Drafting Common Motions

In Ontario law clerks commonly draft motion materials as part of civil personal injury lawsuits. Unfortunately too many busy law clerks (and lawyers) resort to blindly following precedents when drafting motion materials. A motion drafted and brought without a thorough understanding of the Rules of Civil Procedure which govern motions and an understanding of why the motion is being brought is a motion that is likely doomed to failure.

This paper will provide an overview of the Rules of Civil Procedure (“the Rules”) which govern the bringing of motions. It will also review the purpose behind three common interlocutory motions which a law clerk may be asked to draft as part of a personal injury lawsuit.

The primary Rule which governs motions is Rule 37. Before drafting a motion a clerk should be familiar with that Rule. Some of the matters determined by Rule 37 include what materials must be filed for use on a motion and when, where and to whom a motion must be brought.

Place of hearing

Rule 37.03(1) provides that civil motions in Ontario must be brought in the county where the action was commenced or the county where the action has been transferred to pursuant to Rule 13.1.02.

Date and time of hearing

Rule 37.05 dictates that in jurisdictions where no practice direction concerning the scheduling of motions is in effect, motions may be set down for a hearing on any date on which a Judge or Master is scheduled to hear motions. For instance, in Barrie (where I practice) civil motions are heard every Tuesday at 9:30 a.m. There is no cap on the number of motions which may be made returnable on a particular Tuesday. However all motions which are expected to take longer than two hours require a special appointment. Special appointments are booked through the trial coordinator.

In busier jurisdictions, such as Toronto, the volume of motions is such that it is not practical to utilize a system such as the one in Barrie. Those jurisdictions have adopted practice directions regarding motion scheduling In Toronto the practice direction provides that motions must be booked in advance with the court office There is a cap on the number of motions which can be brought on a particular day. You should contact the local Registrar for the jurisdiction in which you are bringing the motion if you are unfamiliar with the local practice for scheduling motions in that jurisdiction.

Who is the motion to be brought in front of?

Motions may be heard by a Judge Master or Registrar. Registrars are only permitted to deal with certain consent motions in writing. The jurisdiction of the Registrar is set out in Rule 37.02(3)1

In Toronto, Ottawa and Windsor judicial officers known as Masters hear most of the interlocutory motions brought in civil lawsuits Masters are permitted to hear any motion which does not fall into one of the seven exceptions set out in Rule 37.02(2)2 These exceptions include a catchall “where the power to grant the relief sought is conferred expressly on a Judge by statute or rule”. Therefore if bringing a motion in Toronto, Ottawa or Windsor it is important to read the Rule under which your motion is being brought before determining whether the motion should be made to a Judge or Master. Examples of motions which may be made only to a Judge include motions for summary judgment (Rule 20) or motions for determination of an issue of law before trial (Rule 21).

In jurisdictions in Ontario outside of Ottawa, Windsor and Toronto there are no Masters and all motions are heard by Judges. Rule 37.02(1) sets out that a Judge has jurisdiction to hear any motion in a proceeding.

Opposed, unopposed or on consent?

Before drafting a motion a law clerk should determine how the motion is expected to proceed. Motions can proceed opposed, unopposed or on consent.

Opposed: An opposed motion means that oral argument will be required to resolve the motion. On opposed motions it is important that you write to opposing counsel and obtain a list of available dates for the motion to be argued before booking the date with the Court or serving your materials.

Unopposed or Consent: Unopposed motions are motions at which the responding party will not take a position. Consent motions are motions at which the responding party consents to the relief sought. The responding party does not usually appear on a consent or unopposed motion and it is not necessary to canvas dates with the responding party. Consent and unopposed motions are often brought in writing and can be dealt with by the Registrar in many cases.

What documents are required in a motion record?

Rule 37.10(1) sets out which documents should be included in the contents of a motion record. A motion record must contain the notice of motion, all affidavits and other material served by any party for use on the motion, a list of relevant transcripts of evidence in chronological order and a copy of any other material in the court file that is necessary for the hearing of the motion

The Notice of Motion

Rule 37.06 provides the requirements for the content of the notice of motion (Form 37A). The notice of motion shall state the precise relief sought It should state the grounds to be argued, including a reference to any statutory provision or rule to be relied on and shall list the documentary evidence which is going to be used at the hearing of the motion.

Affidavits

All evidence on a motion may be given by affidavit unless a statute or Rule provides otherwise. Rule 39 and Rule 4.06 provide the requirements for affidavits for use on a motion. If an affidavit is being used on a motion it must be served with the notice of motion and filed with proof of service at the court office there the motion is to be heard at least two days before the hearing.

