This article will address frequently encountered evidentiary issues on motions and applications, how to overcome certain problems, and present properly. The following issues will be examined:

  1. Motions vs. Applications: the key differences and their role in determining the evidence that you need;
  2. How does the use of cross-examination transcripts on a motion differ from examinations for discovery in an action?
  3. Effective use of motions for directions; and
  4. Case conferences as evidence-gathering tools for motions.

1. Motions vs. Applications: The Key Differences and their Role in Determining the Evidence that you Need

There are two types of civil proceedings in Ontario: actions and applications. Generally, all civil proceedings are commenced by the issuing of an "originating process", which is defined in Rule 1.03 of the Rules of the Civil Procedure, R.R.O. 1990, Reg. 194, as amended, to include a statement of claim (by way of an action) or a notice of application (by way of an application).

This section will focus on applications, as opposed to actions, and how they differ from motions. The discussion will conclude with an examinations of their role in determining the evidence needed for each.

Applications

An "application" is defined in Rule 1.03 as "a proceeding commenced by notice of application."

An application is a form of court proceeding in which the parties' evidence is tendered by way of affidavits, followed by cross-examinations on those affidavits, and then, typically, an oral hearing based upon the written record.

There is no traditional "trial" with viva voce evidence in an application - simply argument by counsel based upon the affidavit and transcript evidence from the cross-examinations of the parties or other examinations. A Judge may, under Rule 38.10(1)(b), order that the application or any issue proceed to trial and give such directions as are just.

This is contrasted with an "action", which is also defined in Rule 1.03 to mean:

a proceeding that is not an application and includes a proceeding commenced by,

  1. statement of claim;
  2. notice of action;
  3. counterclaim;
  4. crossclaim; or
  5. third or subsequent party claim.

Generally, every proceeding shall be commenced by action unless a statute or the Rules provide otherwise (Rule 14.02).

The circumstances in which proceedings may be taken by way of application are listed in Rule 14.05. Rule 14.05(3) permits a proceeding to be brought by way of application where the Rules authorize the commencement of a proceeding by application nor where the relief claimed is,

(a) the opinion, advice or direction of the court on a question affecting the rights of a person in respect of the administration of the estate of a deceased person or the execution of a trust;

(b) an order directing executors, administrators or trustees to do or abstain from doing any particular act in respect of an estate or trust for which they are responsible;

(c) the removal or replacement of one or more executors, administrators or trustees, or the fixing of their compensation;

(d) 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;

(e) the declaration of an interest in or charge on land, including the nature and extent of the interest or charge or the boundaries of the land, or the settling of the priority of interests or charges;

(f) the approval of an arrangement or compromise or the approval of a purchase, sale, mortgage, lease or variation of trust;

(g) an injunction, mandatory order or declaration or the appointment of a receiver or other consequential relief when ancillary to relief claimed in a proceeding properly commenced by a notice of application;

(g.1) for a remedy under the Canadian Charter of Rights and Freedoms; or

(h) in respect of any matter where it is unlikely that there will be any material facts in dispute requiring a trial. R.R.O. 1990, Reg. 194, r. 14.05 (3); O. Reg. 396/91, s. 3; O. Reg. 537/18, s. 2.

Rule 38 regulates the jurisdiction and procedure on applications.

Pursuant to Rule 38.05, "[a] notice of application shall be issued as provided by Rule 14.07 before it is served."

Unlike the case with a Statement of Claim in an action, there is no requirement under the Rules for the time within which a notice of application must be served but, rather, a deadline by which it must be served. Under Rule 38.06(3), a notice of application must be served at least 10 days before the date of the hearing of the Application.

Typically, a timetable is agreed-upon by the parties or set by the Court, and the Notice of Application is included in an Application Record and served well in advance of the hearing date, so as to permit the delivery of responding materials, cross-examinations to take place, and the delivery of facta and briefs of authority in advance of the hearing date.

The material to be used on an application is set out in Rule 38.09, which requires the delivery of an application record, including the notice of application, all affidavits and other material served by any party for use on the application, a list of all relevant transcripts of evidence in chronological order, and any other material in the Court file that is necessary for the hearing (Rule 38.09(2)).

A party responding to a Notice of Application may serve a responding application record consisting of a table of contents and any material to be used by the respondent on the application and not included in the application record (Rule 38.09(3.1)).

Although there is no requirement to serve a responding application record, respondents will typically serve responding application records, which will include affidavits that respond to the evidence of the applicant(s).

Unlike the permissive language in Rule 38.09(3.1), a party responding to an application must serve on every other party, at least four days before the hearing, a responding factum (Rule 38.09(3)). Facta are required for applications.

Motions

A "motion" is defined to include "a motion in a proceeding or an intended proceeding" (Rule 1.03). Therefore, leave to commence a proceeding, where leave is required, is obtained on a motion (Rule 14.01(3)) and in an urgent case (such as an interlocutory injunction) a motion may be made before the commencement of a proceeding (Rule 37.17). Rule 9.02(1) also provides for a pre-proceeding motion to appointment a litigation administrator.

With certain exceptions, such as a Motion for Summary Judgment, a "motion" is typically the vehicle by which a party seek certain interim or interlocutory relief from the Court. A Judge has jurisdiction to hear any motion in a proceeding (Rule 37.02(1)). A Master may hear any motion in a proceeding (subject to certain exceptions, including where jurisdiction is expressly conferred on a judge) (Rule 37.02(2)).

In a complicated proceeding, all motions may be assigned to be heard by a particular judge.

Motions on Commercial List matters are dealt with pursuant to the Commercial List practice direction and are generally scheduled at a 9:30 a.m. appointment, with certain exceptions, including Motions for Summary Judgment, which are dealt with during 30 minute case conferences at 10:00 a.m. at the Court.

A motion can be made in both an action, as well as an application.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.