Home
Covid-19 Update
Rules of Procedure
Forms
Guide to Preparing Your Affidavit
Guide to Virtual Hearings
Contact Us

Motion

A motion is a request made by a party to the Tribunal to make a decision on a preliminary or procedural issue. A motion can be presented at any time during an existing proceeding. In a motion, the party filing the motion is the moving party and the other parties are the responding parties.

 

  • Common examples of requests made by motion include:
  • Requesting a temporary order,
  • Determining the manner in which to serve documents,
  • Challenging the jurisdiction (or authority) of the Tribunal to hear the matter,
  • Requesting a change in the location of the hearing,
  • Requesting an adjournment of the hearing date, or
  • Requesting a change in the timeframes specified under the Rules of Procedure.

Bringing a Motion

To bring a motion, you must prepare a Notice of Motion (Form 5).

 

The Affidavit is used to present evidence to the Tribunal in a motion because the testimony (evidence) of witnesses is typically not required. If you intend to present evidence in support of your motion, you should prepare an Affidavit (Form 9). For more information on preparing an Affidavit, please consult the section called “Assistance for Preparing an Affidavit” below.

 

You may also want to prepare a Statement of Position (Form 13), which sets out your arguments in support of your motion. Although the Statement of Position is not mandatory, it helps the hearing panel and the other parties understand your arguments.

 

Once you have completed your Notice of Motion, any supporting Affidavits, and your Statement of Position, if you prepared one, send them to the Registrar of the Tribunal. You should do so as soon as possible to avoid unnecessary delays in the proceeding. The Registrar returns a filed copy to you and the other parties unless the motion is brought without notice.

Motion Without Notice

Your motion can be brought with or without notice to the other parties. Typically, a motion must be brought with notice, which means it is served upon the other parties to allow them to respond. In certain exceptional circumstances, a motion may be brought without notice, in which case it is not served upon the other parties, such that they are not entitled to respond. A motion without notice is only permitted in the following circumstances:


  1. such a motion is permitted by financial and consumer services legislation,
  2. the nature of the motion renders service of a Notice of Motion impractical or unnecessary,
  3. the circumstances render service of a Notice of Motion impractical or unnecessary, or
  4. the delay necessary to carry out service might entail serious consequences.

Responding to a Motion

If you have been served with a Notice of Motion (Form 5), you can respond to the motion by any or all of the following means:

 

  • by providing evidence, either in support of or in opposition to the motion, in an Affidavit (Form 9),
  • by providing written arguments, either in support of or in opposition to the motion, in a Statement of Position (Form 13), and
  • by attending the hearing, if any, and presenting your arguments.


For more information on preparing an Affidavit, please consult the section called “Assistance for Preparing an Affidavit” below.

 

Once you have completed your Affidavits and your Statement of Position, if any, send them to the Registrar of the Tribunal within the deadline for filing. The Registrar returns a filed copy to you and the other parties.

Moving Party's Response to Respondent's Documents

Where the responding party provides Affidavit evidence, the moving party may provide Affidavits in response. These Affidavits in response must be filed no later than five days from the date of receipt of the responding party’s Affidavits. The Registrar returns a filed copy to all the parties.

Assistance for preparing an Affidavit

The Affidavit is a written statement that contains important facts you want to share with the Tribunal. You swear an Affidavit under oath or affirm it before a commissioner of oaths. Swearing an Affidavit means taking an oath to tell the truth on a holy book, such as the Holy Bible. Affirming means stating that you will tell the truth. When signing an Affidavit, you promise that the information contained in the Affidavit is true. False statements in an Affidavit constitute perjury which is a serious offence.

 

Please consult the Guide to Preparing Your Affidavit for more information and tips on preparing an Affidavit.

Hearing & Decision

The hearing panel will determine whether the motion will be heard by oral hearing or written hearing.

 

Setting the Hearing Date

Where an oral hearing is required, the Registrar will issue a Notice of Hearing of Motion setting out the location, date and time of the hearing. If the motion is heard by written hearing, the hearing panel will receive the motion materials.

 

Open to the Public

Oral hearings are generally open to the public. If you have concerns about your privacy or that of your witnesses, you may request a private hearing. You will have to show the Tribunal that the safety of the public or the risk of harm, injustice or hardship to any person outweighs the benefits of public access to the hearing. For more information, please see the Tribunal's Privacy Policy or contact the Registrar of the Tribunal


Conduct of the Hearing

A motion is typically heard by a hearing panel composed of a single Tribunal member. However, in certain circumstances, a hearing panel composed of three members will hear the motion. The hearing of a motion usually follows the outline set out below:

  • Welcome: The hearing panel enters the hearing room and introduce themselves.
  • Moving Party’s Arguments: The person who brought the motion presents their arguments.
  • Responding Party’s Arguments: The other party presents its arguments.
  • Conclusion and Decision: The hearing panel indicates whether the decision will be given that day or sent to the parties at a later date.

Appeal a Decision of the Tribunal

If you disagree with the Decision of the Tribunal, you may have the option of appealing it or seeking a judicial review.

 

Final decisions of the Tribunal may be appealed to the Court of Appeal with permission (leave) of that Court. The deadline for filing an application for leave to appeal is 30 days from the issuance of the Decision. Section 48 of the Financial and Consumer Services Commission Act, S.N.B. 2013, c 30 sets out the appeal process.

 

You may also be able to seek a judicial review of the Decision of the Tribunal. For more information on judicial review, please consult Rule 69 of the New Brunswick Rules of Court.

© 2020 | Financial and Consumer Services Tribunal