Steps for Scheduling a Motion in an Ontario Superior Court [video]

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This lecture outlines the steps a party must take to schedule a motion date in an Ontario Superior Court. For those unfamiliar with the scheduling process, these steps could be complex and daunting. This lecture simplifies those steps and points towards the resources that can provide additional guidance to parties based on their jurisdiction.

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. Today we’ll talk about scheduling a motion in Ontario Superior Court, and we will provide you with specific steps that you take in order to book your motion. A lot of people who have not brought a motion, including lawyers may not be exactly familiar with the steps that they need to take, because each region in Ontario may have their own procedure of scheduling a motion, so you need to be on top of the applicable Practice Directions for that region to figure out how do you actually book a motion. And so we’ll talk about those steps in this lecture.

We commence with our disclaimer that this course is not legal advice, so if you have any specific questions you must contact a lawyer or a paralegal or contact the Law Society of Upper Canada.

I want to you to keep in mind that the discussion is sort of limited in today’s lecture. It is not comprehensive, it does not cover every single kind of motion that you may need to bring in a court. And depending upon the region in which or the specific court in which you’re bringing this motion the process may be slightly different. So what should you carry from this lecture is that, you get an overview of how do you actually go about scheduling a motion, booking a motion, you get an overview of that. You get a direction or a guidance in terms of what do you need to do if you’re still not sure what kind of documents, what kind of online websites that you look at, who do you call if you need to figure out the process.

So most of the steps that we’re talking about will cover generally Motions on Notice. And Motion on Notice, if you read the rules on motions what it says is that a motion should be made on notice, meaning the other parties who are affected by that motion must have a notice of that unless there are certain reasons why it shouldn’t be, and then it could be done without notice. So mostly this covers the motions that are on notice, they could be contested or uncontested. Contested motions are those where other parties do not agree that what you’re asking from the court should be granted. Uncontested are the ones where they either agree that the relief you’re asking should be granted or they may not have any position on what the court will let which should decide.

If you’re bringing a motion without notice, an Ex-parte Motion, before a judge in Toronto then again this lecture applies, in other jurisdictions you’ll have to check what the Practice Directions say there. You want to keep in mind that if you’re bringing an Emergency Motion then this process does not apply. Emergency Motion is an Emergency Motion, you contact the court you try to find a master or a judge that’s available and then you go and bring your motion. Similarly Injunction Motions are sort of Emergency Motions depending upon the context of the motion. But in those motions you may not need to follow this process that we’re talking about today. Ex-parte Motion before the judge in Toronto, I have a separate lecture on that you can review it. Masters in Toronto, I believe they sit two days in a week, Tuesdays and Thursdays, and you can actually prepare your motion material and show up in the court in the morning and have your matter heard by a master. Summary Judgment Motions, there’s a separate process.

So depending upon the kind of motion you are bringing the process for going about scheduling that motion may be different. And so what you want to carry from this lecture is that, a) you want to read the Rules of Civil Procedure with respect to the motion that you’re bringing and what needs to be done, and then secondly you want to make sure that you read the Practice Direction of the Ontario, the province wide and the Practice Direction specific to that region so that you can understand specific rules for that. And I’ll show you a website where you can go, but if you type in Google “Practice Direction Toronto”, “Practice Direction Newmarket,” you know, you will find those Practice Directions they are available to the public.

So what are the steps in scheduling a motion? First you have to determine whether your motion is before a master or a judge, because you would need that information before you actually schedule it. You would need to determine whether your motion is a Long Motion or a Short Motion. There is a difference, and again within Long Motions there is a different process if the Long Motion is before a judge or if it is before a master and we’ll talk about it in a bit. And then you will actually go about booking or scheduling a motion date with that specific court.

So a motion before a master or a judge, you need to figure that out before you actually schedule a date because the court will ask you about it. And so in order for you to determine whether your motion is before a master or a judge, you check out Rule 37.02, you want to keep in mind that this determination whether a motion should be before a judge or master is not always easy. I’ve seen oftentimes lawyers disagreeing whether a motion should be heard before a master or a judge. And understanding the distinction and figuring out whether a motion should be heard before a master or a judge is important. Of course every judge can hear every single motion, but if the motion can be heard by a master and you bring it before a judge, the judge may refuse to hear that motion; and most likely will refuse to hear that motion because the master does have a jurisdiction, so you’re wasting the judge’s time who has other motions to attend or other matters to attend.

