Motions in Ontario Civil Courts – For Beginners [video]

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This lecture explains the basic concept of a motion in a civil proceeding: what is a motion, when do you bring one, common types of motions, how motions are heard, etc.

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. We will talk about Motions in Ontario Civil Courts today, and we will provide some basic concepts about what is a motion, when do you bring it, and what’s its purpose and role. The main principles that we’ll cover today apply to any kind of motion that you may bring whether in a civil court, whether in federal court, or in any other court in Ontario or across Canada, but in the end, we will cover some specific rules that apply to motions in Ontario. So, the concepts are pretty broad for anyone to understand what a motion is.

As always, we begin 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.

Our discussions today will include what is a motion? What are some of the common types of motion? Who do you bring the motion before? What our party’s position is different kind of positions parties take with respect to a motion? And we’ll talk about methods of hearing a motion, and documents that you may need to produce or provide or submit to others parties in a motion. And then briefly what kind of rules relate to a motion.

So first, we want you to understand what is a motion? A motion is really a party going to the court and asking for a direction, a ruling, or a specific order on a specific issue before trial. So, it’s kind of mini hearing before the trial on some specific issues. So, the definition is very broad and I want you to understand clearly the broadness of this definition of motion. Because motion is a great tool that allows you to get so many orders or directions from the court, that are not ordinarily covered in the process from filing a claim to a trial. And so I think one way to explain what a motion is, is by giving you some examples of the kinds of motions parties bring, and that will give you an understanding of what a motion really is.

So one example is Noting in Default, Production of Documents, setting down timetable, summary judgments, setting aside varying or amending court orders.

So, Noting in Default is an important motion and so, in this situation for instance, you are the plaintiff, you commenced the court action and the defendant failed or refused to file their Statement of Defense or failed or refused to respond to the Statement of Claim, and you now have the option to note the defendant in default. So, this is an important motion, in the sense that you bring the motion, you have the defendant noted in default, that will allow you to proceed and get a default judgment against the defendant. Or whatever next steps that you may take. Now the defendant doesn’t need to know what steps you are taking, because the defendant has been noted in default, the defendant has refused to attend or participate in the court process, that’s one kind of motion.

Another motion is Production of Documents. In Production of Documents for instance, at some point you realize that the opposing side has certain documents in its possession that are relevant to the issues in your case, but for whatever reason they have failed or refused to produce those documents. You can bring a motion in court and ask the court to issue an order to compel that party to produce those documents. Production of Documents motion can also apply to third parties, where parties that have certain documents that are relevant to your case, those parties are not parties to the claim or the defense. They’re not defendants, they’re not third party defendants in the case, but they are parties outside of the court process, yet, you can obtain a court order through a motion and compel those parties to produce those documents.

Setting down timetable is an example when your court action is not proceeding in a timely manner under the Rules of Civil Procedure. The defendant is engaging in certain delaying tactics and you want to compel the defendant to follow certain timetables, so your matter, your action can proceed efficiently towards trial. You can actually bring a motion in the court, and then have a timetable set down, and ask the court to issue that order, which will compel the defendant or other parties to follow that timetable.

Another example is a Motion for Summary Judgment. A Summary Judgment Motion is quite an important motion; it can resolve at times the entire issue, the entire case, without even going to trial. So, there are limited ways in which you can bring a summary judgment motion, but it’s an effective tool and you do it through a motion.

Finally, setting aside, varying or amending a court order. Let’s say there was an order issued by a court with respect to certain matters in your court action. And you disagree with that court order or you need to amend it or vary it in anyway or set aside it, you’ll have to bring a motion to have that particular order set aside or amended.

So these are some of the common types, there are many, many more kinds of motions. The idea that you want to keep in mind, is that anything that is not covered in the normal course of your action, and you need to get a specific order from a court, you will have to bring a motion, get that order and only then, you will be able to get those things done. So, you are asking the court to give you direction on a specific issue, whether to make a party do something or stop a party from doing something, and then you bring that motion by way of a motion.

