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Welcome everyone this is Amer Mushtaq from You Counsel. Today, we’ll talk about an Ex Parte Motion in Ontario Civil Courts. If you have reviewed our previous lecture on motions, we talked about the basic concept of a motion in a civil court and what are some of the types of the motion and one of those types is an Ex Parte Motion. So, today we’ll talk about an Ex Parte Motion, we’ll explain what that motion is, what are some of the circumstances when you bring that motion, and then we’ll talk about the process of how you go about bringing an Ex Parte Motion in a civil court.

We’ll begin as usual with the disclaimer that this course is not legal advice so if you have any specific questions you must contact a lawyer.

What is an Ex Parte Motion? We’ll give you some examples, we’ll talk about the process, we’ll talk about who do you bring an Ex Parte Motion before, what are some of the methods of hearing, what documents do you provide, and what are the relevant rules with respect to an Ex Parte Motion.

So what is an Ex Parte Motion? An Ex Parte Motion is a motion for the benefit of one side without other being present, ex parte. So, there’s only one party that is present before the court and seeking something and the other side is not there the other side has no knowledge that there is a motion the other side has no notice … that’s an Ex Parte Motion.

For an Ex Parte Motion, you must understand the basic judicial principle of judicial fairness, which is that each side, each party must have an opportunity to present its case to present its argument to the court. That’s fundamental that’s called due process, that’s called, the fundamental fairness, procedural fairness, whatever terms you may want to use. But the basic, you know, rule of judicial fairness is that each side must have an opportunity to present its side of the story before the court, a judge, or a master can make its decision.

But an Ex Parte you are not, both parties are not present. So what you want to keep in mind is that you must have sufficient circumstances that justify, sufficient evidence, that justify why the other side need not to be present, why the other side should not present its case. And those are some, you know, there are some specific limited circumstances; I will give you some examples here.

Default Judgment is one, Default Judgment, as you may know, is a situation where you commenced a court action the defendant or the defendants did not participate in that court action, they failed or they refused to file their defense, which indicated that they are not dealing with the court process and that gives you the opportunity to note the defendant in default. That means that, you know, that’s a motion that you bring basically having the court to state that the defendant will no longer be taking any steps in this and that court action so they’re not entitled to any notices, any orders, or anything because they have failed or refused to participate in the process. So, after you have noted a defendant in default, you can actually go and get a default judgment. And for default judgment because the defendant is not participating in the process you can bring an Ex Parte Motion for default judgment and basically plead your case in the absence of the other side.

Other example is emergency situations where you believe that there could be irreparable harm, and these emergency situations could be a variety of circumstances. These could be the harm that you may expect, the future harm that you’re expecting maybe financial, it may be personal any kind of harm, but you believe that if you don’t get this order this specific order immediately and without even bringing the other party to argue their case, the harm will happen. And that’s when you may show up in a court and say that I need this order. Usually it’s a temporary order until the proper litigation takes place, but I want this order immediately, without the other side being present because my circumstances are such that there’s no time to put the other side on notice, there’s no time to delay and I need this.

This can, you know, happen in family law situations in child custody situations where you believe that the child may have a potential harm and then you have significant evidence that can actually support. It’s not just based on emotional, you know, just your feelings or emotional circumstances, or the nature of dispute which maybe bitter with the other side. But it has to be that the potential harm has to be real, there should be some significant evidence that you can produce before the court to explain why the emergency is real and why the potential harm is real and therefore the notice requirement it can be can be dispensed with.

Certificate of Pending Litigation, in most cases, it will be on notice but I have actually dealt with some cases where our circumstances did not require serving a notice. One example, was that the other side you know had sold the – this was about a property – and the other side had sold the property like forty years ago and the matter was forty years old. The defendant could not be located their lawyers could not be located there was no circumstances in which the other side could have been harmed by the vacation of Certificate of Pending Litigation and so, you know, we brought an Ex Parte Motion before a master to have the certificate C.P.L. vacated. So, there could be other circumstances, as long as you understand that the emergency has to be when objectively reviewed has to be real, the potential of harm has to be real not just based upon your subjective view of things, and there should be some evidence that that a judge can or a master can accept and in that circumstances your Ex Parte Motion may be heard and you may get the order.

