Examination in Aid of Execution
(1) Where a judgment creditor is entitled to issue execution upon or otherwise enforce an order of the court, the creditor may examine the judgment debtor for discovery as to
(a) any matter pertinent to the enforcement of the order,
(b) the reason for nonpayment or nonperformance of the order,
(c) the income and property of the debtor,
(d) the debts owed to and by the debtor,
(e) the disposal the debtor has made of any property either before or after the making of the order,
(f) the means the debtor has, or has had, or in future may have, of satisfying the order, and
(g) whether the debtor intends to obey the order or has any reason for not doing so.
(2) An officer or director of a corporate judgment debtor, or a person liable to execution upon the order in the case of a partnership or firm judgment debtor, may, without an order, be examined for discovery upon the matters set out in subrule (1).
(3) Unless the court otherwise orders, a person examined under subrule (1) or (2) shall not be further examined in the same proceeding for a year.
(4) Upon being satisfied that any other person may have knowledge of the matters set out in subrule (1) the court may order the person to be examined for discovery concerning the person's knowledge.
(5) Where a difficulty arises in or about the execution or enforcement of an order the court may make any order for the attendance and examination of a party or person it thinks just.
(6) The provisions of Rule 27 (2), (61, (141, (151, (16), (20),(211, (221, (23), (24), (25) and (26) apply to an examination under this rule.
(7) Any part of an examination for discovery under this rule may be given in evidence in the same or any subsequent proceeding between the parties to the proceeding or between the judgment creditor and the person examined for discovery.
(8) Unless the court otherwise orders, the party conducting an examination under this rule is entitled to recover the costs of the examination from the debtor.
(9) In this rule a "judgment creditor" means a person entitled to enforce an order of the court, whether for payment of money or otherwise, and "judgment debtor" or "debtor" means a person against whom the order may be enforced.
Sales by the Court
(1) Where in a proceeding it appears necessary or expedient that property be sold, the court may order the sale and may order a person in possession of the property or in receipt of the rents, profits or income from it to join in the sale and transfer of the property and deliver up the possession or receipt to the purchaser or person designated by the court.
(2) In a debenture holder's proceeding where the debenture holder is entitled to a charge on any property, the court, if it is of the opinion that eventually there must be a sale of the property, may order the sale before or after judgment, whether or not all interested persons are ascertained or served.
(3) Where an order is made directing property to be sold, the court may permit any person having the conduct of the sale to sell the property in the manner as the person thinks just or as the court directs.
(4) The court may give directions it thinks just for the purpose of effecting a sale, including directions
(a) appointing the person who is to have conduct of the sale,
(b) fixing the manner of sale, whether by contract conditional on the approval of the court, private negotiation, public auction, sheriff's sale, tender or some other manner,
(c) fixing a reserve or minimum price,
(d) defining the rights of a person to bid, make offers or meet bids,
(e) requiring payment of the purchase price into court or to trustees or to other persons,
(f) settling the particulars or conditions of sale,
(g) obtaining evidence of the value of the property,
(h) fixing the remuneration to be paid to the person having conduct of the sale and any commission, costs or the expenses resulting from the sale,
(i) that any conveyance or other document necessary to complete the sale be executed on behalf of any person by a person designated by the court, and
(j) authorizing a person to enter upon any land or building.
(5) A person having conduct of a sale may apply to the court for further directions.
(6) The result of a sale by order of the court shall be certified by the person having the conduct of the sale in Form 54, verified by affidavit, and filed forthwith after completion of the sale.
(7) The person having conduct of the sale may apply to the court for a vesting order in favour of a purchaser.
(1) Where an application in a proceeding is authorized to be made to the court, it shall be made by interlocutory application.
(2) A party may include in an application more than one matter upon which the party desires the order of the court.
(3) An interlocutory application shall be brought by filing a notice of motion in Form 55, which shall specify any rule or other enactment relied upon.
(4) An application shall be supported by affidavit as to all the facts on which it is based that do not appear from the record, but an affidavit previously made and read in the same proceeding also may be used.