Who do you bring the motion before in Ontario in civil court, you generally have 3 options. You can bring a motion before a registrar, you can bring a motion before a master, or you can bring a motion before a judge. A judge has the overall power to answer to any kind of motion, but masters and registrars have specific jurisdictions. There are specific issues that a registrar or a master can deal with, and there are specific rules and the Rules of Civil Procedure that provide that jurisdiction to a registrar a master. So, you must know before commencing your motion whom should you bring the motion before, should it be before a judge, a master, or a registrar.

And keep in mind, that a motion that ought to be brought before a master should not be brought before a judge; and similarly a motion that ought to be brought before a registrar should not be brought before a master or a judge. And we have a separate lecture already available on this in terms of the difference between the powers of a master and a judge, by all means check that out.

Now Party’s Position. What I want you to understand, is that there are fundamentally 2 ways a motion can be brought. Number 1 is Ex-Parte motion, meaning that you are the only party who is bringing that motion, attending that motion and the circumstances are, such that you don’t need to serve the motion material the notice of motion on any other party, so it’s Ex Parte. And there are specific circumstances in which you can bring an Ex Parte motion and you must meet those circumstances.

A majority of the motions are brought on notice, meaning that all parties to that action know they have been served with a notice of motion the specific document that you will be bringing this motion on such and such date. And so, when a motion is brought on notice, there are usually 3 kinds of party’s positions on it.

Number 1 is On Consent, so you have brought a motion on notice where all parties are consenting, are agreeing to what you are asking the court to do, and that and that’s not uncommon. You may need a specific direction from the court to do certain things or a make a party do certain things, but that party requires a court order. And they are agreeing to the fact that you can ask the order on consent, and so you can have a motion on consent.

Another position the parties can take, is unopposed. Unopposed is slightly different than On Consent obviously. On Consent, the parties agreeing to what you’re asking, and in unopposed position, the party is basically saying we’re not taking a position, we’re not opposing this motion, but we’re not saying that you should provide it, so let the judge, let the court decide how they want to give an order on that specific motion.

And finally, there could be motions contested. So, you are asking a certain order from a court, but the other party or parties are opposing it, and so you have a contested motion, which in most circumstances is the case.

Okay, how are motions heard? There are basically 2 ways, a motion could be in writing, and in motion, could be heard orally. There are a number of straightforward motions that are done in writing, even the contested motions in some circumstances can be done in writing, and then majority of the contested motions, opposed motions, are done orally before a master or a judge.

There are some specific documents that you would need, and these documents are referred to in the rules, the most important one is notice of motion. You prepare this document, you serve it on the other parties, and you file it with the court, and then whatever supporting evidence law, legal, or factual that you need to rely on to get the order that you’re looking for, you need to provide those. And in some circumstances, you will have to prepare and serve a Factum. A Factum is really your legal argument in writing, and there are specific rules about that. In some motions, you don’t need to a Factum, but in majority of cases,` you may need a factum with your documents.

There are 2 fundamental legislations in Ontario now, this is specific to Ontario Civil Courts, the Courts of Justice Act and Rules of Civil Procedure that deal with the issues of motion and any of the procedural matters. With respect to the Rules of Civil Procedure, the Rule 37 is the specific rule that deals with motions. You must review that rule before your proceeding, and also you must review any practice directions for your region for your municipality, so that you know how the motions are brought in that specific region and how they are heard.

Rule 76 is another rule, which is called the simplified rules and it has its own rules about bringing a motion, so you must review those rules. And we will in future lectures go through each rules, go through different types of motion, but this lecture is really to give you a broad overview of what a motion is, and what is the concept of a motion.

Small claims court has its own rules, and you can review the small claims court rules to understand how the motion is to be brought in the small claims court.

Okay, so in essence, you know if you use a motion effectively, the motion allows you to resolve some procedural issues, that’s important, or at times narrow down the issues, and in some circumstances, completely resolve the issues. So, if a motion is used effectively, it can save you significant time and significant cost. It’s a great tool, but it has to be used smartly, and it allows you to benefit from the overall court process in an effective way. Hopefully, this gives you a good sense of what a motion is, the basic concept, and then, in our future lectures, we’ll pick each kind of motion, we’ll talk about what that motion is, what are the circumstances and we’ll keep building on this basic knowledge about motion.

Please do write us back in the comments section on YouTube, or through any of these channels that we have listed, and we’ll be happy to answer questions, and provide more information in the future lectures, thank you for watching.

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