So figuring that out is important let’s see if we can check out the Rule 37.02, it talks about jurisdiction to hear a motion at 37.02 “Sub 1 a judge has jurisdiction to hear any motion and the proceeding” as I said, but with respect to master, master has a jurisdiction where you know the power to grant. So master has jurisdiction for all motions except the following: “Where the power to grant the relief sought is conferred expressly on a judge by a statutory rule,” so if something says specifically that it is to be heard by a judge hen it has to go to a judge. If you’re setting aside, varying, or amending an order that was given by a judge, then a master because master has a limited authority and less than a judge, will not be able to vary or amend a judge’s order set it aside. “To abridge or extend a time prescribed by an order that a master could not have made.” So again similar to what I read before. “For a judgment on consent in favor of or against a party under disability, relating to the liberty of the subject,” I’m not clear what that means, “under Section 4 or 5 of the Judicial Review Procedure Act in an appeal.”

So you know these are sort of the broad guidelines but I can tell you that practically speaking you may not get it right. I mean only last week I was in court attending a motion before a judge where two lawyers appeared and they had booked a motion respecting undertakings and refusals before a judge, and it is commonly known that those motions can be heard by a master, so the judge was not too happy about it and she sent them away to a master to have that motion heard. So you have to figure out before you book or schedule a motion whether your motion is going to be before a master or a judge. And just sort of as a comment on masters or judges, I think I have a separate lecture on this too, but masters in Ontario are being phased out. Masters as now you can understand are like judges but they have lesser powers than judges, and they used to be all across and available across Ontario but I believe they’re being phased out. And I believe, don’t quote me on it, but I believe they’re only now in Toronto and when those masters retire, then there will not be any more appointments and they’ll only be judges. But so far you have masters and judges, so you want to make sure that you understand whether your motion is before a master or a judge.

Step number 2 you need to determine whether your motion is Short or Long Motion, so you want to check the Practice Direction to ensure whether you understand what constitutes a Short or Long Motion. In Toronto if your motion will take two hours or more by all of the parties, not just you, so you have to make your submissions, your arguments, and the opposing side or sides have to make their submissions and if all of that time is two hours or more then that’s considered a Long Motion. And if it’s shorter than that then that’s considered a Short Motion and there’s a separate process for scheduling both kinds of motion.

You want to make sure that you estimate your time fairly. If you believe that the motion realistically would be heard in more than two hours, and just because you can’t schedule it quickly you write down that it will be one hour and fifty-five minutes and it will actually take longer than that, you will get the wrath of the judge or the master. So you want to be careful because when the resources are allocated for scheduling a motion they are done very carefully, and if you overestimate your time or underestimate your time, if you’re wasting the court’s time, then you get penalized. You also need to confer with other parties before scheduling a motion on time and also on the dates. So you call or contact your opposing counsel or other counsel or other parties and ask them for their availability for the motion before you actually schedule a motion. But in some cases you can go ahead and schedule a motion, but in the majority of the cases you must contact the parties and find out their availability.

Now booking a motion date. So you can book a motion with a phone call, email, or a fax, and you call and you find out the court’s number, you can Google it and you will see that there the Ministry of the Attorney General does provide courts’ addresses and phone numbers and you can call them and they will be various options. And you end up if it’s a civil motion before a master or a judge, you get to that number, usually they’re called motion scheduling clerks, at least in Toronto, in some of the courts there may be pretrial coordinators who may be assigned the task of scheduling motions. So you call them or you email and fax and I’ll talk about that, you email or fax a Motion Requisition form that’s what you prepared.

And so let me show you a Motion Requisition form that I had prepared for a different matter and it will give you a sense of what you do. I had actually in one of my previous lectures on Default Judgment Motions I had shown this form, but I did not go through in detail, so I’m taking this opportunity to sort of go through it in detail. So this is a requisition to schedule a Short Motion application before a judge or a master, either of the two. Check that box and you notice here that you can send this form a completed copy, it’s for Toronto by email to this email address or by fax and this is the fax number.

