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

A motion is a formal request to the court for an Order. Motions may be contested, on consent, or unopposed (i.e., no position is taken by opposing counsel). Motions address many issues, including: routine requests to amend pleadings; contested matters, like compelling a certain party to attend at an examination for discovery; and complex rulings on legal issues.

A motion can be brought before any level of court. This guideline will provide practical tips for bringing and speaking to motions at Regular motions hearing days in the civil Superior Court of Justice in London, Ontario.^[1]

Contents

• Bringing a Motion
• Preparing for a Motion
• Preparing to Speak to Someone Else’s Motion
• Appearing Virtually at Regular Motions Court in London
• Making Oral Submissions at Regular Motions Court
• Scheduling a Special Appointment
• Civility at Motions Court

Bringing a Motion

Rule 37 of the Ontario Rules of Civil Procedure outlines the formal process for bringing a motion before the Superior Court of Justice.^[2]  Motions require some or all the following material:

Motion Record

• Under Rule 37.10, you are required to consolidate your motion material into one easily referenced package for the Judge.
• A Motion Record shall contain a table of contents, a copy of the notice of motion, all affidavits, relevant examination transcripts, and any other material in the court file that is necessary for the hearing of the motion.

Notice of Motion – Form 37A

• Form 37A must contain the relief sought and the basis for that relief. It will also formally indicate the day you have made the motion returnable.
• Regular motions court hearing days vary depending on the jurisdiction. In London, they are held virtually on Friday each week. 
• To select a date, confirm when Regular motions court occurs in the relevant jurisdiction (i.e., Windsor, Chatham, Guelph, etc.) and choose your desired date.
• It is good practice to canvas dates with the opposing parties.

Affidavit – Form 4D

• This form contains the evidence you will rely upon to argue that your relief should be granted.

Consent

• Motions on consent or unopposed are heard in writing unless the court orders otherwise. The formal Consent and the Draft Order are filed with the Notice of Motion and the motion proceeds as a ‘basket motion’ under Rule 37.12.1.
• Depending on what type of relief you are seeking, the Consent can be obtained prior to compiling and serving your material and can form part of your material.

Factum

• A factum is a concise written argument setting out the facts, the legal authority relied on, and your argument. Not all motions will require a factum—at Regular motions court days, they are rarely needed.
  • Factums are mandatory at Special Appointment motions.

Compendium

• A Compendium listing all the authorities referred to within the factum, with the relevant paragraphs of each case excerpted for the Judge’s ease of reference, must be uploaded to Case Center (formerly CaseLines) pursuant to Rule 4.05.3(3).

Once the motion materials are compiled, serve them on any party affected by the Order sought, as per Rule 37.07:

• Rule 37.07 applies equally to persons who are not parties to the action, provided they will be affected by the Order sought.
  • After service has been made, an Affidavit of Service (Form 16B) must be sworn. This document is your evidence that the proper parties were served.
  • Without an Affidavit of Service, you cannot file your motion with the court.

After the motion has been compiled and served, file it with the court office, as per Rule 37.08 and upload it to Case Center (formerly CaseLines):

• All motions materials are to be filed with the courthouse electronically via this portal.
  • Ensure that you are abiding by the naming protocol when submitting documents electronically. The document must include the following information: 1) the document type; 2) the type of party submitting document; 3) the name of party submitting document (including initials if the name is not unique to the case); and 4) the date on which document was created/signed in the DD-MMM-YYYY format. For example, “Expert Report – Defendant – A. Wong – 13-MAR-2021”.

Confirm the motion 5 days prior to your hearing date, as per Rule 37.10.1:

• A Confirmation Form (Form 37B) is due 5 days before the hearing date, as calculated under Rule 3.01. As motions court occurs on Fridays in London, all motions must be confirmed by 2 pm on the previous Friday.
  • After conferring or attempting to confer with the other party, email Form 37B to both [email protected] and [email protected]. A copy should also be sent to the other party via email.
  • Unconfirmed motions will not be heard.

In Ontario today, the general rule is that short motions are heard virtually over Zoom and long motions are heard in person at the local courthouse. This rule varies by jurisdiction.

Preparing for a Motion

Obtaining the relief sought 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 have the following materials readily accessible in digital form:

• Confirmation of Motion – Form 37B: If the motion is not on the motions list, you can send this document to the Registrar to demonstrate that the motion was properly confirmed when asking for leave to have the motion heard.
• Affidavit of Service – Form 16B: Without an Affidavit of Service, a Judge will have no way of knowing that all appropriate parties have been served and will have to adjourn or strike your motion. Make sure to keep a copy on hand, as well as having filed and uploaded to Case Center.
• Legal Authority: Keep a digital copy of the Rules of Civil Procedure handy. Use CanLII to turn up any cases you will be relying on.
• Draft Order – Form 59A: A draft Order should reflect the relief you are seeking in your Notice of Motion. Prior to virtual court, review the draft Order—fix spelling errors, incorrect dates, and hanging signature lines. It is good practice to have consenting parties review the draft Order and approve it as to form and content. Though less ideal, in the absence of a draft Order you can request that the Judge endorse the record per the relief sought.
• Certificate of Readiness for Special Appointment with timetable: This document is necessary when scheduling a Special Appointment. When preparing the form, leave the date portion blank to be filled in when the proposed date and time can be confirmed.
• Costs Outline – Form 57B: If parties have not agreed on the costs in advance, every party who intends to seek costs shall provide the other parties with a costs outline.

