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Civil Motions in the Superior Court of Justice: A Practical Guide

  • Maciek Piekosz and Cole Vegso

    • A motion is a formal request to the Court for an Order.

    Some motions will be contested, some will be on consent, and for others no position will be taken by opposing counsel. Motions address many issues: routine requests to amend pleadings, contested matters like compelling a certain party to attend at an examination for discovery, complex rulings on legal issues, or even disposing of a matter by way of summary judgment.

    A motion can be brought before any level of Court, but this guideline will provide practical tips about bringing and speaking to motions at regular motions hearing days in the civil Superior Court of Justice in London, Ontario.[1]

    Bringing a Motion

    The formal process required in bringing a motion before the Superior Court of Justice is set out in Rule 37 of the Ontario Rules of Civil Procedure.[2] Rule 37 outlines the required materials, the jurisdiction, and the required forms. To assist counsel, the Law Society of Upper Canada has also produced a detailed guide on the preparation of motion materials, included here as Appendix “A”. A motion will require some or all of the following material:

    Motion Record

    Notice of Motion – Form 37A

    Affidavit – Form 4D

    Consent

    Factum

    Book of Authorities

    Once the motion is put together, serve it on any party affected by the Order sought, per Rule 37.07:

    Once the motion is put together, file it with the Court, per Rule 37.08:

    As the hearing date for the motion approached, confirm the motion, per Rule 37.10.01:

    Preparing for a Motion

    Even if the motion is on consent, or unopposed, obtaining the relief sought in a motion is never a foregone conclusion. In preparation for the motion, you should understand what you are asking for, know the factual and legal basis for the request, and compile the following material:

    Regular Motions Court

    Regular Motions Court typically addresses scheduling, obtaining consent/unopposed orders, speaking to complicated uncontested matters, and speaking to simple contested matters. Only motions that can be heard in 30 minutes or less will proceed at regular motions court in London. Any matter that requires more than 30 minutes must be adjourned to a future special appointment date (this process is discussed further below).

    Regular motions court occurs every Tuesday at 10:00 a.m. The specific courtroom changes weekly and that information is posted near the Court clerks’ office next to the security desk of the ground floor of the London Courthouse. Students should wear a dark or neutral suit, while lawyers are expected to wear their barrister’s robes.

    Preparing to speak to someone else’s Motion

    The party who brought the motion is ultimately responsible for ensuring the proper steps for bringing a motion have been satisfied. However, if you have been asked to attend to speak to the motion, it is you that will be standing at the podium making submissions, in front of the judge, and in front of your colleagues. It is best to independently confirm that the necessary preparation has been completed.

    This is a point younger counsel may struggle with, ensuring they have all the information necessary to speak to the motion they have been requested to address. If you have reviewed the material but still have questions about the relief sought, or questions about the basis on which a Judge can grant that relief, a meeting with and a better explanation from requesting counsel is necessary. Good counsel will respect your request, your attention to detail, and ultimately your desire to be successful at the motion you have been asked to speak to. You may even catch a mistake or oversight that was initially missed when the motion was being put together, earning you the respect of the senior lawyer. Advocating for yourself before you enter the courtroom, and ensuring you have a full understanding of what you have been asked to do, and why, will result in less stress and ultimately more success at motions court.

    Appearing at Regular Motions Court

    Coming through the front entrance of the London Courthouse you are able to use the lawyer and employee line going through security screening. Be prepared to show your LSUC identity card to the police officer. While regular motions court starts at 10:00 a.m., the courtroom opens at 9:30 a.m. and it is wise to arrive early so that you can become comfortable and deal with any issues that may arise. Once you enter the appropriate courtroom, check-in with the court registrar who is located at the front of the court below the Judge’s bench. Advise the registrar which matter on the motions court list you are speaking to and which party you represent.

    At 10:00 a.m., a court services officer will bring the Judge into the courtroom. When the Judge reaches her bench, the Judge will bow and all court attendees will do the same. The registrar will likely then ask that lawyers who have matters that are not on the motions court list to come forward. Note that upon passing the wooden barrier (the “bar”) between the pews and the court tables, you must stop and bow before proceeding. This step is repeated when your matter is complete and you pass the bar on your departure (note, you must also bow when leaving and entering the courtroom if the Judge is sitting).

    If your matter was properly confirmed and appears on the docket, the file should be in the Court room, the motion materials before the Judge, and the Court will be ready to hear your submission. Issues with confirmation can and do arise:

    The registrar will likely call out various matter numbers. The current practice is for the registrar to call simple and quick matters first (i.e. adjournments and consent matters) before getting to contested and/or complex matters. Note that if you wait too long to speak to your matter, you may get stuck behind the contested and/or complex matters which can take 30 minutes.

