A proceeding within a proceeding, that is how a motion is defined. With a view to decide issues arising between parties, this subsidiary step is taken within an action or an application. An Interlocutory Injunction and a Certificate of Pending Litigation are common examples of what is sought by way of a motion. “Moving party” is the person who makes a motion while “responding party” is the one against whom it is made. Some motions terminate the dispute between the parties completely before a trial or hearing even takes place, or dispose of a significant chunk of the dispute making the trial or hearing considerably shorter and much less costly. However, care should be taken while taking up a motion because there is a possibility of an adverse cost award on a motion with costs payable forthwith to the other side. There is a case management system under rule 77 (of the Rules of Civil Procedure) applying to most actions and applications commenced in the City of Ottawa, and Essex County. From December 31, 2004, civil cases in the City of Toronto were no longer assigned automatically to case management under rule 77, but a modified form of case management is applied as and when is necessary.
Practice Directions for Motions
Practice Directions for the filing requirements and the conduct of motions are in effect in some places, and are published in the Ontario Reports. These are to be consulted before bringing a motion. They are also provided in the commercially available consolidated and annotated versions of the Rules of Civil Procedure (Rules). As local practice concerning motions vary from centre to centre, it has to be confirmed by the local registrar of the Court office. Though regarded often as being “interlocutory,” meaning “within the litigation”, a motion sometimes can be brought before commencement of a proceeding. An example of this is a motion for leave (ie. consent) to commence a derivative action under the Ontario Business Corporations Act.
Notice of Motion
A motion is made by giving a Notice of Motion stating the:
- precise relief sought;
- the grounds to be argued, including a reference to any statutory provision or rule to be relied on; and
- the documentary evidence to be used at the hearing of the motion.
It has to be served on any person or party who will be affected by the order sought. If the court feels that the Notice of Motion has not been properly served, it can:
- dismiss the motion completely; or
- dismiss it only against the person who was not served; or
- adjourn the motion and direct that the Notice of Motion be served on the person who was ignored; and
- direct that any order made on the motion be served on the person who was ignored.
Anyway, there are motions which do not require notice. It is an accepted practice not to issue notice for motions to extend the time to issue a third party claim, or to add a party to a proceeding. Regardless of whether or not notice was given, a motion has to be heard in the county in which the proceeding was commenced, or to which it has been transferred. When complicated issues are decided or where there are two or more proceedings involving similar issues, all motions are to be heard by a particular judge. Parties are to make a written request to the Regional Senior Judge in their respective judicial region(s) to have a judge appointed. The rule relating to the place of hearing of a motion is not applicable here. Generally, all motions are open to the public, but there are instances when the court has ordered the public to be excluded from a hearing because of a possibility of serious harm or injustice to any person concerned. It is an accepted practice not to bring the entire court file to the motions court, and the motions court judge usually only has the material pertaining to the motion. If the other party feels that the motion record is incomplete, he or she can serve a responding party’s motion record containing any other material to be used at the hearing of the motion.
An affidavit is a sworn, written statement containing the evidence of a witness, called the “deponent” or the “affiant”; the form, format, and content of an affidavit is standardized. Affidavits on motions are usually from the solicitor, but a corporation may submit an affidavit made by an officer, director, or employee of the corporation having knowledge of the facts required to be deposed. Deponents may be cross-examined (questioned) on their affidavits by the opposing parties. When a resident of Ontario is cross-examined, the Notice has to be served at least two days prior to the motion hearing. For a resident outside Ontario, the court may make an order about where the cross-examination is to take place, the notice period, attendance money, and such other matters.
It is not required of any party to take leave of the court so as to make a motion to a judge or master for an order prohibiting another party from making further motions in a proceeding. In that event, the judge or master on being satisfied that the other party is trying to delay or add costs to the proceeding, or otherwise abuse the process of the court through a multiplicity of frivolous or vexatious motions, may so order.
To abandon a motion, a party has to deliver a Notice of Abandonment. If the party has served but not filed a Notice of Motion, or does not appear at the hearing, it will be deemed to have been abandoned. The responding party on whom the Notice of Motion was served is, in that situation, will be entitled to the costs of the motion forthwith.
Before you proceed without a plan to sue or defend contact the lawyers at Levy Zavet PC to strategize the course of action best suited to your needs, and based on the merits of your case and the budget you can afford!