(5) A notice of motion shall contain a statement of the affidavits to be used in support, and the affidavits not already served shall be filed and delivered with the notice.
(6) Unless the court otherwise directs, a notice of motion is returnable at 10 a.m. before the court in chambers on any day fixed for that purpose.
(7) A copy of the notice of motion shall be delivered to all parties of record whose interests may be affected by the order sought.
(8) If satisfied that no notice is necessary or in case of urgency, the court may make an order ex parte and, on the application of a person affected by the order, may set it aside or vary it as it thinks just.
(9) A party obtaining an ex parte order shall deliver the order together with the affidavits upon which it was granted to all parties of record and serve them on any other persons as the court may direct.
(10) Unless otherwise ordered, there shall be at least 2 days between the service or delivery of a notice of motion and the day named in the notice for the hearing.
(11) A party may serve a notice of motion with the originating process or at any time afterwards but, unless the court otherwise orders, the day named in the notice for hearing the application shall not be earlier than the last day fixed for entry of appearance.
(12) A party of record who may be affected by an order sought in an application may file affidavits and shall forthwith deliver copies of them to all other parties of record.
(13) An interlocutory application by consent, or of which notice is not required, may be made by filing
(a) a præcipe specifying the rule or other enactment relied on,
(b) a draft of the order requested, and
(c) evidence that the application is consented to or material on which it is based,
and, on being satisfied that the application is appropriate for proceeding under this rule, the court may make the order without the application being spoken to.
(14) Subject to the agreement of all parties of record and to subrule (16), all motions shall be heard at a place at which the court normally sits in the judicial district in which the proceeding was commenced, and the applicant shall state the name of that place on the notice of motion.
(15) Where there is more than one place within the judicial district referred to in subrule (14) at which the court normally sits, the applicant may name, as the place for hearing, any of those places, but where the applicant names a place other than the place at which the proceeding was commenced, the court may, where the court considers that it was unreasonable to have made the motion returnable at that other place,
(a) order that the application be heard at some other place,
(b) dismiss the application, or
(c) hear the application
and may, in any event, make a special order as to costs.
(16) Where any registrar is satisfied that, due to urgency or the convenience of the parties, an application should be heard at a place outside of the judicial district in which the proceeding was commenced, the registrar may, ex parte, grant leave for the applicant to do either or both of the following:
(a) file the notice of motion in some other judicial district;
(b) name as the place of hearing a place in that other judicial district;
and where the registrar grants leave, he or she shall endorse the notice of motion accordingly.
(17) Where, in respect of an application for which leave was granted under subrule (16) (b), the court at the hearing of the application considers that the application should not be heard at that place, the court may
(a) order that the application be heard at some other place,
(b) dismiss the application, or
(c) hear the application
and may, in any event, make a special order as to costs.
(18) Where a procedure authorized by subrule (15) or (16) is followed, and where practical, the original registry shall transfer the file to the registry where the hearing is to take place, and after the hearing the file shall be returned to the original registry.
(19) Where the transfer is not practical, the registry at the place where the hearing takes place, after the hearing, shall forward all material filed in that registry and any order made to the original registry.
(1) An application for an interlocutory injunction may be made by a party whether or not a claim for an injunction was included in the relief claimed. The application shall be made upon notice to all other parties.
(2) Notwithstanding subrule (1), in case of urgency an application for an injunction may be made ex parte and the court may grant an interim injunction.
(3) In case of urgency and with leave of the court, application for an injunction may be made before commencement of a proceeding and the injunction may be granted on terms providing for the commencement of proceedings.
(4) No writ of injunction shall be issued. An injunction shall be by order of the court.
(5) Upon application, which may be made ex parte in case of urgency, the court may rescind, suspend or vary an order for an injunction.
(6) Unless the court otherwise orders, an order for an interlocutory or interim injunction shall contain the applicant's undertaking to abide by any order which the court may make as to damages.
