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 1s 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 1s 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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