Okay so filling out the form our first item you have to fill out your court file number and you can find it on your Statement of Claim or Statement of Defense and the court file number, then you type in the short title meaning, “Jane Doe versus ABC Ltd,” etcetera. So whatever the title is and again this title should be identical to or similar to what your Statement of Claim or defense or pleading state. Then if you are the moving party are you a plaintiff, the defendant, or somebody else you check that box. Is this case under case management? If it’s under case management you would know it and you will check that box, otherwise whether it’s under simplified procedure or ordinary procedures. So matters under $100,000 there’s a Rule 76 under Rules of Civil Procedure. You would know by this time because you have issued a claim or you’re defending a claim so check that box whichever is appropriate. Is motion on consent, is it opposed, unopposed, ex-parte? So all of these as you notice are important pieces of information that the court needs to properly schedule your motion. So accurate information would help the court to schedule it properly. Estimated time of oral arguments by all parties. So this one is the one that I said is very important. In this case it was it we suggested it was 30 minutes, because it wasn’t a motion, it was an ex-parte motion so only I was making the submissions. Then you talk about the nature of the action, is it a contract dispute, is it an employment law dispute, personal injury, you specify that. Then you talk about the rules under which you’re bringing this motion and the ones that will apply, and you list all the rules that apply and you notice that I’ve listed a number of rules here. And so that gives you an opportunity so that you prepare for the motion in advance and so you go through the rules, the Rules of Civil Procedure and figure out which specific rules would apply, and then you write them down here so the judge or master has an idea of what to expect at that motion. Then is the motion before a master or a judge? If it can only be heard by a judge, then you write down here or you say “master or a judge” and it doesn’t matter. Whether a particular judge or a master is seized of all motions, in some cases it is the case, if that’s not the case then you say no, or not applicable. Is the proceeding governed by Simplified Rules? If it is, you have checked this box. Does the motion relate to undertakings or refusals? If the answer is “no,” you write that down. Is it a Summary Judgment motion? Is the application or motion urgent? Is any party self represented? And if it is then you say yes. Is this proceeding under case management? Already asked but you check the box. Does the motion application require a bilingual judge or master? The answer is no. And then here you provide at least two dates to the court and then these dates you obtain prior to putting the dates here. So this is important, you have conferred you have spoken with other counsel and they have – sorry, step back. You have contacted the court first either by email or phone and ask them what are the dates that are available for a motion before a judge or a master, and they will give you certain dates that are open. Then you check your calendar and look at your availability and contact opposing counsel or other parties’ counsel or other parties to check their availability and then you select two or three dates here and then you put them down and then when you send the form the court will pick one or one or two dates and then it will schedule it. So that’s how the scheduling will take place, so a number of steps.

And when you call the court and find out the availability you can’t hold off any date. So it’s really a matter of you figuring out the available dates, talking to the opposing counsel, getting the day choices over here, and sending this to the court and blocking those dates, so you’ll have to do that.

Okay so you’ve sent the Motion Requisition form. You want to and I can’t emphasize more that you have to watch the timelines for all of the steps in a motion. In this case once you have booked the motion, the court has advised you the motion is booked, you have in Ontario 10 days to file your Notice of Motion and fees to make sure that the date remains scheduled for your matter, otherwise you will lose that date. You want to make sure that you follow the timeline for delivering the motion record, serving it and filing it with the court. And you want to make sure that you confirm the motion, so there’s a form for confirmation of motion which must be sent I believe three days or two days before the motion is heard, I have a separate lecture I believe on that. But you want to make sure that these are all the steps that you follow, and you don’t miss out on any steps, because if you do then you will end up losing the timeline for the motions.

I talked about the Practice Directions, I’ve opened a Practice Direction for Toronto, and like I said you can Google the Practice Direction for other regions and you will find that. And if you notice in this Practice Direction, scheduling a Long application, a Long Motion, a Summary Judgment Motion, or an Urgent Motion before a judge in Toronto, you can’t send a motion requisition form. You have to attend at Civil Practice Court before a judge in order to do all of this, and then if you want to attend Civil Practice Court there is a separate form for it and you can download that here. So this if I scroll up this is the Consolidated Practice Directions for Civil Actions applications and procedural matters in Toronto region. And similarly you can go and find Practice Directions for other regions, you can scroll down here, see Central East, Central South, so all of these are available. The key thing is you want to make sure that you read those Practice Directions before you actually go about scheduling it and then you follow all the steps that are in those Practice Directions. So hopefully this gives you a broader understanding of how do you actually go about getting a date, because a lot of people just don’t know and it becomes complicated. So this gives you a sense of how do you actually get a date, to go and schedule your motion, and then the next steps are…and I have separate lectures and that. What do you need to prepare? How do you go about preparing those documents, serving them, and filing them with the courts?

Hopefully this is helpful, if you have any comments and suggestions please feel free to contact us and we look forward to seeing you in the next lecture. Thank you for watching.

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