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AR 390/68 ALBERTA RULES OF COURT

(Consolidated up to 124/2010)

ALBERTA REGULATION 390/68

Court of Appeal Act
Court of Queen
s Bench Act
Civil Enforcement Act
Family Law Act

ALBERTA RULES OF COURT

Table of Contents

Part 58
Rules as to Practice and Procedure in Controverted Elections Under the Local Authorities Election Act

            813       Court of Queen’s Bench practice

            814       Costs

            815       Forms

Forms

I.  Title
II.  Recognizance

Part 60
Rules Pursuant to Section 424 of the Criminal Code with Respect to Mandamus, Certiorari, Habeas Corpus and Prohibition

            825       Civil rules apply

            826       Order issues in place of writ

            827       Service of notice of motion

            828       Appeal

            829       Power of a judge


Certiorari

            830       Motion within 6 months

            831       Endorsement

            832       Return by magistrate

            833       Application by Crown

Mandamus

            834       Affidavit

            835       Immunity

            836       Effect of order

Habeas Corpus

            837       Order for discharge of prisoner

            838       Coming into force

Rule 1 and Parts 1 to 56.1   Repealed AR 124/2010 s15.14.

Part 57   Repealed by the judges of the Court of Queen’s Bench effective October 1, 2012 pursuant to section 136 of the Winding‑up and Restructuring Act (Canada).

Part 58
Rules as to Practice and Procedure in Controverted Elections Under the Local Authorities Election Act

Court of Queens Bench practice

813   The practice upon proceedings under the Local Authorities Election Act, where not provided for by the Act shall be governed by the practice for similar proceedings in the Court of Queen’s Bench.

AR 390/68 s813;338/83;155/84

Costs

814   The costs to be allowed for the proceedings shall be those allowed under Part 47.

AR 390/68 s814;338/83;101/99

Forms

815   The following form or forms to the like effect shall be used:

Forms

I.  Title

All proceedings shall be intituled as follows:

In the Court of Queens Bench of Alberta
Judicial District of .........................
In the matter of a controverted election pursuant to the Local Authorities Election Act.

A.B. ...................................., Applicant

VS.

“C.D. (the person whose election is contested).

Respondent.”

II.  Recognizance

(Formal part as above)

           We, A.B. (the Applicant) and E.F. and G.H. (the sureties) acknowledge that we owe our Sovereign Lady the Queen, her heirs and successors, the following sums, viz.:  I and the said A.B. the sum of $200 and we the said E.F. and G.H. each the sum of $100 of good and lawful current money of Canada upon the condition hereinafter stated:

           Whereas the said A.B. has made application for leave to serve a notice of motion in the nature of a quo warranto upon C.D., a member of the elected authority of ....... to determine the right of the said C.D. to his seat as such member; If, therefore, the said A.B. do prosecute the said motion with effect and do pay to the said C.D. any costs which may be adjudged to him against the said A.B. then this recognizance to be void, otherwise to stand in full force and virtue.

Taken and acknowledged before me this ...........................day of ................................., 20......

                                      (Judge or Commissioner, as the case may be.)

           I, E.F., one of the sureties named in the foregoing (or annexed, or as the case may be) recognizance, make oath and say:

           That I am possessed of property situate in the Province of Alberta which is not exempt from seizure under the Civil Enforcement Act of the value of at least ........................ dollars over and above what will pay all my just debts and all other sums for which I am surety.

Sworn before me at the ...................
of ............................. in the Province
of Alberta this ................................
day of ..............................., 20......
.......................................................
A Commissioner &c.

AR 390/68 s815;338/83;155/84;277/95

Part 60
Rules Pursuant to Section 424 of the Criminal Code with Respect to Mandamus, Certiorari, Habeas Corpus and Prohibition

Civil rules apply

825   For the purposes of this Part, the Rules in civil cases mutatis mutandis, apply in all matters not herein provided for.

AR 390/68 s825

Order issues in place of writ

826   An order in the nature of mandamus, prohibition, certiorari or habeas corpus may be granted upon application by notice of motion returnable before the court or before the Appellate Division.

(2)  The writs of mandamus, prohibition, certiorari and habeas corpus shall not be issued, but all necessary provisions shall be made in the order.

AR 390/68 s826

Service of notice of motion

827(1)  The notice of motion shall be served upon every person who appears to be interested or likely to be affected by the proceedings.

(2)  The court may require the notice of motion to be served upon any person not previously served.

(3)  Where it is sought to quash a conviction, order, warrant or inquisition, the notice of motion shall also be served at least seven days before the return date thereof

                                 (a)    upon the Attorney General, and

                                 (b)    upon the magistrate, justice or justices making the conviction or order or issuing the warrant or the coroner making the inquisition.

(4)  Any person not served with the notice of motion may show that he is affected by the proceedings and thereupon may be permitted to take part in the proceedings as though served.

AR 390/68 s827

Appeal

828   An appeal lies from the order of the court to the Appellate Division.

AR 390/68 s828

Power of a judge

829   Any direction required to give effect to an order of the Appellate Division may be made by a judge of the Appellate Division.

AR 390/68 s829

Certiorari

Motion within 6 months

830   A notice of motion for an order in the nature of certiorari shall be filed and served within six months after the conviction, order, warrant or inquisition to which it relates.

AR 390/68 s830

Endorsement

831(1)  Upon the notice of motion for an order in the nature of certiorari shall be endorsed a notice in the following form addressed to the magistrate, justice or justices, coroner, or officer or clerk, as the case may be.

