Updated June 2012
This How-To Brief outlines the steps to take to prepare for and argue a contested civil motion.
Note: The following Brief sets out the steps to be taken by the moving party. While similar steps apply to the responding party, necessary modifications will be required to respond to the motion and argue any cross-motions. Note also that r. 76.05 of the Rules of Civil Procedure governs motions in actions under simplified procedure and that 77.07 of the Rules governs motions in actions and applications subject to case management.
1Gather what you will need
- The client's file
- The motion materials, including notice of motion, affidavits, facta (if any), relevant transcripts and previous court orders
- Rules of Civil Procedure
- Applicable practice directions (See the link to the practice direction of the Superior Court of Justice effective January 1, 2010, which introduces a number of scheduling and administrative changes for motions (and other matters) heard in the Toronto region in the Resources section of this How-To Brief.)
- Rules of Civil Procedure Forms:
- Form 37B, Confirmation of Motion
- Form 57B, Costs Outline
- (See the link to the Rules of Civil Procedure Forms in the Resources section of this How-To Brief.)
- Courts of Justice Act
- Firm precedents, if any, and library resources for precedent material
2Review the notice of motion
- Note relevant details of the motion, including the date, time and place. Follow any applicable practice directions for confirming the hearing of the motion.
- Confer, or attempt to confer, with opposing parties in accordance with r. 37.10.1(1).
- Fax, email or deliver a confirmation of the motion in Form 37B to the registrar not later than 2 p.m. three days before the hearing.
- Send a copy of the confirmation of the motion to the other parties by fax or email.
- Note the relief being sought.
- Review the grounds of the motion, including the relevant statutory provisions and applicable rules.
3Review the factum and evidence to be relied upon insupport of the motion
- Where a factum is being used, read all the sections of the factum: facts, issues, argument and conclusion.
- Facts: Gather documentary evidence that will be relied upon at the motion, such as affidavit(s), relevant transcripts, previous court orders and any other such documents. Read the evidence thoroughly, marking key pages and paragraphs for ease of reference during the hearing.
- Argument: Read the relevant statutory provisions, applicable rules and supporting case law, tabbing key pages and paragraphs. Ensure that you understand all angles of the relevant legal tests. Identify favourable, factually similar cases to be brought to the judge's or master's attention.
4Review the opposite party's motion materials
- Review any facta filed by the opposite party or parties. Make note of any factual or legal assertions in the opposite party's factum that are not supported by the evidence on the motion or applicable law.
- Review any case law filed by the opposite party or parties. Identify strategies to neutralize or distinguish unfavourable cases.
- Read affidavits and documentary evidence being relied upon by the opposite party or parties. Highlight or mark areas that support the opposite party's position so that you can prepare proper counter-arguments.
5Prepare legal submissions
- Consider whether any of the issues raised in your notice of motion or factum are particularly strong or weak based on all of the evidence and applicable law.
- Create an outline of your motion submissions. In some cases, you may wish to follow the structure in your notice of motion or factum. In other cases, you may wish to focus your submissions on your strongest arguments, leaving weaker points for more summary treatment at the end of your submissions or abandoning them altogether. This strategy may be especially important where you have only limited time in which to argue the motion.
- Make a point-form list of the main legal arguments to be made in support of your client's position. Create clear references to key cases and sections of affidavits and other evidence that you will cite in support of your legal arguments.
- Anticipate areas of weakness and possible challenges by the other side, the judge or the master. Prepare answers, counter-arguments and counter-challenges.
- Conclude your submissions with a brief, concise summary of the argument that re-emphasizes your strongest points.
- Review R. 37 regarding the procedure to be followed on motions.
- Review submissions with a colleague. Practise submissions to ensure that your argument is smooth and your materials are well organized.
6 Prepare submissions as to costs
- Review R. 57 regarding costs of a motion. Determine if the motion constitutes an "exceptional case" (in which case the costs of the motion will be referred for assessment under R. 58) or justifies a departure from the court's general approach to fixing costs of the motion payable within 30 days.
- Review the other possible dispositions as to costs:
- costs in the cause
- costs to a specified party in the cause
- costs to a party in any event of the cause
- costs payable forthwith after assessment thereof
- costs reserved to the trial judge
- no costs
- Unless you are able to agree, in advance, with the other party or parties to the motion on the amount of costs to be awarded to the successful party, prepare and give to every other party involved in the motion a costs outline not exceeding three pages in length (Form 57B). Bring a copy of your costs outline to the motion for submission to the court if necessary (r. 57.01(6)).
Costs in the cause: Such an order entitles the party who is awarded the costs of the proceeding as a whole to receive the costs of the motion.
Costs to a specified party in the cause (e.g., "costs to the plaintiff in the cause" or "costs to the third party in the cause"): Such an order entitles the named party to receive the costs of the motion if that named party is awarded the costs of the proceeding as a whole.
Costs to a party in any event of the cause (e.g., "costs to the plaintiff in any event of the cause"): Such an order entitles the named party to receive the costs of the motion no matter what order (if any) is made as to the costs of the proceeding as a whole and no matter what the outcome of the proceeding as a whole may be.
Costs payable forthwith to a party after assessment thereof: Such an order entitles the named party to immediate assessment and payment of the costs after the motion, notwithstanding that the proceeding as a whole, or any other aspect of the proceeding, has not yet been determined.
Costs reserved to the trial judge: Such an order reserves the costs of the motion for disposition by the trial judge. Unless the trial judge specifically disposes of the costs of the motion, no party will be entitled to receive the costs of the motion. Where such an order has been made in the course of a proceeding, the parties should remember to ask the trial judge to hear argument on, and to make a cost order with respect to, the motion on which the order was made.
No costs: Such an order means that no costs of the motion are to be paid by or to any party. It constitutes adjudication on the issue of costs and should be included in the formal order that results from the motion.
Statutes and Rules