MOTIONS AND APPLICATIONS

RULE 37 MOTIONS--JURISDICTION AND PROCEDURE

NOTICE OF MOTION

37.01 A motion shall be made by a notice of motion (Form 37A) unless the nature of the motion or the circumstances make a notice of motion unnecessary.

JURISDICTION TO HEAR A MOTION

Jurisdiction of Judge
37.02 (1) A judge has jurisdiction to hear any motion in a proceeding.
Jurisdiction; of a Master
(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, Jurisdiction of Registrar
(3) The registrar shall make an order granting the relief sought on a motion for an order on consent, if,

PLACE OF HEARING

Motion Made Without Notice
37.03 (1) A motion properly made without notice may be made in the county in which, Motion Made on Notice - Generally
(2) Unless the parties agree otherwise, and subject to subrules (3) and (4), a motion made on notice shall be made, (3) Where a party has served a notice of motion naming a place of hearing in accordance with subrule (2), any other party may make a motion at the same place and time to the same judge or, if the motion is within a master's jurisdiction, to the same master.
Leave to Hear Motion on Notice at Another Place
(4) On the ground of urgency or hardship or for another sufficient reason, the court may grant leave for the hearing of a motion on notice at a place elsewhere than provided in subrule (2), and the motion for leave may be made in any county.
(5) Where leave is refused on a motion under subrule (4), the court shall fix the costs of any responding party who appeared at the hearing of the motion on a solicitor and client basis, together with travelling expenses, and order the moving party or his or her solicitor to pay those costs and expenses forthwith, unless the court is satisfied that the making of the motion for leave, although unsuccessful, was nevertheless reasonable.

MOTIONS-TO WHOM TO BE MADE

37.04 A motion shall be made to the court if it is within the jurisdiction of a master or registrar and otherwise shall be made to a judge.

HEARING DATE FOR CERTAIN MOTIONS

Where no practice direction
37.05 (1) At any place where no practice direction concerning the scheduling of motion is in effect, a motion may be set down for hearing on any day on which a judge or master is scheduled to hear motions.
Exception, lengthy hearing
(2) If counsel estimates that the hearing of the motion will be more than two hours long, a hearing date shall be obtained from the registrar before the notice of motion is served.
Urgent motion
(3) An urgent motion may be set down for hearing on any day on which a judge or master is scheduled to hear motions, even if counsel estimates that the hearing is likely to be more than two hours long.

CONTENT OF NOTICE

37.06 Every notice of motion (Form 37A) shall,

SERVICE OF NOTICE

Required as General Rule
37.07 (1) The notice of motion shall be served on any person or party who will be affected by the order sought, unless these rules provide otherwise.
Where Not Required
(2) Where the nature of the motion or the circumstances render service of the notice of motion impracticable or unnecessary, the court may make an order without notice.
(3) Where the delay necessary to effect service might entail serious consequences, the court may make an interim order without notice.
(4) Unless the court orders or these rules provide otherwise, an order made without notice to a person or party affected by the order shall be served on the person or party, together with a copy of the notice of motion and all affidavits and other documents used at the hearing of the motion.
Where Notice Ought to Have Been Served
(5) Where it appears to the court that the notice of motion ought to have been served on a person who has not been served, the court may, Minimum Notice Period
(6) Where a motion is made on notice, the notice of motion shall be served at least four days before the date on which the motion is to be heard.

FILING OF NOTICE OF MOTION

37.08 (1) Where a motion is made on notice, the notice of motion shall be filed with proof of service at least two days before the hearing date in the court office where the motion is to be heard.
(2) Where service of the notice of motion is not required, it shall be filed at or before the hearing.

ABANDONED MOTIONS

37.09 (1) A party who makes a motion may abandon it by delivering a notice of abandonment.
(2) A party who serves a notice of motion and does not file it or appear at the hearing shall be deemed to have abandoned the motion unless the court orders otherwise.
(3) Where a motion is abandoned or is deemed to have been abandoned, a responding party on whom the notice of motion was served is entitled to the costs of the motion forthwith, unless the court orders otherwise.

MATERIAL FOR USE ON MOTIONS

Where Motion Record Required
37.10 (1) Where a motion is made on notice, the moving party shall, unless the court orders otherwise before or at the hearing of the motion, serve a motion record on every other party to the motion and file it, with proof of service, in the court office where the motion is to be heard, at least three days before the hearing, and the court file shall not be placed before the judge or master hearing the motion unless he or she requests it or a party requisitions it.
Contents of Motion Record
(2) The motion record shall contain, in consecutively numbered pages arranged in the following order, Responding Party's Motion Record
(3) Where a motion record is served, a responding party who is of the opinion that it is incomplete may serve on every other party, and file, with proof of service, in the court office where the motion is to be heard, at least two days before the hearing, a responding party's motion record containing, in consecutively numbered pages arranged in the following order, Material may be Filed as Part of Record
(4) A notice of motion and any other material served by a party for use on a motion may be filed, together with proof of service, as part of the party's motion record and need not be filed separately.
Transcript of Evidence
(5) A party who intends to refer to a transcript of evidence at the hearing of a motion shall file a copy of the transcript as provided by rule 34.18.
Factum
(6) A party may serve on every other party and file, with proof of service, in the court office where the motion is to be heard, at least two days before the hearing, a factum consisting of a concise argument stating the facts and law relied on by the party.