(7) In a proceeding in which an injunction has been or might have been claimed, a party may apply by petition after judgment to restrain another party from the repetition or continuance of the wrongful act or breach of contract established by the judgment or from the commission of any act or breach of a like kind.
Detention, Preservation and Recovery of Property
(1) The court may make an order for the detention, custody or preservation of any property that is the subject matter of a proceeding or as to which a question may arise and, for the purpose of enabling an order under this rule to be carried out, the court may authorize a person to enter upon any land or building.
(2) Where the right of a party to a specific fund is in dispute in a proceeding, the court may order the fund to be paid into court or otherwise secured.
(3) Where property is the subject matter of a proceeding and the court is satisfied that it will be more than sufficient to answer all claims on it, the court at any time may allow the whole or part of the income of the property to be paid, during such period as it may direct, to a party who has an interest in it or may direct that part of the personal property be delivered or transferred to a party.
(4) Where a party claims the recovery of specific property other than land, the court may order that the property claimed be given up to the claimant, pending the outcome of the proceeding, either unconditionally or upon terms relating to giving security, time, mode of trial or otherwise as it thinks just.
(5) Unless the court otherwise orders, if an order is made under subrule (4) the order shall contain the claimant's undertaking to abide by any order which the court may make as to damages arising out of delivery of the property to the claimant or compliance with any other order.
(1) The court may appoint a receiver in any proceeding either unconditionally or on terms, whether or not the appointment of a receiver was included in the relief claimed by the applicant.
(2) Unless the court otherwise orders, a receiver shall give security as the court may direct in either Form 57 or Form 58, and until that security is given, the order appointing the receiver shall not be presented for entry.
(3) The court shall fix any remuneration to be paid to a receiver.
(4) Unless the court otherwise orders, a receiver shall file and deliver his accounts annually.
(1) Where a person (in this rule called the "applicant") is sued or expects to be sued in respect of property in the person's possession or under the person's control or in respect of the proceeds from a disposition of the property, or receives a claim in respect of the property or proceeds by or from 2 or more persons (in this rule called the "claimants") making adverse claims and the applicant claims no beneficial interest in the property, the applicant may apply to the court for relief by way of interpleader.
(2) A person who makes a claim to or in respect of property taken or intended to be taken by a sheriff in the execution of any process, or to the proceeds from a disposition of the property, shall deliver to the sheriff written notice of the person's claim and the person's address for delivery.
(3) On receipt of a notice of claim, a sheriff shall forthwith deliver a copy to the person who caused the process to issue, and that person shall, within 7 days after receiving the copy, deliver to the sheriff a written notice stating whether that person admits or disputes the claim.
(4) On receipt of a notice admitting a claim, a sheriff shall release any property the claim to which is admitted, and the court may restrain the bringing of a proceeding against the sheriff for or in respect of his having taken possession of the property and, unless the court otherwise orders, a person who admits a claim is only liable to the sheriff for any costs, fees and expenses incurred by the sheriff before receipt of the notice admitting the claim.
(5) On receipt of a notice disputing a claim or on the failure of the person who caused the process to issue to give the sheriff the notice within the time required by paragraph (b), the sheriff may apply for interpleader relief.
(6) An application for interpleader relief shall be made by petition, unless it is made in a proceeding already commenced, in which case it may be made by notice of motion.
(7) An application for interpleader relief shall be supported by an affidavit stating the names and addresses of the claimants of whom the applicant has knowledge and that the applicant
(a) claims no beneficial interest in the property in dispute, other than for costs, fees or expenses,
(b) does not collude with any claimant of the property, and
(c) is willing to deliver the property to the court or to dispose of it as the court may direct.
(8) An application for interpleader relief may be made ex parte, and the court may deal with the matter summarily or may give directions for service.
