“Applicant” is the individual submitting an application, and “respondent”is the person against whom an application is made. The respondent who has been served with a Notice of Application need not file a “defending” document because, there is no statement of defence in an application. The respondent has to serve and file a Notice of Appearance and a factum. Besides, if according to him or her the applicant’s application record, once served on the respondent, is incomplete, the respondent can serve on every other party a respondent’s application record. In an application, witnesses can be examined or cross-examined, but there is no documentary discovery or examination for discovery in an application.
The judge, and not a jury, hears an application. Oral evidence by witnesses on an application are very rare. Actually, the evidence, on which the argument of the application is based, consists of affidavits and transcripts of examinations and cross-examinations of witnesses that were conducted out of court and not in the presence of a judge. Once it is commenced, an application is heard and disposed of within a few weeks (or days, if it is urgent) or some months, at the most.
If it is authorized by a statute, a proceeding may be brought by way of application, rather than by way of action. For example, a proceeding can be commenced by application under one of the following statutes:
- Conveyancing and Law of Property Act;
- Evidence Act;
- Land Titles Act;
- Mortgages Act;
- Residential Tenancies Act;
- Vendors and Purchasers Act;
- Business Corporations Act (Ontario);
- Canada Business Corporations Act;
- Securities Act; and
- Bankruptcy and Insolvency Act.
Likewise, where the Rules of Civil Procedure (Rules) authorize it, a proceeding can also be brought by way of application, rather than by way of action. For example, the Rules authorize the commencement of a proceeding by application for the administration of the estate of a deceased person, or for the execution of a trust; for partition or sale of land under the Partition Act; for approval of the sale, mortgage, lease, or other disposition of property of a minor; and the like.
Yet another Rule authorizes the commencement of a proceeding by application where the relief claimed in the proceeding is for: the opinion, advice, or direction of the court on a question affecting the rights of a person concerning the administration of the estate of a deceased person, or the execution of a trust; an order directing executors, administrators, or trustees to do or abstain from doing any particular act concerning an estate or trust for which they are responsible; the removal or replacement of one or more executors, administrators, or trustees, or the fixing of their compensation; the determination of rights that depend on the interpretation of a deed, will, contract, or other instrument, or on the interpretation of a statute, order-in-council, regulation or municipal by-law or resolution; and things like that.
The so-called “basket clause/rule”, can be used to bring in an application in respect of any matter where it is unlikely that there will be any material facts in dispute.
If the judge during the hearing of an application feels that there are material facts in dispute, then the judge can direct a trial of the issue and the proceeding can continue as an action, in whole or in part.
The reason behind it, is that when material facts are in dispute, the resolution of the dispute will require an assessment of how truthful the witnesses are and evidence is. It is difficult to do so in an application, where the judge cannot see the witnesses or hear them giving evidence orally.
There are Practice Directions on the filing requirements and the conduct of applications. These are published in the Ontario Reports, and are mandatory readings before commencing an application. The commercially available consolidated and annotated versions of the Rules also contain these Practice Directions.
Date of Hearing
If it is felt that the hearing will be more than two hours long, a hearing date must be obtained from the registrar before the Notice of Application is served. Otherwise, it can be dispensed with if the application is urgent and a satisfactory date cannot be obtained. Then the application can be brought on for hearing on any day when a judge is sitting for the hearing of applications.
Application Record and Factum
The applicant must serve on every respondent who has served a Notice of Appearance an application record and a factum, at least four days before the hearing of an application.
The factum is to be a concise argument of the facts and law relied on by the applicant. The record and factum must be filed, at least two days before the hearing, with the register, together with proof of service to all the respondents.
No Summary Judgment or Determination of Law
An application does not give summary judgment. Nor does it determine a point of law under ahead of a hearing. As an application is summary in nature, the respondent has to argue the points in the hearing of the application, rather than on a preliminary motion, as in an action. To decide on how to strategically deal with application-eligible claims and remedies please contact the lawyers at Levy Zavet PC.