    Making Oral Submissions at Regular Motions Court

    When you do speak to your matter, always address the Judge as “your Honour”. While there is no set formula for identifying yourself and your matter, it is good practice to develop one that you are comfortable with. For instance, upon reaching the podium, you may wish to do the following:

    Judges are busy and may not have an opportunity to read your motion record. They may be faced with several dozen motions in one day, and may not be specifically familiar with your material. As such, one of your primary roles is to educate the Judge about your matter and the relief you seek. Your initial submission to the Judge should:

    These three points will likely dispose of the majority of simple motions, with the Judge then requesting a draft Order.

    The more complicated the motion, the more information the Judge will require prior to being satisfied that your relief should be granted, and the lengthier your submissions are likely to be. To prepare for more complicated submissions, review the motion record, determine what relief you seek and provide a more detailed overview of the material facts to support the relief sought. You should be prepared to refer the Judge to specific paragraphs or exhibits within your Motion Record. Further, if you are relying on a Rule, statute or case law, you should bring copies for the Judge and all parties, and be prepared to review the relevant sections with the Judge.

    In making your submissions, it is good practice to:

    After you have made your oral submissions you should advise the Judge that you have a draft Order which you would like to pass up for their consideration. If they accept this invitation, you should approach the bench and provide the draft Order to the registrar and return to the podium while the Judge considers it. It is helpful to then review the draft Order with the Judge as she may have questions. After the judge has granted your Order, the Order is not automatically ready for you to return to your office. It must be issued by the Court office and entered into the file. This is typically done automatically within a week or two of the Order being granted, once all the files have been returned from Motions Court to the Court office. Someone at your office will then need to obtain a copy of the Order form the Court office when the Order is ready to be picked up.

    However, you are able to take care of issuing and entering an Order on the same day you attend to speak to your motion. Once the Judge grants your relief, request that the file be brought down to the Court office, or that the Court allow you can take the file down to the Court office, so that the Court staff can issue your Order and enter it into the file on the same day. This might take some time, especially if the Court office is busy, but will in the end save you from having to send an agent back to the Court to pick up the completed Order.

    Upon returning to your office it is good practice to write a memorandum to file or email to the lawyer responsible for the file summarizing your attendance. The contents would include: who the Judge was, a brief description of what occurred, and what the result was. If problems arose, or there were unique circumstances, the memorandum should include more detail. The memorandum is useful for both the lawyer with carriage of the file and yourself.

    Scheduling a Special Appointment

    A common procedure at regular motions court is setting a motion down for a special appointment. Upon arrival at the Courtroom, you will speak to the registrar to determine what dates are available for your special appointment. It is a good practice to have three dates agreed upon by counsel because this provides you with flexibility. Once you secure an appropriate date you will need to speak to the Judge to confirm it. In addition, you will need to present the Judge with a Certificate of Readiness of Special Appointment which must include a timetable.

    If none of the three dates you were provided with are available, you should immediately speak with opposing counsel to determine new dates. If you are the only party appearing, it is easiest to speak with the clerk at your office who can hopefully obtain fresh dates in a timely manner. If that is not possible, the normal step is to obtain a one week adjournment of the special appointment scheduling in order to obtain new dates.

    Civility at Motions Court

    Counsel have a responsibility to maintin civility both inside and outside the courtroom. Regular Motions Court is a good place for young counsel to begin their careers with that responsibility in mind. It is also the the place where the advantage of civilty over incivility will be on full display, as neatly summarized in The Trial of an Action at para 1.31:

    “[Good advocacy] aligns counsel not only with the demands of the administration of justice, but with the natural sympathies of the judge.[3]

    This is also stated very well in Making your Case: The Art of Persuading Judges

    “An ever-present factor, and one that you can always influence, is the human proclivity to be more receptive to argument from a person who is both trusted and liked. All of us are more apt to be persuaded by someone we admire than by someone we detest.”[4]

    While in Court, defer to senior counsel, be courteous but firm with opposing counsel (even if they are your senior), and most importantly, be polite and respectful to the Judge. Recognize that the Judge has likely seen the type of motion you are speaking to many times before, and they have the power to award or deny you your relief, make it easy on them, and you will make it easy on yourself.

    Conclusion

    In summary, preparation is key. To ensure a successful motions court appearance, take the time to check that all documents have been filed correctly and that you are familiar with the subject matter. Putting in the work ahead of time will mean you are providing good representation for your client and for the senior lawyer you are working with.

    [1] This paper will not address the process of responding to a motion brought against your client. However, the same principles and materials generally apply, although the applicable Rules may vary.

    [2] RRO 1990, Reg 194.

    [3] J. Kenneth McEwan, Q.C., Sopinka on the Trial of an Action 3rd Ed. (LexisNexis Canada Inc., 2016) at par 1.31.

    [4] Antonin Scalia and Bryan A. Garner, Making your Case: The Art of Persuading Judges (St. Paul, Thomson/West, 2008) at xxiii-xxiv.

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