Motions: Overview, Notice, and Jurisdiction

Motions Overview

• Motions are mini-proceedings used to obtain relief, such as injunctions or security for costs
• They can compel cooperation from another party

Notice of Motion (Form 37A)

• A motion needs a notice of motion, unless it's unnecessary
• A notice of motion informs other parties about bringing a motion, the relief sought, and the grounds

Jurisdiction to Hear a Motion

• A judge has the power to hear any motion
• Motions are heard before a judge or associate judge unless certain exceptions apply
• Exceptions include cases where a statute or rule expressly confers power on a judge, setting aside/amending a judge's order, matters related to judicial review, or appeals
• A registrar can grant relief sought on motion for order of consent if it deals with uncontested matters, by consent of all parties, with no disability, and to amend certain documents

Where Motions are Brought

• Motions should be brought in the county where the proceeding started or was transferred to

To Whom Motions are Made

• If the court falls under an associate judge or registrar's jurisdiction, the motion is made to them
• Otherwise, the motion goes to a judge

Hearing Date for Motions

• Motions can be scheduled on any day when a judge is available, except for lengthy hearings (more than 2 hours)
• Lengthy hearings require a date from the registrar
• Urgent motions can be set down for hearing if a judge is scheduled, regardless of length

Content of Notice

• The notice must state the precise relief sought and grounds argued, including statutory provisions or rules
• Documentary evidence to be used at the hearing of motion must be listed
• Note: An affidavit includes all evidence one can pull out

Service of Notice

• Notice should be served to any party or person affected unless rules specify otherwise
• Serving all parties is a good practice, even if they're seemingly unaffected
• Service isn't needed if it's impractical, unnecessary (court order), or would cause delay/serious consequences and when trying to freeze assets quickly
• If a notice should have been served but wasn't, the court might dismiss the motion, adjourn it, or direct that any order be served on the person
• Minimum notice is seven days before the motion date

Filing of Notice of Motion

• Filing requires proof of service at least seven days before the hearing date or it can be filed at or before the hearing if there is no service

Abandoned Motions

• Motions can be abandoned by notice or by not filing/appearing at the hearing
• The responding party can be awarded costs unless specified otherwise

Material for Use on Motions

• Before the hearing, serve a motion record with proof of service to every party, then file it and proof of service in court at least 7 days before the hearing
• The contents of consecutively numbered pages should include a table of contents, notice of motion, copies of affidavits, a list of relevant transcripts, and any other material needed
• If the responding party believes the motion record is incomplete, they can serve a responding party motion record containing a table of contents and materials they'll use

Party Factum

• A party can serve a factum with a concise argument of facts and law to every other party

Moving and Responding Party Factums

• Moving Party Factum must be filed and served with proof of service 7 days before the hearing
• Responding Factum has to be filed/served by the responding party (if any) at least 4 days before the hearing

Undertakings Motion or Motion to Compel Answers

• Moving party presents usual motion materials (NOM, motion record, factum if necessary), plus undertakings and refusal chart connecting issues to pleadings or affidavit and exact words of Q
• The responding party does the same but 4 days before, to show answers provided/basis for refusal

Confirmation of Motion

• Not later than 2 pm, 5 days prior to the hearing confirmation must be given to the Registrar (Form 37B)
• Email to the court or leave it at the court and email a copy to the other parties
• If confirmation hasn't been sent to the responding party, they can give the registrar a confirmation of motion (Form 37B) by sending it by e-mail or leaving it at the court office and sending a copy to the moving party by e-mail no later than 10 am 4 days before the hearing
• Confirmation status, and changes should be updated
• No confirmation means the motion is abandoned unless the court says otherwise
• If abandoned, the responding party might be heard on costs

Hearing in Absence of Public

• Hearings can occur without the public when there's no oral argument, urgency makes it impractical, using telephone/video conference, pre-trial/case conference, or the motion is before a single appellate court judge

Hearing without Oral Argument

• If it is on consent, unopposed, or without notice, the motion may be heard in writing
• File consent and a draft order with the notice of motion
• In unopposed motion, the responding party's notice stating they do not oppose, plus a draft order must be filed with the notice of motion
• Moving party can suggest hearing the motion without public in NOM, with at least 14 days' notice, and instantly file motion record, draft order, factum
• Respond within 10 days after being served and file consent, notice not opposing, motion record/notice agreeing to written determination/factum, or notice of intent to make oral argument with materials

Disposition of Motion

• At the hearing, the presiding judge or officer can grant the relief sought, dismiss/adjourn the motion partially/fully, with/without terms
• They can order placement of the proceeding on a speedy trial list (for actions) or set the hearing time/place (for applications)
• A judge can convert a motion into one for judgment or order trial of an issue, adjourning the motion

Setting Aside, Varying, or Amending Orders

• A party affected by an order without notice, fails to appear, may motion to set it aside using notice of motion served immediately after order attention, naming the first available hearing date >= 3 days after service
• The court might set aside/vary order on just terms after motion, or a motion under subrule to set aside, vary or amend an order of a registrar can be made to a judge/associate judge per rule 37.03
• Motions under subrule or any rule to set aside, vary, or amend a judge's order may be made to the judge who made it or any other judge per rule 37.03

Motions in Complicated Proceedings

• The Chief Justice or a designated judge may direct motions in a complex case to be heard by a specific judge, overriding standard rules

Prohibiting Motions

• A Judge can prevent a party from making further motions without leave if they are trying to delay or add to the costs of the proceeding

Motion before Commencement of Proceeding

• In urgent situations, a motion can be made before the proceeding starts if the moving party promises to start it immediately

Rule 38 Applications and Procedure

• Rule 38 outlines the process for applications, one of the two types of proceedings under civil procedure

Action vs Application

• The main reason for the two procedures (Action v Application) customizes the judicial process to the needs of a litigant
• Application does not involve parties disagreeing on facts but only on how laws are interpreted, so the process is simpler
• Action is used when parties disagree on facts and credibility must be assessed in court

Differences

• Action: Proceeds to trial with testimony, before a judge or jury
• Application: A hearing, not a trial, that generally proceeds based on written record with no live witnesses and uses affidavits

Resolving disputes

• Actions are used more often to resolve disputes because parties must proceed by way of the action unless a statue or Rule 14 provides for the commencement of an application