Civil Proceedings in Ontario – Action vs. Application [video]

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A civil proceeding in Ontario can be commenced by an application or an action. Claimants have to make this selection at the outset – before they file their case with the Superior Court of Justice. This lecture explains the fundamental difference between the two.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.

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Welcome everyone this is Amer Mushtaq from You Counsel. You can commence a civil proceeding in Ontario in one of the two ways. You can either commence a court action or you can commence an application. What are the differences between the two? In what circumstances do you commence a court action and in what circumstances do you commence an application? That’s today’s topic and will explain that in basic simple terms, so, you can get a good understanding of whether you should commence a court action or an application with respect to your specific civil dispute.

As always, we commence with the disclaimer that this course is not legal advice so, if you have any specific questions you must contact a lawyer or a paralegal.

Now, civil proceedings in Ontario, are governed generally by two legislations, The Course of Justice Act and the Rules of Civil Procedure. The Rules of Civil Procedure are essentially regulations made under the Courts of Justice Act, both of these legislation are available online you can Google them and review these.

So what is an action? In order for us to find out what an action is, the best place to look at is the Rules of Civil Procedure itself and see how the rules have defined an action, so let’s go to Google and type in, “Rules of Civil Procedure”. We go to the CanLii website which is the most common that I use, but you can go to the government website and look at that. So, we are at, Rules of Civil Procedure and you want to know the definition, so, lets say we type in “action” to look for the definition. And Rule 1.03 Sub 1 is the rule that provides definitions of various terms that are used within the Rules of Civil Procedure, so you understand what is the context of that specific term … how is that used … how is that interpreted within the rules. So, here we have the term action, action means a proceeding that is not an application and includes a proceeding commenced by a statement of claim, notice of action, counterclaim, cross claim, or a third, or subsequent party claim.

So, there are two components here, action is a proceeding, which is not an application. Okay, so we want to understand now what is meant by the term, “Proceeding”, let’s look at that … and then the second component we want to understand is what is an Application? Because the way the action is defined is an exclusionary way, what is not an Application, and is a Proceeding is an action. So let’s look at what is a Proceeding.

To look for the definition of proceeding, again, if we go into Rules of Civil Procedure and type in the word, “proceeding” and let’s see if that word is defined in the rules. There you go, proceeding means an action or application. So, in simple words, an action or an application when that’s commenced, that’s called the proceeding, that doesn’t help us too much. Let’s look at the definition of what is an Application and maybe that will help us figure out what is an Application and therefore, what is not an Application and is a Proceeding, will be an action.

So, let’s look for the word Application. Go all the way to the top, so, that we don’t miss out on any definition, type in “application” and we go down to Rule 1.03 Sub 2, and it defines applications. Application means a proceeding commenced by notice of application. Not much of a help, you can’t figure out what is an application it’s something that is commenced by notice of application, so I think we need to figure out what a notice of application is and how do we get there and see if we can understand better the definition of application.

I have already sort of expedited the process … it is defined in Rule 14.05, so, let’s see if we can get to Rule 14.05 and see if we can get an answer here. Rule 14.05 titled Notice of Application and clause Sub 1, provides some information but if we scroll down in 14.05 Sub 2, it says application under statute, a proceeding may be commenced by an application to the Superior Court of Justice or to a judge of that court if a statute so authorizes. So, what this means is, if you’re dealing with a specific statute and that statute says that the rights under that statute or any remedies that you want under that statute can be obtained by commencing an application, then you have that right to commence an application. So, that is specifically under the statute.

Now, look at application under rules which is 14.05 Sub 3, and it has a number of categories and we’ll briefly go over these categories to give us a sense of what maybe an application. A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application aware the relief claimed is, and so what is it that you’re asking from the court? In an application, you’re asking for the court the opinion advice or direction of the court on a question affecting the rights of a person in respect of the administration of the state of a deceased person or the execution of a trust. In broad terms, what it is saying is if you are asking the court to give opinion, advice, or direction on the rights relating to an estate matter or a trust, then you can commence an application.

Second Sub B, Sub C, Sub D they’re all sort of related if you notice Sub B it say’s an order directing executors administrators or trustees to do certain things or not to do certain things with respect to an estate or trust. So, if you have to get any orders with respect to the administration of the estate to where it’s the executors, administrators, or trustees you again, bring an application. Removal of trustees, appointments, replacement, you do that by way of an application. And then determination of rights that depend on the interpretation of a deed, will, contract, or other instrument or on the interpretation of a statute, order and council regulation our municipal by-law or resolution. So, there are very specific examples or situations in which you can commence an application, first we have covered that mostly the matters that relate to an estate or a trust are dealt with by way of an application. If you are dealing with the interpretation of a statute, you go and bring an application order and council, municipal by-laws, regulations, and resolutions. And then this one is important interpretation of a deed, will, contract, or other instrument. So if there is an instrument, an instrument as you know in broad terms is a document either a contract or any other document that has been drafted and you want the court to interpret it in terms of legal terms and then you can bring an application.

Sub E is the declaration of an interest in or charge on land including the nature and extent of the interest or change or the boundaries of the land or settling of the priorities of interest or charges. So, these are sort of charges on land that can be dealt with by way of an application.

