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Civil Litigation - Ex Parte Motions'Ex parte' refers to a court appearance where there is no notice given to another party, for whatever reason. When you do, the law requires that any evidence provided be 'full and fair'.
. Canada (Commissioner of Competition) v. Amazon.com.ca, ULC
In Canada (Commissioner of Competition) v. Amazon.com.ca, ULC (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against the denying to the Commissioner of Competition of "an order requiring the respondents to produce transaction data about certain products on their online store" (under s.11 ['Order for oral examination, production or written return'] of the Competition Act).
Here the court considers the nature of 'ex parte' hearings:[61] Section 11 applications are heard ex parte. During an ex parte proceeding, the ordinary checks and balances of the adversarial system are not operative, and the judge and the absent party are "“literally at the mercy”" of the applicant: United States of America v. Friedland, 1996 CarswellOnt 5566 (WL) at paras. 27-28, [1996] O.J. No. 4399 (QL) (Ont. C.J. (Gen. Div.)) [Friedland]. Accordingly, the applicant must "“make full, fair and frank disclosure of all material facts”", including any fact that would have been considered by the judge in deciding the issues: Canadian Security Intelligence Service Act (Re), 2021 FCA 92 at paras. 120, 127; Forestwood Co-operative Homes Inc. v. Pritz, 2002 CarswellOnt 490 (WL) at para. 26, 156 O.A.C. 359 (Ont. S.C.J. (Div. Ct.)); Ruby v. Canada (Solicitor General), 2002 SCC 75 at para. 27. This exceptional duty on the party seeking ex parte relief mitigates against the obvious risk of injustice inherent in a one-party hearing. . Misir v Misir
In Misir v Misir (Ont CA, 2017) the rule about evidence in ex parte motions is set out:[17] A party who seeks relief from the court in proceedings without notice is obliged to make full and fair disclosure of all material facts. This is a common law rule that is enshrined in rule 39.01(6). See also Sangster v. Sangster, 2003 CanLII 48248 (ON CA), [2003] O.J. No. 69 (C.A.), at para. 7. It is unnecessary to find that the court was deliberately misled before a court will set aside such an order. The basis of the rule is fairness. As the rule confirms, the failure to make such disclosure is a reason, in itself, to set aside the order made: Mariani v. Mariani, [2010] O.J. No. 1464 (S.C.); Balanyk v. Greater Niagara General Hospital, [1997] O.J. No. 4867 (C.A.).
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