                                          “You are hereby required forthwith after service hereof to return to the clerk of the Supreme Court at ................. (as the case may be) the conviction (or .......................... as the case may be) herein referred to together with the information, evidence and exhibits filed, if any, and all things touching the matter as fully and entirely as they remain in your custody, together with this notice.

                                          “Date .....................................

                                          “to A.B. magistrate at .....................................
(or as the case may be).

                                          “Signed) C.D. ..........................................
        Solicitor for the Applicant.

(2)  All things required by this Rule to be returned to the clerk of the Supreme Court shall, for the purposes of the application for an order in the nature of certiorari, be deemed to be part of the record.

AR 390/68 s831

Return by magistrate

832(1)  Upon receiving the notice so endorsed, the magistrate, justice or justices, coroner, officer or clerk, shall return forthwith to the office mentioned therein the conviction, order, warrant or inquisition together with the information, the evidence and exhibits filed, if any, and all things touching the matter and the notice served upon him with a certificate endorsed thereon in the following form:

                                          “Pursuant to the accompanying notice I herewith return to this Honourable Court the following papers and documents, that is to say - -

                                                  “(1)  The conviction (or as the case may be);

                                                  “(2)  The information and the warrant issued thereon;

                                                  “(3)  The evidence taken at the hearing and all exhibits filed;

                                                  “(4)  All other papers or documents touching the matter.

                                          “And I hereby certify to this Honourable Court that I have above truly set forth all the papers and documents in my custody and power relating to the matter set forth in the said notice of motion.”

(2)  The certificate has the same effect as a return to a writ of certiorari.

(3)  If the proceedings have been transmitted as required by law by the magistrate, justice or justices or coroner, to the proper officer he shall in lieu of the certificate above set out certify to the fact of the transmission together with the date thereof.

(4)  If the proceedings have not been received by the officer to whom or the clerk of the office to which they are by law required to be transmitted, that officer or clerk shall return a certificate of the fact.

(5)  The court may dispense with the return of the evidence or exhibits or part of them.

(6)  A copy of this Rule shall appear upon or be annexed to the notice of motion served upon the magistrate, justice or justices, coroner, clerk or officer from whom the return is required.

AR 390/68 s832

Application by Crown

833   Notwithstanding Rules 826 to 831, the court on ex parte application by the Crown may quash a conviction, order, warrant or inquisition.

AR 390/68 s833

Mandamus

Affidavit

834   No order in the nature of mandamus shall be granted unless at the time of application an affidavit is produced by which some person deposes upon oath that the application is made at his instance as prosecutor and the name of that person shall appear as the person at whose instance it is made.

AR 390/68 s834

Immunity

835   No action or proceedings shall be commenced or prosecuted against any person in respect of anything done in obedience to an order in the nature of mandamus issued by the court or any judge thereof.

AR 390/68 s835

Effect of order

836   The order or judgment may compel the performance of the duty forthwith or upon the expiration of a fixed time or subject to specified terms.

AR 390/68 s836

Habeas Corpus

Order for discharge of prisoner

837   On the argument of a motion for an order in the nature of habeas corpus the court may direct an order to be drawn up forthwith for the prisoner’s discharge, which order is a sufficient warrant for any gaoler or constable or other person, for his discharge.

AR 390/68 s837

Coming into force

838   These rules shall come into force on the 1st day of September 1968 on which date the Rules of Practice with respect to mandamus, certiorari, habeas corpus and prohibition heretofore in force cease to be in force without prejudice to any proceedings under the said Rules which may have been taken prior to the 1st day of September 1968.

                                                                                      S. BRUCE SMITH
                                                                             Chief Justice of Alberta

                                                                                  G.F. BUTTERWICK
                                                                               Registrar at Calgary of
                                                                              The Appellate Division.

   These Rules with respect to mandamus, certiorari, habeas corpus and prohibition above set out and attested by the Chief Justice of the Province of Alberta and by the Registrar at Calgary of the Appellate Division of the Supreme Court of Alberta have been made by the Appellate Division of Alberta with the concurrence of the majority of the judges thereof present at a meeting called for the purpose held in Calgary on the 5th day of June, 1968 pursuant to section 424 of the Criminal Code.

                                                                        S. BRUCE SMITH   C.J.A.
                                                                                     J.M. CAIRNS   J.A.
                                                                                  M.M. PORTER   J.A.
                                                                                 H.G. JOHNSON   J.A.
                                                                                     E.W.S. KANE   J.A.
                                                                              N.D. McDERMID   J.A.
                                                                                       G.H. ALLEN   J.A.

   These Rules with respect to mandamus, certiorari, habeas corpus and prohibition above set out and attested by the Chief Justice of the Province of Alberta and by the Registrar at Calgary of the Appellate Division of the Supreme Court of Alberta have been made by the Trial Division of the Supreme Court of Alberta with the concurrence of the majority of the judges thereof present at a meeting called for the purpose held in Calgary on the 6th day of June, 1968 pursuant to section 424 of the Criminal Code.

                                                                       C.C. McLAURIN   C.J.T.D.
                                                                                 NEIL PRIMROSE   J.
                                                                            PETER GRESCHUK   J.
                                                                                           H.W. RILEY   J.
                                                                                   J.V.H. MILVAIN   J.
                                                                                    M.E. MANNING   J.
                                                                                       W.J.C. KIRBY   J.
                                                                                    A.M. DECHENE   J.

                                                                                     M.B. O’BYRNE   J.
                                                                                H.J. MacDONALD   J.

                              Can. Gaz., 13 July, 1968, Alb. Gaz., 15 July, 1968

AR 390/68 s838

Parts 61 and 64, Schedules A, B, C and E and Judicial District Boundaries   Repealed AR 124/2010 s15.14.