So what you want to keep in mind is that if there is any reason why that case, why that motion should be on notice the presiding judge or a presiding master will not hear that and will send you back and will ask you to serve the motion materials on the other side and do it properly.

Again the Ex Parte Motion could be before a registrar, a master, or a judge. Mostly it either before a master or a judge and so you need to understand the nature of your motion. Can it be brought before a master? Can be brought before a judge? We have talked about this in other lectures, please review that. And the motion could be either in writing or orally. Most of the time, Ex Parte Motion are orally presented, but they could be circumstances where you can simply do that in writing.

So, you if you are in a situation where you believe that an Ex Parte Motion is justified, step number one, you prepare a motion material and make three copies of that. You prepare the draft order. The draft order is the order that you want the court to grant you. So, you basically write down the order saying that the judge or the master is going to order, you know, such and such remedy and you prepare it, hoping that once you present it to the master they simply review the order if they are satisfied they sign it and date it. So, you prepare the draft order for the master of the judge. Then you go and visit 393 University Avenue, this is in Toronto, go on the 10th floor, you line up, you get a ticket, you go on that counter of the motions counter along with the court fee … and for a motion you need to you need to know what the court fees are and you can go online Google it type in, “court fee” and you will find this regulation it’s call Ontario Regulation 293 Sub 92, Superior Court of Justice and Court of Appeal fees. So all of the fees that you have to pay are listed here and you can you can look down, I know that a motion fee is $160.

So, a notice of motion served on another party, a notice of motion without notice, a notice a motion for a consent order, so on and so forth is $160. So, you go with $160, you pay that money, and what’s going to happen is the motions registrar or the motions clerk what he will do is he will pull out your file in the courts system, he will accept the money, he will stamp on your motion material at the back, so, you know that your motion has been accepted, and now you have to go and argue it before a master or a judge. So that’s the process to sort of getting the motions scheduled. So, you take three copies, you only need two, but it’s good to take three copies of your motion material, the draft order, and then you attend the court with the fee.

If it’s a motion that requires emergency order then it will be dealt with immediately, each court in Ontario has some process either you can appear before a judge or a master on an immediate bases and get the order because of the nature of emergency, otherwise with respect to masters motions, Ex Parte Motions in Toronto, you can those are usually heard and Tuesdays and Thursdays. So if it’s not an urgent motion, but it’s an Ex Parte Motion you can either show up on Tuesday morning or Monday morning but you would know that some master is sitting on Tuesdays or Thursdays to review Ex Parte Motions and you can have those heard there.

For a judge, you will have to get a date with the motions clerk, and you will ask him or her, what are the dates available and then you pick one date and you already have provided the court fee, so, you get that schedule and then you come on that date and appear before a judge to have your case heard.

I talked about motion materials. Motion materials are essentially the notice of motion, there’s a form for it, Rules of Civil Procedure form, that you can download from online, and then you have to provide supporting evidence. Obviously, there are, you must present evidence why you should be given the remedy that you’re asking? In some cases, you may need a factum, in majority of the Ex Parte Motions you may not need factum as long as you have a notice of motion and supporting evidence that may be sufficient. So, those two or three documents comprise your motion record, which is why I indicated that you take three copies of those.

Two legislations that are important that relate to a motion are the Courts of Justice Act and Rules of Civil Procedure both are available online, you can review those. And with respect to the motions you want to make sure that you review Rule 37, which covers most of the motions. Rule 76 is simplified rules process if your case is $100,000 or less then Rule 76 will apply, which has its own rules about a motion, so, you want to review that. And if your motion is in a small claims court, then you want to review Small Claims Court Rules.

So, the main thing that you want to understand is that you must have a valid reason to bring an Ex Parte Motion and then understand the steps, how do you actually go about bringing that motion, how much motion records do you need to prepare, and how do you physically go to the court office and get it scheduled and have your motion heard. And if you’re unclear about whether you are entitled to bring an Ex Parte Motion or not, or any other issues with respect to your motion it’s a good idea to go talk to a lawyer just to make sure that you are clear about what you’re doing and that you have valid legal reasons to proceed that.

Hopefully this gives you a basic understanding of an Ex Parte Motion and we’ll in the future we’ll talk about motions and consent and motions or notice and we’ll try to explain to you a bit more about motions in a civil court. Thanks for watching.