(9) On the hearing of an application for interpleader relief the court may
(a) order a claimant to be made a party in a proceeding already commenced in substitution for or in addition to the applicant,
(b) order an issue between the claimants to be stated and tried and may direct which claimant is to be plaintiff and which defendant,
(c) on the request of the applicant or a claimant, determine the rights of the claimants summarily,
(d) where a claimant fails to appear, or appears and fails or refuses to comply with an order made in the proceeding, make an order declaring the claimant and all persons claiming under the claimant be forever barred from prosecuting the claim against the applicant and all persons claiming under the claimant, without affecting the rights of the claimants as between themselves,
(e) stay any further step in a proceeding,
(f) where there are interpleader applications pending in several proceedings, make an order that shall be binding on all the parties to the various proceedings,
(g) order the costs of the applicant to be paid out of the property or proceeds,
(h) declare that the liability of the applicant with respect to the property or the proceeds is extinguished, and
(i) make any other order it thinks just.
(1) Where by an enactment, an appeal or an application in the nature of an appeal from the decision, direction or order of any person or body is authorized to be made to the court or to a judge, the appeal shall be governed by this rule to the extent that it is not inconsistent with any procedure provided for in the enactment.
(2) An appeal shall be commenced by filing in a registry a notice of appeal in Form 59.
(3) A notice of appeal must
(a) include an application for directions as to the conduct of the appeal, and
(b) specify the date on which the application will be made, which shall be not less than 7 days after service of the notice, unless the court otherwise directs.
(4) A notice of appeal shall be served upon the person or body which gave the decision or direction or made the order and on all other persons who may be affected by the order sought, unless the court otherwise directs.
(5) The court may give directions it considers necessary for the proper hearing and determination of the appeal and, without limiting the generality of that, may make an order
(a) that documents or transcripts or minutes be produced,
(b) that evidence be adduced by way of affidavit, or that it be given orally,
(c) that the appeal be determined by way of stated case, or argument upon a point of law,
(d) prescribing time limits for taking steps in and for the hearing of the appeal, or
(e) that the appeal be disposed of summarily,
and may exercise the powers of the court as on an originating application.
Foreclosure and Cancellation
(1) A proceeding for foreclosure of the equitable right to redeem mortgaged property or for redemption shall be commenced by petition.
(2) All persons whose interest in or claim to the mortgaged property is sought to be extinguished and all persons against whom any relief is sought shall be made respondents, and unless the court otherwise orders, it is not necessary to join any other person as a respondent.
(3) Notwithstanding Rule 8 (1) a petitioner under this rule may join in the proceeding any claim arising out of the mortgage or out of any bond or collateral security or obligation given for the mortgage debt and may join as a party any person who is liable to pay the mortgage debt.
(4) A person who registers or files in a land title office an interest, right or claim in or to the mortgaged property after the petitioner has registered a lis pendens in respect of the proceeding against the mortgaged property, need not be served with the petition and is bound by an order made in the proceeding, but the person may enter an appearance in the proceeding.
(5) The court may
(a) make a final order of foreclosure or order that a respondent shall, within a redemption period that the court may fix, or forthwith, pay to the petitioner what is due under the mortgage and for costs, and that, in default of payment, the respondent shall be foreclosed of his equity of redemption,
(b) determine summarily or order that an account be taken of and that the registrar certify, what is due to the petitioner or to any person on the date of hearing of the petition or the accounting and either
(i) the daily amount of interest, or
(ii) if the daily amount of interest may fluctuate, the method for calculating such interest
from the date of the hearing of the petition or the accounting to the expiration of the period of redemption,
(c) determine summarily or order an inquiry to determine any issues raised between respondents, including priorities,
(d) determine summarily or order an inquiry to determine whether a person should be served with the petition,
(e) order at what times, on what terms and in what order of priority respondents may redeem the mortgaged property and that in default they shall be foreclosed of any interest, right or claim in or to the mortgaged property,
(f) grant judgment for any amount found due, or which may be certified to be due on an accounting,
(g) order a sale of the mortgaged property,
(h) grant further or corollary relief, and
(i) make an order under Rule 52 (11).
(6) In default of payment in accordance with an order made under subrule (5), a final order of foreclosure may be granted against a respondent on application by the petitioner.
