A “civil application” is a process for some lawsuits in Ontario. A more common process is known as a “civil action” and is discussed at this link.
This article will discuss “civil applications” and in brief the steps are as follows:
- Notice of application
- Supporting evidence by affidavit
- Notice of appearance
- Responding evidence by affidavit
- Cross-application, if any
It is possible for these steps to be incorporated into a Court order, for example by a timetable ordered by the Court at a Case Conference. Also, the parties may opt to include a mediation step, in an effort to resolve the application(s).
Before you begin a lawsuit, you might want to take a look at our litigation book called Civil Litigation D.I.Y.
Notice of Application – A civil application is started by drafting, issuing (filing with the Court) and serving a notice of application. The notice of application sets out who the parties are, when and how the application will be heard (typically in person or video conference), the relief (orders) sought, the grounds (basis) for the application and identifies the evidence (affidavits) to be relied up. You can purchase a template notice of application (Form 14E) here.
Rule 14.05(3) of the Rules of Civil Procedure sets out when an application can be used, and common instances include in relation to estates, wills, contracts, statutes, real estate, injunctions, Charter issues and when there are no material facts in dispute.
Affidavit in Support of Application – The most common format for evidence in support of an application is by affidavit, which attaches documents as exhibits. You can purchase a template affidavit here. The notice of application and all supporting affidavits are combined together into an “application record” which has an index and provides the Court with a single bound hard copy or electronic document. An application record cover, index and backpage are available for purchase here.
Notice of Appearance – A responding party to a civil application must serve and file a notice of appearance (Form 38A), a template for which can be purchased here.
Responding Affidavit – The responding party also submits its evidence in affidavit format. Again, you can purchase a template affidavit here. Any cross-application (discussed below) is combined with any responding affidavits into a responding application record. A template application record is available here.
Cross-Application – Where a responding party wants to ask the Court for an order other than a dismissal of the application and costs, it is necessary for the responding party to commence their own application, sometimes known as a “cross-application”. This is achieved by drafting, issuing and serving a notice of application (Form 14E) here. In essence, there will then be 2 notices of application and 2 Court file numbers. Having 2 Court file numbers adds some a degree of procedural headache in managing the proceeings, but generally pursuant to rule 6 of the Rules of Civil Procedure, the applications are scheduled to be heard at the same time.
Cross-Examinations – The parties are entitled to cross-examine one another on the affidavits. This takes place outside of a Courtroom but under oath or affirmation before a Court reporter who prepares (at the expense of the party ordering a copy) a verbatim transcript. The transcripts can be served and filed for use at the hearing. Our most helpful resources are the article on cross-examinations and our trial book HOW TO WINg A TRIAL.
Factums – Written factums setting out the facts, issues, law and application of the law to the facts are exchanged prior to the hearing. The applicant serves their factum first followed by the respondent.
Hearing – Oral submissions supplement the factums at a hearing before a Judge that may occur by video conference or in person. This gives the parties an opportunity to emphasize key points and respond to questions from the Judge.
Resources by a trial lawyer, available online:
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