This article comments on motion procedure and the steps in bringing a motion.
Note: to discuss specific trial motions, please contact Mick Hassell. Trial motions can be brought to the trial Judge on any day of trial, subject to direction, if any, from the trial Judge.
Step 1: Getting Ready
First, seek the consent of the other parties to the request you’d like to make. Ideally the other parties will consent, which simplifies the motion. They may be unopposed, which is also helpful. Only if the motion is opposed do thinks get more complicated.
If opposed, make an offer to settle the motion before work begins.
The next step is to schedule the motion. This is done by figuring out what dates are available for motions, which requires knowing whether they are before an Associate Judge or a Judge as well as how long the motion may take. An Associate Judge can and shall hear all motions unless they are only within the jurisdiction of a Judge. Long and short motions are heard on different days.
With available dates from the Court, canvass dates with the other side and then schedule a particular agreeable date with the Court.
Step 2: Drafting the Motion
For any motion, you may need:
- A motion record including a cover, index, notice of motion, affidavit, draft order and backpage.
- A factum and brief of authorities.
- A confirmation to confirm the motion by 2 pm at least 3 business days in advance (excluding Court holidays).
- A costs outline.
Step 3: Serve and File
The motion record is served and filed. In some jurisdictions such as Toronto, the notice of motion must be served and filed within 10 business days to preserve the hearing date. Filing requires a copy of the motion materials, an affidavit of service and the Court’s fee payable to the “Minister of Finance” for $339 (as of January 1, 2023).
Step 4: Cross-Examinations
In ordinary procedure actions, but not simplified procedure actions, there is an opportunity to cross-examine on affidavits. This generates a transcript that must be served and filed.
Step 5: Factum and Brief of Authorities
Factums are recommended for all motions and required on many types of motions. They must be served and filed. They are a great opportunity to provide a written argument in advance of the hearing.
Step 6: Confirmation
Motions must be confirmed by 2 pm at least 3 business days before the motion. Otherwise they are treated as abandoned.
Step 7: The Hearing
Each side gets to present oral argument, which is an opportunity to emphasise key points in the written materials (evidence, factum, law) and address any questions the Court may have.
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