(7) A party of record may apply at any time for an order that the mortgaged property be sold or be put up for sale.
(8) The court may order an inquiry to settle the terms of a sale.
(9) Notwithstanding that the time for redemption has not expired, the person having conduct of a sale may apply to the court for an order confirming the sale, directing the disposition of the proceeds and vesting title in the purchaser.
(10) A respondent desiring to redeem may, upon paying to the petitioner the amount due under the mortgage, give notice to the petitioner to assess costs, and if, within 14 days of delivery of the notice, the petitioner has not filed a bill of costs for assessment, the petitioner shall not be entitled to costs.
(11) This rule applies to a proceeding by a vendor on an agreement for sale of land in which a claim is made for specific performance of an agreement for sale and for its cancellation upon failure to perform.
(1) An &davit used in a proceeding must be filed.
(2) An affidavit must
(a) be expressed in the first person and show the name, address and occupation of the deponent,
(b) if the deponent is a party or the solicitor, agent, director, officer or employee of a party, state that fact, and
(c) be divided into paragraphs numbered consecutively.
(3) An affidavit shall be signed by the deponent and its jurat signed by the person before whom it is sworn. A deponent unable to sign an affidavit may place his or her mark on it.
(4) Where it appears to a person before whom an affidavit is sworn that a deponent is unable to read it, he or she shall certify in the jurat that the affidavit was read in his or her presence to the deponent who seemed to understand it.
(5) Where it appears to a person before whom an affidavit is to be sworn that the deponent does not understand the English language, the affidavit shall be interpreted to the deponent by a competent interpreter who shall certify by endorsement in Form 60 on the affidavit that he or she has interpreted the affidavit to the deponent.
(6) An exhibit referred to in an affidavit must be identified by the person before whom it is sworn by signing a certificate placed on the exhibit in the following form:
"This is Exhibit ........................................................... referred to in the affidavit of .............................................................................. sworn before me (date)."
(7) An exhibit referred to in an affidavit need not be filed, but must be made available for the use of the court and for the prior inspection of a party to the proceeding and, in the case of a documentary exhibit not exceeding 5 pages, a copy shall be attached to the affidavit and to all copies served or delivered.
(8) The person before whom an affidavit is sworn shall initial all alterations in the affidavit, and unless so initialled, the affidavit shall not be used in a proceeding without leave of the court.
(9) An affidavit may state only what a deponent would be permitted to state in evidence at a trial, except that where the source of the information is given, an affidavit may contain statements as to the deponent's information and belief, where it is made
(a) in respect of an application for an interlocutory order, or
(b) by leave of the court under Rule 40 (52) (a) or 52 (8) (e).
(10) With leave of the court an affidavit may be used in evidence, notwithstanding an irregularity in form.
(11) An affidavit may be used in a proceeding notwithstanding that it was sworn before the proceeding was commenced.
(1) All originating applications and, unless made in the course of trial, all interlocutory applications, shall be heard and disposed of by the court in chambers.
(2) Without limiting the generality of subrule (1), the following matters shall be heard and disposed of by the court in chambers:
(a) appeals from and applications to confirm, vary or set aside orders, reports, certificates or recommendations of a master, registrar, special referee or other officer of the court;
(b) actions or issues in actions that have been ordered to be proceeded with by affidavit or on documents before the court, and special cases and hearings on a point of law;
(c) applications for judgment under Rules 17,18,18A, 25 and 31;
(d) applications to vary or set aside a judgment;
(e) matters which, being otherwise proceeded with by action, are ordered to be disposed of in chambers.
(3) In this rule, "application" includes all proceedings that may be heard and disposed of in chambers.
(4) When a party to an application fails to attend, whether on the return of the application or at the time appointed for the consideration of the matter, the court may proceed ex parte, if, considering the nature of the case, it thinks it expedient so to do, and may require evidence of service it thinks necessary.
(5) Where the court has proceeded ex parte under subrule (4), the proceeding shall not be reconsidered unless the court is satisfied that the party failing to attend was not guilty of wilful delay or default.
