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BARRISTER – CIVIL LITIGATION – MOTIONS – GENERAL PROCEDURE

MOTION CHECKLIST

MOTION CHECKLIST EXPANDED (moving party must take these steps) – p 225R, 3.8

1. Identify the RULE or statutory provision under which the motion will be brought

2. Determine whether the motion will be before a JUDGE or MASTER

a. Must be made to court if w/in master’s jurisdiction; otherwise to judge (223R, 2.9)
b. Where judge only (generally): Statute/rule expressly provides; set aside, vary, amend
another judge’s order, including extending time; party under disability; questions of law
(210L); determination of an issue before trial; special case (211R); relating to liberty of the
subject; or set aside or vary default judgment (under R 19.05) (Rule 37.02(2)) (see p
211L, 2.8)

3. Book an APPOINTMENT for hearing of the motion (if required (i.e. if local practice direction
requires it)) – have to ask local registrar

4. At least 7 days before the date of the motion (r. 37.07(6), p222R, 2.6.4) draft, serve and file
NOTICE OF MOTION (Form 37A) including proof of service (r. 37.08(1))
a. Notice must state precise relief sought; grounds to be argued, including reference to stat
provision or rule; documentary evidence to be used at hearing r. 37.06 (refers to 4 types
of evidence under R 39)
b. Notice under rule 37.07 may not be required (p 222R, 2.6.3): e.g., interlocutory injunction
(for period not exceeding 10 days, unless time period extended under r. 40.02 ) (p 223L,
2.8.1); motions where the rights of a party are not affected (e.g., to extend time for third
party claim, add a party) (p 222R, 2.6.3)
c. If motion is in writing (on consent, unopposed, or made without notice) (see p 224L, 2.12).
If on consent, file the consent and draft order with the notice of motion as well (r.
37.12.1(2))! If opposed, motion must be brought on 14 days’ notice and filed with a draft
order and factum (r. 37.12.1(4))
d. Response should be within 10 days of service of moving party’s material on a motion to
be heard in writing (see p 224R, 2.12.1, r. 37.12.1(5))
e. If serving notice is impracticable or delay in serving entails serious consequences, court
may make interim “ex parte” order without notice (rr. 37.07(1)-(4)) (see 222LR, 2.6.1)
f. Where service not required, file at or before hearing (222R, 2.6.5)

5. At least 7 days before the date of the motion serve and file (w/ proof of service) MOTION
RECORD (see p 224R, 3.1, r. 37.10)
a. At least 4 days before the hearing responding party may serve and file (w/ proof of
service) responding party’s motion record incl. info missing from moving party’s motion
record (if required/desired) (225L, 3.3)
b. Contents of motion record: see list at p 224R, 3.1

6. File TRANSCRIPTS of evidence (if party intends to refer to it) (r. 37.10(5))
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7. At least 7 days before the date of the motion: Moving Party serve and file FACTUM if
required/desired (r. 37.10(7))
a. At least 4 days before hearing: Responding Party’s factum (as part of motion record)
on every other party with proof of service (p. 213L, 3.6) (r. 37.10(8))
b. Factum required for some motions: Summary judgment (R 20); determination of a point of
law (R 21); interlocutory injunction (R 40), discharge a certificate pending litigation (R 42)
(p 225L, 3.6). But factums are a practical necessity on almost all motions now.
c. On a Motion to compel answers or to satisfy undertakings: file Refusals and
Undertakings Chart (Form 37C) (see p 225R, 3.7). File with proof of service: 7 days
before hearing (moving party), 4 days before hearing (responding party)

8. CONFER, or attempt to confer, with other party (see p 223R, 2.10, r. 37.10.1(1))

9. By 2:00 PM, 3 days before hearing date provide registrar CONFIRMATION OF MOTION
(Form 37B) + send a COPY to the responding party (see p 223R, 2.10)

10. HEARING (p 224L, 2.11)

a. Attendance open to public generally, s.135(1) subject to s. 135(2) of CJA (unless harm or
injustice, by order of court under r. 37.11(2)).
b. Motion may be heard in writing if on consent, unopposed or made w/out notice (see p
224L, 2.12)
i. Moving party may move for motion be heard in writing w/out attendance (When
opposed with at least 14 days notice)
i. W/in 10 days of service of moving party’s material on motion . Responding party must
respond (224R, 2.12.1)

JURISDICTION TO HEAR A MOTION – p 223L, 2.8, r. 37.02

Jurisdiction of Judge
(1) Jurisdiction to hear any motion in a proceeding (37.02(1))
Jurisdiction of a Master
(2) Jurisdiction to hear any motion in a proceeding, and has all jurisdiction of a judge in respect of
a motion, EXCEPT:
(a) Power to grant relief sought is conferred expressly on a judge by a statute or rule;
(b) Set aside, vary or amend an order of a judge;
(c) Abridge or extend a time prescribed by an order that a master could not have made;
(d) Judgment on consent in favour of or against a party under disability;
(e) Relating to the liberty of the subject;
(f) Under ss 4 or 5 of the Judicial Review Procedure Act; or
(g) in an appeal.
(h) Interlocutory injunctions (r. 40, p 223L, 2.8.1)
Jurisdiction of Registrar (p 143L, 1.3.1, r. 37.02(3))
(3) Registrar shall make an order granting the relief sought on a motion for an order on consent,
IF:
(a) Consent of all parties (including the consent of any party to be added, deleted or
substituted) is filed;
(b) Consent states that no party affected by the order is under disability; and
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(c) Order sought is for:

