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Old 04-10-2007, 03:52 PM
dvr dvr is offline
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Default Motion To Quash The Summons Served On Ms

Thank You for the replies to my last post

This is what I plan to send to the court along with the case law Lv refered me to.
Any opinons are most welcome and appreciated

2003 CanLII 26350 (ON S.C.)

RULING ON MOTION

No.----------

IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
BETWEEN:
-----------------
Applicant/Petitioner
- and -
--------
Respondent

NOTICE
MOTION TO QUASH THE SUMMONS SERVED ON MS. -------------

1 I --------- the respondent in this case make a motion to quash the summons as an abuse of process.

2 The Applicant had a Summons served on --------- requiring her attendance at the trial of this action to give evidence and produce certain specified documents.

3 The respondent submits that the grounds for this motion are that the summons is
an abuse of process and it is contrary to the due administration of justice to require this
person, who is not a party to the divorce proceeding and who does not have relevant evidence relating to the issues in this case.

4. The summons is nothing more then a harassment of --------------; a fishing expedition or retribution for what the applicant perceives as a lack of co-operation by the respondent.

5 The trial of this action has gone on longer then anticipated.

6 Additional court time may have to be spent on the issue of this summons.


7 The service of the summons on ---------- in the particular circumstances of this case
constitutes an abuse of process and would be contrary to the due administration of justice.

8 Accordingly, I ask that the summons served on ------------ be quashed.

Background Information

9 The process server of the Applicant initially was unable to serve the summons on Ms.
---------- in September 2006.

10 As I recall My Lady stated at the September ------, 2006 court proceedings. Ms -------- would not be required to appear at that time and with held decision on whether a warrant should issue. To the best of my knowledge My lady stated that should the court decide that Ms ------- be required to appear then an order would issue.

11 The actions and circumstances underlying the issuance of the summons to
Witness clearly illustrates a course of action which is an abuse of the court process.

12 All relevant and material evidence relating to the Applicant’s claim can be adduced through the Applicant and Respondent’s own evidence as well as other witness that have relevant and material evidence to provide.

The Law

13 Rule 53.04 of the Rules of Civil Procedure compels a witness to attend at trial when
served with a Summons to Witness. The case law establishes that on a motion to quash a
Summons to a Witness, the court should consider the following:
(a) That the setting aside of a summons to witness is drastic relief
(b) That where the evidence sought to be elicited from the witness is relevant, there is
a prima facie right to require the attendance of that witness by means of a
summons to witness;
(c) That the right to summons a witness must not be exercised in such a fashion as to
amount to an abuse of process.
(See Transamerica Life Insurance Co of Canada v. Canada Life Assurance Co., (1995) 27 O.R.
(3d) 291; Canada Metal Co. Ltd. et al, v Heap et al, (1975) 7 O.R. (2d) 185.
2003 CanLII 26350 (ON S.C.)
- 4 -
14 The inherent jurisdiction of the court to quash a summons to witness must be used
sparingly. Counsel for litigants have a prima facie right to use a summons to compel the
Attendance of a witness to trial provided the right is not exercised so as to constitute an abuse of the court's process (Re: Canada Metal Pg. 191-192).


Respectfully Submitted By The Respondent

________________________________
DATE: April 11, 2007
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Old 04-10-2007, 04:21 PM
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wow dvr

It appears you have deemed their summons unto your new partner as frivolous and vexatious and nothing more than a day at the lake for them with a fishing pole in hand.

If that is the route you go, Don't forget to ask for costs of such motion on a solicitor client indemnify basis or your own costs incurred to attend the motion. Examples: loss of employment, wages, commissions, travel, and office expenses etc.

You could also refer to the specific case I posted and other cases in a book of authorities drafted for the motion. Your affidavit for said motion can refer to the book of authorities something to this effect:

I submit for the courts consideration marked as Exhibit 'X' to this my affidavit" is my case book of authorities where other Canadian Courts have ruled on similar circumstances.


You could cite each case to support in subsequent sub paragraphs with a brief summary.


I'll take a look to see what I could find and post a link if successful. It would be ideal to have cases from your own jurisdiction.


lv
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Old 04-10-2007, 05:29 PM
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dvr,

came across these:



Chandoo v. Sobeys Ontario Division, 2001 CanLII 11130 (ON L.R.B.)

http://www.canlii.org/en/on/onlrb/do...anlii11130.pdf



L.A.G. v. M.E.F.G., 2004 CanLII 49978 (ON S.C.), (Something to the effect of completing discovery in open court)


http://www.canlii.org/en/on/onsc/doc...anlii49978.pdf



Nova Scotia (Attorney General) v. Nova Scotia (Police Review Board) and Moore, 1999 CanLII 2849 (NS S.C.)

Although a commission issuing a summons against the crown, This case refers to significant other jurisprudence on the issue of summons to witness and quashing such action
...Alternatively, I find there is no link, or an insufficient link, of relevance between the evidence sought and the issue being heard. In Bowater Mersey Paper Co. Ltd. v. Nova Scotia (Minister of Finance) et al. reflex, (1991), 106 N.S.R. (2d) 416 (S.C.T.D.), Mr. Justice Tidman in dealing with an application to quash a subpoena held at p. 418 that:
If the issuer establishes a link of relevance between the proposed witness and the issue in the proceedings, he is entitled prima facie to have a subpoena issued. The burden then shifts to the attacker to show good reason, such as oppressiveness or abuse of power, why the subpoena should be quashed....
http://www.canlii.org/en/ns/nssc/doc...canlii2849.pdf


lv
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Old 04-10-2007, 07:30 PM
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dvr,

as you mentioned,

Quote:
Rule 53.04 of the Rules of Civil Procedure compels a witness to attend at trial when served with a Summons to Witness. The case law establishes that on a motion to quash a Summons to a Witness, the court should consider the following:

Make sure you refer and cite law of your jurisdiction rather than Ontario Law.



"Rules of Civil procedure" is Ontario Law

http://www.e-laws.gov.on.ca/DBLaws/R.../900194a_e.htm
COMPELLING ATTENDANCE AT TRIAL

By Summons to Witness

53.04 (1) A party who requires the attendance of a person in Ontario as a witness at a trial may serve the person with a summons to witness (Form 53A) requiring him or her to attend the trial at the time and place stated in the summons, and the summons may also require the person to produce at the trial the documents or other things in his or her possession, control or power relating to the matters in question in the action that are specified in the summons. R.R.O. 1990, Reg. 194, r. 53.04 (1).

For NS law see here:

http://www.courts.ns.ca/Rules/toc.htm

and Family

http://www.courts.ns.ca/Rules/rule_70_may_06.htm

lv
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Old 04-10-2007, 09:50 PM
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dvr,

I couldn't find any civil rules in NS jurisdiction in regards to quashing their summons to witness.

http://www.courts.ns.ca/Rules/rule28_35.htm

Out of curiosity, what rule would you be advancing your stance on.


lv
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