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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
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
Comment