(i) Amendment of a pleading, notice of application or notice of motion,
(ii) Addition, deletion or substitution of a party,
(iii) Removal of a lawyer as lawyer of record;
(iv) Setting aside the noting of a party in default,
(v) Setting aside a default judgment,
(vi) Discharge of a certificate of pending litigation,
(vii) Security for costs in a specified amount,
(viii) Re-attendance of a witness to answer questions on an examination,
(ix) Fulfillment of undertakings given on an examination, or
(x) Dismissal of a proceeding, with or without costs.

MOTIONS — TO WHOM TO BE MADE – p 223R, 2.9, r. 37.04

● Court – if it is within the jurisdiction of a master or registrar
● Judge – Otherwise

MOTION RULE OUTCOME WHEN JUDGE or FACTU PAGE,

MASTER M SECTIO
REQ’D? N
MISCELLANEOUS
Amend 26 Mere modification At any stage (so Judge or No 202R, 5
pleadings or extension of long as just, no Master
cause of action or prejudice)
to correct (a) Before close of
misnomer pleadings w/out
leave (if not
adding/deleting
parties)
(b) w/ consent if
adding/deleting
parties
(c) w/ leave
Complicate 37.15 All motions in the When proceeding Judge No 223L,
d proceeding(s) involves 2.8.2
Proceeding heard by a complicated
s particular judge issues/two or
more proceedings
involving similar
issues
Consequen 37.07( Dismiss motion When person who Refer to p No 222R,
ces where 5) completely or should have been 223, s.2.8 for 2.6.2
no notice of only against served not served jurisdiction of
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motion person not judge and

served served; adjourn master
motion and direct
serving of notice;
or direct that any
order made on
motion be served
on person not
served
Interlocutor 40 Preserves rights After Judge 223L,
y Injunction during litigation commencement of 2.8.1
(for 10 days) proceedings
Motion 37.17 Commencement Before No 221R-
before of proceedings proceedings 22L,
proceeding commenced 2.4.1
commenced
Motion Many Enforce or assist After final No 222L,
post- rules enforcing judgement 2.4.2
judgement (e.g. judgement pronounced at trial
Rule
60,
enforc
ement
of
orders
)
Prohibit 37.16 When party is Judge or No 228R, 5
other party trying to delay Master
from proceeding
making
further
motions
w/out leave
Security for R Party required to By Judge or Yes 308R-
costs 56.01 post security for def./respondent Master 309L,
costs during See p 297 for 4.6
proceeding as a requirements
term of continuing
w/ prosecution

DISPOSITION WITHOUT TRIAL

Default 19.05 Disposes of After def. fails to Judge or No 206R,
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judgment action (re that deliver SOD Master 2.3

relief)
Set aside or 19.03 Set aside or vary After default Judge (re No 207LR,
vary default and default judgment judgment granted 19.05 & 2.4
judgment 19.08 10.08)
Judge or
Master (re
19.04)
Summary 20 Disposes of If Pl.: after def. Judge or Yes 208L, 3
judgment action has delivered Master
SOD or served a Judge (re R
notice of motion 20.04(4)
If def.: after issue of
delivering SOD law))
Determinati R Dispose of all or Before trial, Judge Yes 210L,
on of an 21.01( part of action promptly 4.1
issue of law 1)(a)

No R Dispose of all or Before trial, Judge Yes 210R,

reasonable 21.01( part of action promptly. When 4.2
cause of 1)(b) the pleading is
action or insufficient in law.
defence
Stay or R Dispose of all or Before trial, Judge Yes 210R,
dismissal 21.01( part of action promptly. When 4.3
3) the court has no
jxn, party has no
legal capacity,
frivolous/vexatious
Striking all R Dispose of or After a pleading, Judge or Not 203L, s
or a portion 25.11 amend part of promptly (before Master specified 6.1
of pleadings action entering a
or other pleading in
document response to the
impugned
pleading)
Particulars R Obtain particulars Before the moving Judge or Yes/ 204L,
25.10 of an allegation in party serves its Master motion 6.2
the other party’s own pleading, supporte
pleading after making a d by
written demand affidavit
attesting
to
party’s
need for
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particula
rs
DISCOVERY (SOME! – see rest in Chapter 28)
Production 30.10 Production of After reasonable Judge or No 239L,
for documents efforts to obtain Master 4.9
inspection docs from parties
from third have failed
parties
Refusals 31.07 Production of After reasonable Judge or Not 225R,
and documents/evide efforts to obtain Master specified 3.7
Undertaking nce docs from parties
s motion have failed
Direction 34.14( Costs and re- After or during Judge or No 250R-
from court 1) attendance examination for Master 251L,
re discovery 5.5.10
continuatio
n of
examination
for
discovery
where
improper
conduct