An affidavit should be expressed in the first person state the full name of the deponent and if the deponent is a party, solicitor, officer, director, member or employee of a party. The affidavit must be divided into consecutively numbered paragraphs and be signed by the deponent and sworn or affirmed before a Commissioner of Oaths or Notary Public.

An affidavit for use on a motion (or application) may contain statements of the deponent’s information and belief if the source of information and the fact of the belief are specified in the affidavit3. In other words the deponent does not need to have first hand knowledge of something in order to swear to it in his or her affidavit. He or she merely needs to state the source of the information and that they believe the information to be true. This is not the case for all other affidavits sworn for use in civil proceedings. Those affidavits must be confined to statements within the personal knowledge of the deponentiv.

What timelines are involved in bringing a motion?

Rule 37.07(1) and Rule 37.10(1) provide that seven business days before the motion is heard the motion record (and any factums or briefs of authority) must be served on any party or person who will be affected by the Order sought. There are some exceptions to this Rule contained in Rule 37.07(2) and (3). However a good rule of thumb is to always to serve all parties with the motion record in order to avoid any problems at the return of the motion.

The motion record, with proof of service, must then be filed at the court office where the motion is to be heard at least seven business days before the motion takes place.

Requirements for service

When calculating time for service or filing exclude the day on which the motion is served or filed but include the date on which the motion is to be heardv. In other words if a motion is returnable on a Tuesday the motion record must be served and filed two Fridays before the motion is to be heard.

If the motion record is served personally service is effective on the day it was served. If the motion record is served by mail service is effective five business days after the documents are mailed. If the motion record is served by courier service is effective two business days after the courier is given the motion materials. It should be noted here that service by courier of motion materials on any non-party to a lawsuit or any party who is not represented by a lawyer is never an acceptable form of service.

Confirmation of the motion

Rule 37.10.1 requires that the moving party confirm the motion (using Form 37B) via fax or email to the motions office by 2:00 p.m. three business days prior to the hearing date for the motion. If the confirmation form is not filed by the deadline the motion shall not be heard.

Costs

Rule 57.03 deals with the awarding of costs of a motion. This Rule should be included in the Grounds section of all Notices of Motion if costs are or may be sought.

Other Important Rules

There are three “catch-all” Rules which should be included in most, if not all, Notices of Motion under the Grounds section. They are:

• Rule 1.04 provides that the Rules “shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”;
• Rule 2.01(1) provides that a failure to comply with the rules is simply an irregularity and does not render a proceeding a nullity; and
• Rule 3.02(1) provides that the court may extend or abridge any time prescribed by the Rules or an Order.

These three Rules can be relied on by counsel for the moving party at the return of the motion in the event that the Rules have not been strictly complied with.

COMMON MOTIONS

Rule 30.10- Production of Documents from a non-party

This is one of the most common motions brought by my office. Many documents which are relevant to a personal injury lawsuit are in the hands of persons or corporations who are not parties to the lawsuit. Examples of these documents include police files, hospital records and employment records. non-parties occasionally refuse to produce documents without a court Order citing relevant federal and provincial privacy legislation. Other non-parties simply do not bother to comply with production requests from lawyers unless they absolutely have to. Fortunately Rule 30.10 allows the Court to order production of documents from a non-party on a motion from a party.

A party often undertakes on Examination for Discovery to produce specific documents which they do not have power, possession or control over. That party then writes to the non-party asking that they provide a copy of the documents. If the documents are not produced the party will then write a second request letter to the non-party. In Ontario writing two request letters satisfies a party’s duty to make “best efforts” to produce the documents requested by an undertaking.

Once two request letters have been sent if the party who asked for the undertaking still wishes to obtain the requested documents a motion under Rule 30.10 is necessary. Rule 30.10 provides that the affidavit materials supporting the motion must satisfy the Court that the documents sought are relevant to a material issue in the action and that it would be unfair to have the moving party proceed to trial without having discovery of the requested documents. The affidavit material should include copies of all letters of request and letters of reply received. It is a good idea to try to reach the non-party by telephone to request the documents and notify them of any pending motion. It is amazing how often a non-party will ignore letters but comply with the production request if a phone call is made. You should also confirm that all request letters were sent to the correct address.

Rule 30.10(2) requires that a Rule 30.10 motion must be served personally or by alternative to personal servicevi on any non-party who may be affected by the motion. Notice of the motion must also be served on every other party in the lawsuit.

