Monthly Archives: April 2009

Remedies to “Without Notice” Motions

Posted in: "All by Admin | No Comments Thursday, April 16, 2009

Previously I wrote about “without notice” motions, or “ex parte” motions, where only one party attends before the court and obtains relief without the other party’s participation.

As I indicated then, ex parte motions are procedurally unjust because the doctrine of procedural fairness requires that parties participate meaningfully before an impartial third party. As such, remedies are provided for orders obtained without the other party’s (or parties’) attendance.

Under the Rules of Civil Procedure, if an order is obtained without notice to the parties, the parties affected may bring a motion to set aside the order granted under the without notice motion.

However, there’s a catch to this. Once the persons affected become aware of the order in question, must act fast, meaning that the party must bring the motion on the next available hearing date. Any unreasonable delay in bringing the motion may result in its being dismissed.

Understandably, the rush can significantly stress both the party and the party’s lawyer. Because of the short time period allowed under the rules, the lawyer will likely have to pause whatever he or she is doing and attend to the motion urgently. Consequently, lawyers not specializing in civil litigation may be reluctant to take on this kind of motion. On the other hand, seasoned litigators may be used to the urgency of motions of this kind and actually welcome them.

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“Without Notice” Motions

Posted in: "All, Family Law, Legalese Dictionary by Admin | No Comments Monday, April 13, 2009

Both the Rules of Civil Procedure and the Family Law Rules provide circumstances where a litigant may bring a motion “without notice” to the other party (or parties) involved. This usually happens when there’s imminent harm to personal safety or a child’s well-being in family law cases or when notice to the other parties is impractical or impossible. In legalese, we call these ex parte motions.

While an ex parte motion may seem a convenient way to get what you want without the hassle of facing the opposing party, it’s generally seen as means of the last resort.

The principles of fundamental justice require that parties have meaningful participation in proceedings where their rights may be affected. Motions brought without notice clearly violate this cardinal rule. As such, both the Rules of Civil Procedure and the Family Law Rules allow a party not given notice to bring another motion to set aside the previous ex parte ruling.

At the latter motion, the party (or parties) not given notice to the previous hearing will have an opportunity to make submissions and address their concerns over the decision made without their involvement. The court will then decide whether the ex parte ruling should be set aside.

Therefore, bringing an ex parte motion to the court often results in two or more hearings involving the same matter, adding extra costs to all parties. As such, I generally don’t recommend ex parte motions except under rare and compelling circumstances.

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“Hobby Income” Taxable?

Posted in: "All by Admin | No Comments Friday, April 3, 2009

Note: This article does not constitute legal advice.

Many people have side jobs to supplement their income. While some may work part-time as wait staff, some earn extra money by selling things online. Are the earnings from these side sources taxable?

The Income Tax Act* (ITA)  has a set of convoluted rules that determines the answers to such questions. Generally, the earnings are taxable if they come from an office, employment, business, property or other source as specified by the ITA.

Therefore, income from a taxpayer’s second job is considered taxable since it comes from employment. Also, the definition of employment is broad enough to catch earnings not paid directly by the employer, such as commissions, tips, and gratituities.

What about money earned from selling online?

Section 248 of the ITA defines “business” as including “a profession, calling, trade, manufacture or undertaking of any kind whatever… an adventure or concern in the nature of trade.”

Therefore, whether the income is taxable depends on whether the activities undertaken can be defined as a “profession, calling, or trade.” If you’re actively purchasing merchandise and reselling it online, the money you make will probably qualify as income. On the other hand, if you’re selling personal belongings, such as old clothing and CDs, it will likely not be caught under the ITA.

*R.S.C. 1985, c.1 (5th supp.)

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