The approval of an arrangement or a compromise, or the approval of a purchase, sale, mortgage, lease or variation of trust. Again, something relating to trusts. Then injunctions, mandatory orders, declaration, appointment of receivers these are sort of, in the bankruptcy proceeding or restructuring proceeding and what not. And this one is important if you’re seeking any remedy under the Canadian Charter of Rights and Freedoms then that’s done by way of an application.

And the last one is most important in respect of any matter where it is unlikely that there will be any material facts in dispute. So those matters where material facts are generally not in dispute can be dealt with by way of an application.

So, those are sort of specific examples and each example, each sub rule may be a bit complex in terms of its interpretation, but speaking generally, what you want to understand is that state matters are dealt with through an application, trust matters through an application, interpretation of an instrument and that could mean, I’ll give you an example … let’s say in an employment law context that there is an employment contract both parties agree that this is the contract, both parties agree that the language of the contract is what they are agreeing to. So, everything about the contract this is not in dispute they’re agreeable, but the issue is where parties differ is how they interpret a specific clause. One party believes reading the language of that specific clause that the interpretation is ‘A.’ The other party believes that, “no” reading the same language the interpretation is ‘B.’ So, who has the authority to decide which interpretation is correct? It’s the court. So, what you can do is bring an application to the court and say we don’t have a dispute about the contract or what’s stated in the contract, but we have a dispute about its interpretation so, we’re bringing an application and you the court, you the judge, can tell us which interpretation you agree with and then we will accept that position and you’re bound by that position. So, that could be done by way of an application and the larger part that you want to keep in mind is that an application facts are mostly undisputed, even if they are disputed in the state matters, there are a lot of facts disputed but it’s you know, it’s how the process proceeds how this application proceeds and the court system decides how those disputed facts are dealt with. And then as I said if the, if a specific statute allows you to bring an application then you should bring an application.

So the question what arises in your mind why the difference, why do we have to have an application, and why do we have an action? Why can’t we have one thing and if there is no facts in dispute, then the judge just basically interprets whatever needs to be interpreted, and if there are facts in dispute then you know, we go in a different direction.

And the answer, I mean there may be a number of answers, but the one that I can provide is that the manner in which a court action is dealt with is different than the manner in which an application is dealt with. Why? Because in an action, ‘A’ there are facts in dispute so the judge has to do two things. One the judge has to look at all the evidence, listen to all the witnesses, and then decide which version of the facts the judge believes the judge agrees with. So, there’s a dispute between the facts and the judge has to choose one of the many options in terms of the facts. And once that determination is made, then the judge applies the law on those set of facts and then provides his or her judgment.

So, an action goes through a number of steps and we have a separate lecture, which summarizes what are the steps in an action. But there’s a discovery process, there’s a mediation process, then the parties have to go to trial. If there are witnesses they have to provide oral testimony called Viva voce evidence and then there’s examination, cross-examination and all of that and then the evidence, the documentary evidence is presented. So, the whole trial takes place, which is sort of a lengthy process for a judge to be able to decide which party is right and which party is wrong.

An application, on the other hand, is more of an expedited process. In an application there’s no trial, so, you file your application record and you file your factum. Factum is your legal argument that you present to the court in which you apply the law on the specific facts of your case. So, an application is done, in an application there is no trial, so, essentially when the application is heard it’s basically your lawyer and the other side’s lawyer that are presenting their case in front of a judge and that presentation is already provided in a written form because the application record has all that information and the factum has all that information. So, in a perfect application, hearing the lawyers may not even have to speak much if the judge says that he or she has read the application material, application record, and factum and so, has, you know, specific issues that he wants the counsel, the lawyers to address.

So application is a faster process, in an application if there is evidence that’s done through fact, through an affidavit. An affidavit a simply a sworn statement by an affiant, by a person, basically saying that, basically setting out his or her personal knowledge of certain facts that are in dispute. So, if you have to examine a party on the affidavit you still have that option to cross-examine someone on the affidavit they have provided, but they’re still not providing testimony at trial.

So, application is generally a faster process it’s quicker and it’s cost effective. So this is, you know, one of the fundamental reasons why there is a difference between an action and an application.

So, in conclusion, what you want to take away from this is that in most every day situation you will be commencing a lawsuit by way of an action. Because the situations in which you commence an application are very limited and you have already gotten a sense that these are mostly estate matters, these are matters some matters, that are relating to land and then matters that are, you know, specified in a statute. But most of the time, you will be commencing an action. So, as long as you are alert to the difference between an application and an action at the outset of your commencement of your proceeding you will decide at that time, but in most of the times you will be commencing a court action.

All kinds of commercial issues that you may deal with they will be part and parcel of an action. Family law disputes are done through an action. Recovery of money if you have paid money to someone and you need that recovered that is usually done by way of an action. If you have a dispute with your contractor, your plumber, or your technician; all these kind of disputes are dealt through an action and not an application. So, in most every day situations you will be commencing an action.

Hopefully that gives you a good understanding of the difference between an application and an action and if you have any specific questions on these topics by all means contact us, write us comments on the YouTube channel, or send us an email and we’ll be happy to include more information in the future lectures thank you for watching.

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