Undertakings, Under Advisement and Refusals

These motions are brought under Rule 31.06 and 31.07 and allow a party to compel an opposing party to provide answers to undertakings, improperly refused questions and questions taken under advisement on an Examination for Discovery.

Rule 37.10 (10) provides that an undertakings and refusals chart (Form 37C) must be completed by the moving party when bringing an undertakings and refusals motion. The completed chart must be served and filed with the court at least three days before the hearing of the motion. The chart must specify the issue that is the subject of the refusal or undertaking and its connection to the pleadings or affidavit. The chart should also contain the question number and a reference to the page of the transcript where the question appears and the exact words of the question.

Before an undertakings and refusals motion can be brought a copy of the transcript of the Examination for Discovery should be ordered. Once the transcript is received a letter should be sent to the opposing party enclosing a completed undertakings and refusals chart. The letter should ask that the opposing party provide answers to the undertakings and refusals by a particular date. If the opposing party fails to meet the deadline a further letter should be sent. Copies of those letters should be included as exhibits to the affidavit sworn in support of any subsequent motion. By following this practice a party will be able to demonstrate to the court that best efforts were made to obtain the answers from opposing counsel voluntarily and that the motion was necessary. Inclusion of the request letters will provide counsel for the moving party with a strong argument that an award for costs should be made against the opposing party for failure to comply with their obligations under the Rules.

Motion to Amend Pleadings

A motion to amend pleadings is brought under Rule 26. Rule 26.01 states that “on motion at any stage of an action, the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment”.

If the amendment is not seeking to add, substitute or delete a party and is being sought before pleadings in the action are closed (10 days after the filing of the last Statement of Defence) the amendment can be made on requisition to the Registrar. No motion is necessary to amend a pleading if the pleadings are not yet closed.

If the pleadings are closed but all parties consent to the proposed amendment the amendment can be made by filing a copy of a signed consent with the Registrar. No notice of motion, affidavit or other motion material is required to amend a pleading made on consent of all parties. The Registrar will order that the pleadings be amended and issue the amended pleading.

However if the pleadings are closed and all parties do not consent to the proposed amendment then a motion must be brought. The motion is brought under Rule 26.01 and seeks leave of the Court to allow the moving party to amend its pleading. Given the expansive wording of Rule 26.01 these motions do not proceed on an opposed basis except in exceptional circumstances (e.g. the proposed amendment is vexatious, irrelevant or scandalous).

If a motion is being brought to add, substitute or delete a party the motion is brought under Rule 5 and Rule 26. Service of the motion materials on the proposed new party is recommended but not required if the limitation period has yet to expire. On a motion to add or substitute a party it is necessary to satisfy the Court that the presence of the new party is necessary to enable the Court to adjudicate effectively and completely on the issues in the proceeding.

It is my hope that this paper has helped provide you with a more thorough understanding of the Rules which govern motions. By ensuring that you have an understanding of the Rules governing a particular motion and how that motion fits into the lawsuit as a whole you will be much more likely to draft a successful motion at first instance. By drafting a successful motion at first instance you will avoid having to do additional work later on and will help ensure that the lawsuit runs smoothly from beginning to end.

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1. Jurisdiction of Registrar
(3) The registrar shall make an order granting the relief sought on a motion for an order on consent if

• the consent of all parties including the consent of any party to be added deleted or substituted is filed
• the consent states that no party affected by the order is under disability and
• the order sought is for
  • amendment of a pleading notice of application or notice of motion
  • addition deletion or substitution of a party
  • removal of a solicitor as solicitor of record
  • setting aside the noting of a party in default
  • setting aside a default judgment
  • discharge of a certificate of pending litigation
  • security for costs in a specified amount
  • re attendance of a witness to answer questions on an examination,
  • fulfillment of undertakings given on an examination, or
  • dismissal of a proceeding with or without costs. O. Reg. 19/03,s. 8

2. (2) A Master has jurisdiction to hear any motion in a proceeding, and has all the jurisdiction of a Judge in respect of a motion, except a motion

• where the power to grant the relief sought is conferred expressly on a Judge by a statute or rule;
• to set aside, vary or amend an order of a Judge;
• to abridge or extend a time prescribed by an order that a Master could not have made;
• for judgment on consent in favour of or against a party under disability;
• relating to the liberty of the subject;
• under section 4 or 5 of the Judicial Review Procedure Act; or
• in an appeal. R.R.O. 1990, Reg. 194, r. 37.02(2)

3. Rule 39.01(5)

4. Rule 4.06(2)

5. Rule 3.01(1)(a)

6. Under Rule 16.03