(6) If an application is not disposed of on the return date, the parties shall attend from time to time without further notice at such time as may be appointed.
(7) Each application to be spoken to, when set down for hearing, shall be entered in the registry in a list and, so far as is practical, the solicitor setting down the application shall indicate whether it is of a time consuming or contentious nature.
(8) On an application, evidence shall be given by affidavit, but the court may
(a) order the attendance for cross-examination of a deponent, either before the court or before another person as the court directs,
(b) order the examination of a party or witness, either before the court or before another person as the court directs,
(c) give directions required for the discovery, inspection or production of a document or copy thereof,
(d) order an inquiry, assessment or accounting under Rule 32, and
(e) permit other forms of evidence to be adduced.
(9) Except in cases of urgency, an application shall be heard in a place open to the public when the application is made, unless the court, in the case of a particular application, directs that for special reasons the application ought to be dealt with in private.
(10) Where an application has been made returnable on a day on which the court does not hold chambers, the application will stand adjourned without order to the next day on which the court holds chambers.
(11) On an application the court may
(a) grant or refuse the relief claimed in whole or in part, or dispose of any question arising on the application,
(b) adjourn the application from time to time, either to a particular date or generally, and when the application is adjourned generally, a party may set it down on 2 days' notice for further hearing,
(c) obtain the assistance of an expert and act upon the certificate or report of that expert and determine the expert's remuneration and direct payment of it by a party, and
(d) order a trial of the proceeding, either generally or on an issue, and order pleadings to be filed, and may give directions for the conduct of the trial and of pre-trial proceedings, and for the disposition of the application.
(12) If on the hearing of an application the court is of the opinion that a person to whom notice has not been given ought to have had notice, the court may either dismiss the application or adjourn the hearing.
(13) The hearing of an application may from time to time be adjourned by the registrar.
(14) The registrar or the registrar's clerk shall attend at and keep notes of all proceedings in chambers with a short statement of the questions or points decided or orders made at every hearing.
Masters, Registrars and Special Referees
(1) A master hearing an application has the powers of the court set out in Rule 52 (4) to (12).
(2) A master has the powers and jurisdiction of a registrar under these rules.
(3) A master has the powers of the court to dispose of all non-contentious business in the administration of estates.
(4) A registrar dealing with a matter has the power to extend, shorten or limit the time for any proceeding before the registrar and has the powers set out in Rule 32 (5).
(5) If a matter appears to the master proper for the decision of the court, the master may refer it to the court, and the court may either dispose of the matter or refer it back to the master with directions.
(6) A person affected by an order or decision of a master, registrar or special referee may appeal the order or the decision to the court.
(7) The appeal may be by way of summary reference from the master, registrar or special referee at the request of a party or by filing a notice of appeal in Form 61 within 14 days after the order or decision complained of.
(8) Unless otherwise ordered, there shall be at least 2 days between the service of the notice and the hearing.
(9) An appeal from the decision of a master or registrar is not a stay of proceeding unless so ordered by the court or the master.
(1) In this rule "convention" means the Convention for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters, the English language version of which is set out in Schedule 4 of the Court Order Enforcement Act.
(2) An application to have a foreign judgment registered under Part 2 of the Court Order Enforcement Act or under the convention, shall be made by originating application.
(3) The application for registration shall be supported by an affidavit
(a) exhibiting a certified copy of the judgment under the seal of the court where the judgment was obtained,
(b) exhibiting a certified translation of the judgment, if given in a language other than English, and
(c) stating, to the best of the information and belief of the deponent,
(i) that the judgment creditor is entitled to enforce the judgment,
(ii) that the judgment is not one which may not be registered under either section 31 (6) of the Court Order Enforcement Act or Article 11, paragraph 2 of the convention,
(iii) that the judgment debtor was duly served with the process of the original court, unless this appears from the judgment,
(iv) that the original court had jurisdiction to grant the judgment,
(v) the full name, trade or business, and usual or last known place of abode or of business of the judgment creditor and judgment debtor respectively, so far as is known to the deponent, and
(vi) the amount presently owing on the judgment.
