements
prescribed
thereby.
Mr
Justice
Cattanach
stated
his
conception
of
the
proper
principle
at
308:
Rule
324
requires
that
a
copy
of
such
written
representations
shall
be
served
on
each
opposing
party
together
with
a
copy
of
the
notice
of
motion.
There
is
no
evidence
that
Rule
324
has
been
so
followed.
In
the
case
of
an
application
properly
made
ex
parte
Rule
324
is
inconsistent
therewith.
The
proper
practice
would
be
to
request
that
the
matter
be
heard
upon
the
basis
of
written
representations
and
material
without
the
appearance
of
counsel.
However
if
Rule
324
is
invoked
then
the
provisions
of
that
Rule
should
be
complied
with
and
so
involving
service
which
is
patently
incompatible
with
an
ex
parte
application.
(Emphasis
added)
Smith
v
The
Queen,
[1977]
2
FC
481
was
a
motion
in
writing
under
Rule
324
to
join
the
Governor
General
of
Canada
as
a
third
party
in
an
action
where
one
of
the
grounds
for
holding
the
motion
in
abeyance
and
the
refusal
of
its
immediate
disposition
was
the
lack
of
the
proof
of
service
under
paragraph
(2)
of
the
Rule.
Mr
Justice
Collier
reiterated
the
mandatory
service
requirements
at
page
479:
Applying
the
mandatory
provisions
of
paragraph
(2)
to
this
motion,
the
plaintiff
must
serve
copies
of
(a)
the
motion,
(b)
affidavits
in
support
(if
any
are
filed),
(c)
the
request
to
have
it
considered
without
personal
appearance,
(d)
any
written
representations
on
the
present
defendant,
the
Attorney
General
of
Canada.
Hawker
Industries
Limited
v
Santa
Maria
Shipowning
&
Trading
Co,
[1978]
1
FC
617
(CA)
was
concerned
with
a
motion
in
writing
under
Rule
324
to
the
Federal
Court
of
Appeal
to
quash
a
proceeding
of
the
Trial
Division,
while
an
appeal
therefrom
was
pending
before
the
Court.
The
motion
was
dismissed.
Chief
Justice
Jackett
went
to
some
pains
to
comment
on
the
procedure
envisaged
by
Rule
324
(620-21):
.
.
.
the
provision
in
Rule
324
for
motions
in
writing
serves
the
very
useful
purpose
of
enabling
interlocutory
work
of
the
Court
to
be
dealt
with
more
expeditiously
and
with
much
less
expenditure
of
public
money
than
would
otherwise
be
the
case.
It
is
also,
I
believe,
in
many
instances,
more
economical
from
the
point
of
view
of
the
parties.
There
are
of
course
cases
where
motions
in
writing
are
not
appropriate
having
regard
to
the
character
of
the
subject
of
the
application.
With
certain
exceptions,
an
application
is
only
made
under
Rule
324
when
the
applicant
(in
this
case,
the
appellant)
has
elected
to
have
the
application
disposed
of
in
that
way
(Rule
324(1));
and
an
order
cannot
be
made
against
the
“opposing
party”
based
on
the
submissions
in
writing,
if
he
exercises
his
option
(Rule
324(3))
for
an
“oral
hearing”.
In
addition,
the
practice
of
the
Court
is
to
require
an
oral
hearing
in
any
case
where
it
is
not
satisfied
that
the
matter
can
be
adequately
considered
on
the
written
submissions
(Rule
324(4)).
Undoubtedly,
there
is
a
prevailing
view
that
an
ex
parte
motion
in
writing
cannot
be
dealt
with
under
Rule
324
without
personal
appearance
because
of
the
mandatory
requirement
for
service
on
the
opposite
party
of
copies
of
the
request
therefor,
the
written
representations
and
the
notice
of
motion.
Mr
Justice
Mahoney
chose
to
disagree
with
this
view.
Mr
Justice
Cattanach
agreed
with
it,
but
only
if
Rule
324
was
specifically
invoked.
Instead,
he
favoured
the
expedient
of
permitting
an
ex
parte
motion
in
writing
to
be
brought
on
by
avoiding
any
reference
to
Rule
324
and
simply
requesting
that
the
application
be
heard
on
the
basis
of
written
representations
and
material
without
the
appearance
of
counsel
so
as
to
thereby
circumvent
the
mandatory
service
requirement.
I
am
loath
to
disagree
with
such
eminent
jurists
as
Mr
Justice
Mahoney
and
Mr
Justice
Cattanach
but
I
must
regrettably
take
another
tack.
Ex
parte
applications
are
exceptions
to
the
general
rule
which
requires
that
motions
shall
be
on
notice
to
all
other
parties.
Rule
324
creates
no
such
exception.
Indeed,
the
deliberate
use
of
the
words
“other
party”,
“opposing
party”
and
“other
side”
taken
in
context
with
the
requirement
for
service
on
or
consent
by
the
opposing
party
indicate
just
the
converse.
Rule
324
is
totally
incompatible
with
the
entertaining
of
ex
parte
motions
in
writing.
In
my
opinion,
Rule
324
is
automatically
invoked,
whether
specifically
mentioned
or
not,
whenever
an
application
is
made
for
the
hearing
of
a
motion
in
writing.
The
omission
of
a
label
does
not
change
the
content
of
the
package.
In
the
result,
it
is
my
opinion
that
there
is
no
procedure
or
rule
of
practice
whereby
the
Court
can
properly
entertain
an
ex
parte
motion
in
writing
except
by
consent
of
the
parties
or
in
accordance
with
the
provisions
of
Rule
324
or
by
virtue
of
the
limited,
inherent
discretion
accorded
by
the
sub-rule
326(2)(c).
These
reasons
are
filed
in
support
of
an
order
made
to
that
effect
on
September
27,
1984.
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