HEARING IN ABSENCE OF PUBLIC

37.11 (1) A motion may be heard in the absence of the public where, (2) The hearing of all other motions shall be open to the public, except as provided in section 135 of the Courts of Justice Act in which case the presiding judge or officer shall endorse on the notice of motion leave for a hearing in the absence of the public. 37.12 Revoked O. Reg 288/89

HEARING WITHOUT ORAL ARGUMENT

Consent motions, unopposed motions and motions without notice
37.12.1 (1) Where a motion is on consent, unopposed or without notice under subrule 37.07(2), the motion may be heard in writing without the attendance of the parties, unless the court orders otherwise.
(2) Where the motion is on consent, the consent and a draft order shall be filed with the notice of motion.
(3) Where the motion is unopposed, a notice from the responding party stating that the party does not oppose the motion and a draft order shall be filed with the notice of motion.
Opposed Motions in Writing
(4) Where the issues of fact and law are not complex, the moving party may propose in the notice of motion that the motion be heard in writing without the attendance of the parties, in which case, (5) Within tens days after being served with the moving party's material, the responding party shall serve and file, with proof of service, in the court office where the motion is to be heard, (6) Where the responding party delivers a notice under subrule (5) that the party intends to make oral argument, the moving party may either attend the hearing and make oral argument or not attend and rely on the party's motion record and factum.

DISPOSITION OF MOTION

37.13 (1) On the hearing of a motion, the presiding judge or officer may grant the relief sought or dismiss or adjourn the motion, in whole or in part and with or without terms, and may, (2) A judge who hears a motion may, (3) Where on a motion a judge directs the trial of an issue, subrules 38.10(2) and (3) (issue treated as action) apply with necessary modifications.
Exception, motions in estate matters
(4) Clause (2)(b) and subrule (3) do not apply to motions under Rules 74 and 75.

SETTING ASIDE, VARYING OR AMENDING ORDERS

Motion to Set Aside or Vary
37.14 (1) A person who, may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person's attention and names the first available hearing date that is at least three days after service of the notice of motion.
(2) On a motion under subrule (1), the court may set aside or vary the order on such terms as are just.
Order Made by Registrar
(3) A motion under subrule (1) or any other rule to set aside, vary or amend an order of a registrar may be made to a judge or master, at a place in accordance with rule 37.03 (place of hearing of motions).
Order Made by Judge
(4) A motion under subrule (1) or any other rule to set aside, vary or amend an order of a judge may be made, Order Made by Master
(5) A motion under subrule (1) or any other rule to set aside, vary or amend an order of a master may be made, Order Made in Court of appeal or Divisional Court
(6) A motion under subrule (1) or any other rule to set aside, vary or amend an order made by a judge or panel of the Court of Appeal or Divisional Court may be made,

MOTIONS IN A COMPLICATED PROCEEDING OR SERIES OF PROCEEDINGS

37.15 (1) Where a proceeding involves complicated issues or where there are two or more proceedings that involve similar issues, the Chief Justice or Associate Chief Justice of the Superior Court of Justice, a regional senior judge of the Superior Court of Justice or a judge designated by any of them may direct that all motions in the proceeding or proceedings be heard by a particular judge, and rule 37.03 (place of hearing of motions) does not apply to those motions.
(1.1) A judge who is directed to hear all motions under subrule (1) may refer to a master any motion within the jurisdiction of the master under subrule 37.02(2) unless the judge who made the direction under subrule (1) directs otherwise. (2) A judge who is hears motions pursuant to a direction under subrule (1) shall not preside at the trial of the actions or the hearing of the applications.

PROHIBITING MOTIONS WITHOUT LEAVE

37.16 On motion by any party, a judge or master may by order prohibit another party from making further motions in the proceeding without leave, where the judge or master on the hearing of the motion is satisfied that the other party is attempting to delay or add to the costs of the proceeding or otherwise abuse the process of the court by a multiplicity of frivolous or vexatious motions.

MOTION BEFORE COMMENCEMENT OF PROCEEDING

37.17 In an urgent case, a motion may be made before the commencement of a proceeding on the moving party's undertaking to commence the proceeding forthwith.