(4) Notice need not be given to the judgment debtor of an application under subrule (2).
(5) The order giving leave to register the judgment shall be in Form 62.
(6) An order that a foreign judgment be registered under the convention may be set aside where the court is satisfied that
(a) the judgment debtor, being the defendant in the original proceedings, either was not served with the process of the original court or did not receive notice of those proceedings in sufficient time to enable the judgment debtor to defend the proceedings and, in either case, did not appear,
(b) another judgment has been given by a court having jurisdiction in the matter in dispute before the date of judgment in the original court, or
(c) the judgment is not final, or an appeal is pending, or the time for appeal has not expired.
(7) A defendant in an action on a foreign judgment, on proof that an appeal or other proceeding in the nature of an appeal is pending, or the time for appeal has not expired, may apply for an order staying the proceeding until the determination of the appeal or other proceeding on terms that the court may impose.
(1) This rule applies where an action may be brought in rem against a ship or other property.
(2) Except to the extent that jurisdiction has been otherwise specially assigned, an action may be brought in rem against a ship or other property that may be brought in rem in the Federal Court of Canada in all cases in which a claim for relief is made or a remedy is sought under or by virtue of Canadian maritime law or any other law of Canada relating to navigation and shipping.
(3) An action in rem shall be commenced by issuing a writ of summons in Form 107.
(4) An action in rem may be commenced with an action in personam by the issuance of one writ of summons in Form 108 and may be joined with another proceeding in accordance with Rule 5.
(5) In an action in rem the writ may be served in British Columbia,
(a) upon a ship or other property on board a ship by affixing a copy of the writ to a conspicuous part of the ship that is protected from the elements to the extent practical, and
(b) upon property that is not on board a ship by
(i) attaching a copy of the writ to a conspicuous part of the property protected from the elements to the extent practical, or
(ii) by personal service on the person having apparent custody of the property.
(6) In an action in rem an appearance may be filed in the name of the property named.
(7) No judgment may be taken in an action in rem in default of an appearance being filed except by application to the court.
(8) A person who files a statement of defence to an action in rem shall plead the nature of the interest that the person claims in the ship or other property.
(9) A party may, at any time after an action in rem has been commenced, apply for a warrant for the arrest of the property named by filing with the registrar an "Affidavit to Lead Warrant" in Form 109.
(10) The registrar may, after reading the affidavit,
(a) issue the warrant, or
(b) refer the matter to the court and the court may issue the warrant, subject to any directions that the court may give.
(11) A warrant to arrest under this rule shall be in Form 110.
(12) If the action in rem is for wages or for possession of a ship belonging to a port of a foreign state that has a consulate in British Columbia, a notice of the action shall be given to the consulate before an application is made for the arrest of the ship under this rule.
(13) The warrant shall be served by a person authorized to serve a writ of execution in the manner provided by subrule (5).
(14) The person who serves a warrant shall file proof of service forthwith after service is effected.
(15) The arrest of property that is authorized by the warrant to be arrested takes effect at the time the warrant is served.
(16) After arrest no person shall move the property that has been arrested, unless the court permits it or all parties interested in the action consent.
(17) After property has been arrested, the court may make an order for its safety and preservation on terms that the court considers just and in particular may,
(a) authorize the property to be moved, and
(b) order that perishable property be disposed of with the proceeds to be paid as directed by the court.
(18) The court may, on application of any interested party, authorize a person to take possession of, and assume responsibility for, property that has been arrested under this rule, but the possession and responsibility shall otherwise continue in the person or persons in possession of the property immediately before the arrest.
(19) The court shall not make an order under subrule (18) unless the court is satisfied that the party making the application has paid or given adequate security for all fees, charges and expenses that will be incurred while the property is in the possession of the person authorized under subrule (18).
(20) A person who wishes to prevent the release of any property that has been arrested under this rule or who wishes to prevent the payment out of court of proceeds of the disposition of property that has been arrested must file a caveat in Form 111 in the registry from which the warrant was issued.
