Motions

• Author: Tina Kamakaris/Jane Kamakaris/Louis Kamakaris
• Pages: 257-278

257

Chapter 17 Motions

CHAPTER 17

is chapter discusses motions and their use as a temporary detour from the

main steps of actions and applications.

MOTIONS

Figure 17.1 Steps in Motions

Moving Party’s Motion Record, MP

• notice of motion

• supporting adavit

• factum (if any)

• adavit of service

• served and led at least 7 days before motion hearing

Responding Party’s Motion Record, RP

• adavit in opposition

• factum (if any)

• adavit of service

• served and led at least 4 days before motion hearing

Conrmation of Motion, MP

• sent not later than 2 p.m., 3 days before hearing

Hearing: Order

MP = Moving Party (party who makes the motion) RP = Responding Party

Examination of Witness, MP or RP

• summons to witness (examination out of court)

• served at least 2 days before examination date

Cross-examination on adavit, MP or RP

• notice of examination (on adavit)

• served at least 2 days before examination date

Copyright © 2022 Emond Montgomery Publications. All Rights Reserved.

258 Legal Office Procedures

MOTIONS

Motions are a legal mechanism by which lawyers can request the courts to solve problems

that arise while a proceeding is in progress. Motions are governed by Rule 37 of the

Rules of Civil Procedure and apply in both actions and applications. Motions do not

usually decide a case; they decide only a particular issue within a case; therefore, motions

are seldom independent proceedings, but rather, incidental steps within proceedings: for

example, if a defendant were to le a jury notice where a trial by jury were inapplicable,

the plainti could le a motion seeking a court order to strike out the jury notice. Once

the court grants the order, the jury notice is struck out, and the action returns to its

regular steps, e.g. close of pleadings, discoveries, etc., to be tried without a jury. Here is a

visual example of the motion as an incidental step within an action:

Figure 17.2

Pleadings

Jury Notice, ∆

Motion (to strike out jury notice), ∏

Close of Pleadings

Discoveries

Difference between motions and applications

e steps in motions are almost

identical to those in applications because, like applications, motions are quick and rely

on adavit evidence. One of the major dierences, however, is that an application (like

a statement of claim) is an originating process which begins a proceeding, whereas a

motion is usually an incidental step within an application. Once the court solves the

incidental problem, the application resumes its regular path toward the hearing of the

application.

How are motions made

Motions are made by a document known as a notice of

motion, Form 37A. e party who makes the motion is commonly referred to as the

moving party and the party responding to the motion as the responding party. Note,

however, that in all motion documents, the parties retain their original titles of plainti

and defendant, where the motion is brought in an action, and applicant and respondent,

where the motion is brought in an application. at is because a motion is not an

originating process and, therefore, the parties must carry their respective original titles.

TYPES OF MOTIONS

Motions on notice

Motions on notice are motions that lawyers must serve on all

opposite parties.

Motions without notice

Motions without notice (sometimes referred to as ex parte

motions) are motions where there is no other party involved, or the other party, if any,

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