RULE 38 APPLICATIONS-JURISDICTION AND PROCEDURE

APPLICATION OF THE RULE

38.01 (1) Rules 38.02 to 38.11 apply to all proceedings commenced by a notice of application under rule 14.05, subject to subrule (2).
(2) Rules 38.02 and rule 38.09 do not apply to applications to the Divisional Court.

APPLICATIONS-TO WHOM TO BE MADE

38.02 An application shall be made to a judge.

PLACE AND DATE OF HEARING

Place
38.03 (1) The applicant shall name in the notice of application as the place of hearing a place in which the court normally sits.
Application under the Commercial Tenancies and Tenant Protection Act
(1.1) An application under the Commercial Tenancies or the Tenant Protection Act, 1997 shall be made in the county in which the premises are located and shall be heard and determined in that county.
Hearing date where no practice direction
(2) At any place where no practice direction concerning the scheduling of applications is in effect, an application may be set down for hearing on any day on which a judge is scheduled to hearing applications.
Exception, lengthy hearing
(3) If counsel estimates that the hearing of the application will be more than two hours long, a hearing date shall be obtained from the registrar before the notice of application is served.
Urgent application
(3.1) An urgent application may be set down for hearing on any day on which a judge is scheduled to hearing applications, even if counsel estimates that the hearing is more likely to be more than two hours long.
Counter-Application
(4) Where a notice of application has been served, and the respondent wishes to make an application against the applicant, or against the applicant and another person, the respondent may make the application at the same place and time to the same judge.

CONTENT OF NOTICE

38.04 Every notice of application (Form 14E, 68A or 73A, 74.44 or 75.5) shall state,

ISSUING OF NOTICE

38.05 A notice of application shall be issued as provided by rule 14.07 before it is served.

SERVICE OF NOTICE

Generally
38.06 (1) The notice of application shall be served on all parties and, where there is uncertainty whether anyone else should be served, the applicant may make a motion without notice to a judge for an order for directions.
Where Notice Ought to Have Been Served
(2) Where it appears to the judge hearing the application that the notice of application ought to have been served on a person who has not been served, the judge may, Minimum Notice Period
(3) The notice of application shall be served at least ten days before the date of the hearing of the application, except where the notice is served outside Ontario, in which case it shall be served at least twenty days before the hearing date.
Filing Proof of Service
(4) The notice of application shall be filed with proof of service at least four days before the hearing date in the court office where the application is to be heard.

NOTICE OF APPEARANCE

38.07 (1) A respondent who has been served with a notice of application shall forthwith deliver a notice of appearance (Form 38A).
(2) A respondent who has not delivered a notice of appearance is not entitled to, (3) Despite subrule (2), a party who is served with a notice of application outside Ontario may make a motion under subrule 17.06(1) before delivering a notice of appearance and is entitled to be served with material responding to the motion.
Exception, applications to pass accounts
(4) Subrules (1) and (2) do not apply to a notice of application to pass accounts under Rule 74.

ABANDONED APPLICATIONS

38.08 (1) The applicant may abandon an application by delivering a notice of abandonment.
(2) An applicant who fails to appear at the hearing shall be deemed to have abandoned the application unless the court orders otherwise.
(3) Where an application is abandoned or is deemed to have been abandoned, a respondent on whom the notice of application was served is entitled to the costs of the application, unless the court orders otherwise.
(4) Where a party to an application is under disability, the application may be abandoned by or against that party only with leave of a judge, on notice to,

MATERIAL FOR USE ON APPLICATION

Application Record and Factum
38.09 (1) The applicant shall, (2) The applicant's application record shall contain, in consecutively numbered pages arranged in the following order, Respondent's Application Record and Factum
(3) The respondent shall serve on every other party a factum consisting of a concise argument stating the facts and law relied on by the respondent.
(3.1) If of the opinion that the application record is incomplete, the respondent may serve on every other party, at least two days before the hearing, a respondent's application record containing, in consecutively numbered pages arranged in the following order, and the respondent's factum and application record shall be filed, with proof of service, in the court office where the application is to be heard, not later than 2 p.m. on the day before the hearing.
(3.2) The respondent's factum, and the respondent's application record, if any, shall be filed, with proof of service in the court office where the application is to be heard, at least two days before the hearing.
Dispensing with Record and Factum
(4) A judge, before or at the hearing of the application, may dispense with compliance with this rule in whole or in part.
Material May be Filed as Part of Record
(5) Any material served by a party for use on an application may be filed, together with proof of service, as part of the party's application record and need not be filed separately if the record is filed within the time prescribed for filing the notice or other material.
Transcript of Evidence
(6) A party who intends to refer to a transcript of evidence at the hearing of an application shall file a copy of the transcript as provided by rule 34.18.
Exceptions, applications in estate matters
(7) Subrules (1) to (6) do not apply to applications under Rule 74.
(8) Subrules (1) to (6) apply to applications under Rule 75, but neither the applicant nor the respondent is required to serve a factum.