(21) A person who has entered a caveat may withdraw it by filing a notice to that effect in Form 112.
(22) Any person who suffers damages or costs as a result of a caveat being filed without sufficient justification may apply to the court to have those damages and costs summarily determined.
(23) An application under subrule (22) shall be served on the caveator.
(24) If the court finds that the caveator cannot show that there was sufficient justification for entry of the caveat, the court shall summarily determine the amount of damages and costs suffered by the applicant and make an order for payment accordingly.
Release of Property
(25) The court may, upon application of any person having an interest in property arrested under this rule, order the release of the property arrested upon bail being posted.
(26) Bail to answer judgment and obtain the release of property arrested under this rule may be posted by making a payment into court as bail in Form 113 or by delivering to the registrar the guarantee of a chartered bank of Canada or the bond of any surety company licensed to do business in British Columbia in Form 114 or in the manner as the parties may agree or the court may order.
(27) The amount of bail to be posted shall be the lesser of
(a) an amount sufficient to answer judgment in the proceedings against the property arrested, or
(b) the appraised value of the property.
(28) Unless the court otherwise orders, notice of an application for the release of property arrested under this rule shall be served at least one day before the application is heard
(a) on the party to the action at whose instance the arrest was made, and
(b) on any person having filed a caveat to prevent the property from being released from arrest.
(29) Notice of an application shall include the amount of any bail to be posted and the name of the bank or surety company to be posting the bail.
(30) The registrar shall issue a release from arrest in Form 115 when
(a) the court orders the release of the property arrested under this rule, or
(b) consent to the release of the property arrested under this rule is given by the party at whose instance the property was arrested and by any and all persons who filed caveats to prevent the release of the property from arrest.
(31) On delivery of the release from arrest to the person in possession and on payment of all fees to and charges incurred in respect of the arrest and custody if any, of the property arrested, the property is released from arrest.
Collisions at Sea — the "Preliminary Act"
(32) Unless the court otherwise orders, where there is an action arising out of a collision of ships at sea, the following special provisions in subrules (33) to (37) apply.
(33) Where this rule applies, the statement of claim, statement of defence, counterclaim and any other pleadings need not contain any particulars concerning the collision other than those particulars that are necessary to identify the collision to an opposing party.
(34) The statement of claim, statement of defence and any counterclaim shall be accompanied by a statement of particulars, to be known as a "preliminary act" which shall be sealed up and shall contain the following particulars:
(a) the names of the ships which came into collision and the names of their masters;
(b) the time of the collision;
(c) the place of the collision;
(d) the direction and force of the wind;
(e) the state of the weather;
(f) the state and force of the tide or, if the collision occurred in non- tidal waters, of the current;
(g) the course being steered and the speed through the water of the ship when the other ship was first seen or immediately before any measures were taken with reference to her presence, whichever was the earlier, and all subsequent alterations to the course or speed of the ship up to the time of the collision;
(h) the lights, if any, carried by the ship;
(i) the distance and bearing of the other ship if and when her echo was first observed by radar;
(j) the distance, bearing and approximate heading of the other ship when first seen;
(k) the lights, if any, of the other ship which were first seen;
(1) the lights, if any, of the other ship other than those first seen which came into view before the collision;
(m) the measures which were taken and when to avoid the collision;
(n) the parts of each ship which first came into contact and the approximate angle as illustrated by an appropriate sketch annexed, between the two ships at the moment of contact;
(o) the sound signals that were given, if any, and when;
(p) the fault or default, if any, attributed to the other ship;
(q) the sound signals, if any, that were heard from the other ship and when.
(35) The preliminary act shall be in parallel columns such that the respective particulars referred to in subrule (34) (a) to (q) in respect of each ship can be easily compared.
(36) A preliminary act shall not be opened unless all parties consent or the court, on application of one of the parties, orders it to be opened.
(37) After a preliminary act has been opened, it shall form part of the appropriate pleadings of the party.
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