DISPOSITION OF APPLICATION

38.10 (1) On the hearing of an application the presiding judge may, (2) Where a trial of the whole application is directed, the proceeding shall thereafter be treated as an action, subject to the directions in the order directing the trial.
(3) Where a trial of an issue in the application is directed, the order directing the trial may provide that the proceeding be treated as an action in respect of the issue to be tried, subject to any directions in the order, and shall provide that the application be adjourned to be disposed of by the trial judge.
Exception, applications in estate matters
(4) Clause (1)(b) and subrules (2) and (3) do not apply to applications under Rules 74 and 75.

SETTING ASIDE JUDGMENT ON APPLICATION MADE WITHOUT NOTICE

38.11 (1) A person who is affected by a judgment on an application made without notice or who fails to appear at the hearing of an application through accident, mistake or insufficient notice may move to set aside or vary the judgment, by a notice of motion that is served forthwith after the judgment comes to the person's attention and names the first available hearing date that is at least three days after service of the notice of motion.
(2) A motion under subrule (1) may be made, (3) On a motion under subrule (1), the judgment may be set aside or varied on such terms as are just.

RULE 39 EVIDENCE ON MOTIONS AND APPLICATIONS

EVIDENCE BY AFFIDAVIT

Generally
39.01 (1) Evidence on a motion or application may be given by affidavit unless a statute or these rules provide otherwise.
Service and Filing
(2) Where a motion or application is made on notice, the affidavits on which the motion or application is founded shall be served with the notice of motion or notice of application and shall be filed with proof of service in the court office where the motion or application is to be heard at least two days before the hearing.
(3) All affidavits to be used at the hearing in opposition to a motion or application or in reply shall be served and filed with proof of service in the court office where the motion or application is to be heard at least two days before the hearing.
Contents - Motions
(4) An affidavit for use on a motion may contain statements of the deponent's information and belief, if the source of the information and the fact of the belief are specified in the affidavit.
Contents - Applications
(5) An affidavit for use on an application may contain statements of the deponent's information and belief with respect to facts that are not contentious, if the source of the information and the fact of the belief are specified in the affidavit.
Full and Fair Disclosure on Motion or Application Without Notice
(6) Where a motion or application is made without notice, the moving party or applicant shall make full and fair disclosure of all material facts, and failure to do so is in itself sufficient ground for setting aside any order obtained on the motion or application.

EVIDENCE BY CROSS-EXAMINATION ON AFFIDAVIT

On a Motion or Application
39.02 (1) A party to a motion or application who has served every affidavit on which the party intends to rely and has completed all examinations under rule 39.03 may cross-examine the deponent of any affidavit served by a party who is adverse in interest on the motion or application.
(2) A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03.
To be Exercised with Reasonable Diligence
(3) The right to cross-examine shall be exercised with reasonable diligence, and the court may refuse an adjournment of a motion or application for the purpose of cross-examination where the party seeking the adjournment has failed to act with reasonable diligence.
Additional Provisions Applicable to Motions
(4) On a motion other than a motion for summary judgment or a contempt order, a party who cross-examines on an affidavit,

EVIDENCE BY EXAMINATION OF A WITNESS

Before the Heating
39.03 (1) Subject to subrule 39.02(2), a person may be examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript of his or her evidence available for use at the hearing.
(2) A witness examined under subrule (1) may be cross-examined by the examining party and any other party and may then be re-examined by the examining party on matters raised by other parties, and the re-examination may take the form of cross-examination.
To be Exercised with Reasonable Diligence
(3) The right to examine shall be exercised with reasonable diligence, and the court may refuse an adjournment of a motion or application for the purpose of an examination where the party seeking the adjournment has failed to act with reasonable diligence.
At the Hearing
(4) With leave of the presiding judge or officer, a person may be examined at the hearing of a motion or application in the same manner as at a trial.
Summons to Witness
(5) The attendance of a person to be examined under subrule (3) may be compelled in the same manner as provided in Rule 53 for a witness at a trial.

EVIDENCE BY EXAMINATION FOR DISCOVERY

Adverse Party's Examination
39.04(1) On the hearing of a motion, a party may use in evidence an adverse party's examination for discovery or the examination for discovery of any person examined on behalf or in place of, or in addition to, the adverse party, and rule 31.11 (use of discovery at trial) applies with necessary modifications.

Party's Examination
(2) On the hearing of a motion, a party may not use in evidence the party's own examination for discovery or the examination for discovery of any person examined on behalf or in place of, or in addition to, the party unless the parties consent. (Feb 1, 1996).