Preparing to Speak to Someone Else’s Motion

The lawyer with carriage of the file is ultimately responsible for ensuring the proper steps for bringing a motion have been satisfied. However, if you are speaking to the motion, you will be the advocate appearing in virtual court, making submissions in front of the judge and your colleagues. As such, confirming that the necessary preparation is complete is essential.

If you reviewed the material but still have questions about the relief sought or the basis on which a Judge can grant that relief, schedule a meeting with the requesting counsel to discuss. Advocating for yourself before you enter the courtroom—ensuring you fully understand what you are doing and why—will result in a less stressful, more successful day at motions court.

Appearing Virtually at Regular Motions Court in London

Only motions that can be heard in less than 1 hour or less will proceed at Regular motions court in London. Any matter that requires more than 1 hour must be adjourned to a future Special Appointment date, as discussed below.

Regular motions court occurs every Friday at 10:00 am. The link to access the virtual courtroom can be found at the Superior Court of Justice Daily Court Lists website. The docket is also sent to counsel in the region at the end of each day.

You should join the virtual courtroom 10 minutes before 10 am to ensure that you can log in properly. The same level of etiquette and protocol of a physical courtroom is expected when attending virtual court. Students should wear a dark or neutral suit, while lawyers must be gowned. Mute yourself when you are not addressing the court.

If your matter was properly confirmed and appears on the docket, the motion materials should be accessible to the Judge via Case Center—the court will be ready to hear your submission. If your matter was confirmed but it does not appear on the docket, briefly explain that to the Judge and direct them to the Confirmation of Motion form on Case Center. Ask for leave for your matter to be heard. If your matter was not properly confirmed, it will not be heard.

Once motions court opens, the Registrar will likely call out various matter numbers. The current practice is for the Registrar to first call simple and quick matters (i.e., adjournments) before getting to contested or complex matters. Be aware that if you wait too long to speak to your matter, you may get stuck behind the contested or complex matters, which can take up to 60 minutes each.

Making Oral Submissions at Regular Motions Court

When you speak to your matter, always address the Judge as “your Honour”. There is no set formula for identifying yourself and your matter—develop one you are comfortable with. For instance, upon unmuting yourself, you may say:

“I would like to speak to matter #27 on your list, your Honour. For the record, last name Hamilton—H.A.M.I.L.T.O.N—first initial G. I am an articling student at Siskinds LLP, and I am here on behalf of Cole Vegso, lawyer for the (insert plaintiff or defendant).

My friend (insert name of opposing counsel) is here for the (insert plaintiff or defendant) (or advise the court if they are not in attendance).”

Judges are busy. 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 provide a brief overview of the matter—e.g., “this action involves a claim for damages following a 2014 motor vehicle accident”—and tell the Judge what you want, such as “we seek an Amendment to the Statement of Claim”.

More complicated motions require more information to satisfy the Judge that your relief should be granted—your submissions will likely be longer, with a more detailed recitation of the facts. Be prepared to refer the Judge to specific paragraphs or exhibits within your Motion Record. Have the digital version of any Rule, statute or case law relied upon readily accessible.

In making your submissions, it is good practice to:

• Stop talking when the Judge is writing (or allow breaks so that the Judge may catch up) so that they can record your submissions.
  • Never mislead the Judge by guessing or asserting something you do not know to be true when answering a question.
  • Ask the Judge to “stand the matter down” to obtain instructions or further information from the lawyer responsible for the file, if required. Standing the matter down should be rare, but do not hesitate to do so if you need help.

After you have made your oral submissions, you should advise the Judge that your Draft Order is on Case Center for their review. If granted by the Judge, the Order will be uploaded to Case Center, for you to have it issued by the court office and entered into the file.

Once you have spoken to your motions, inform the Judge that those are all your matters and ask to be excused. It is good practice to write a Memorandum to File or email the lawyer responsible for the file immediately after leaving virtual court: note the name of Judge and summarize what occurred, including the outcome. Outline any problems encountered or unique circumstances in greater detail.

Scheduling a Special Appointment

Setting a motion down for a Special Appointment is a common procedure at Regular motions court. On the Friday return of the motion, a Special Appointment date may be obtained from the court Registrar between 9:30 and 10:00 am. It is good practice to come prepared with three dates agreed upon by counsel. Once you secure an agreeable date, you must speak to the Judge to confirm it when the matter is called after 10:00 am. Crucially, you must present the Judge with a Certificate of Readiness of Special Appointment that contains a timetable—judges will not grant a Special Appointment in the absence of this document.

If no previously agreed-upon date is available, contact opposing counsel immediately to determine new dates. If you are the only party appearing, ask a clerk at your office to confer with the opposing counsel and obtain fresh dates. If they are unable to get in contact with opposing counsel, the best option is to obtain a one-week adjournment of the Special Appointment scheduling to obtain new dates.

Civility at Motions Court

Counsel has a professional responsibility to maintain civility both inside and outside the courtroom, whether in-person or virtual. With this responsibility in mind, Regular motions court is a great place for young counsel to begin their litigation careers. 

While in Court, defer to senior counsel, be courteous but firm with opposing counsel (even if they are your senior), and most crucially, 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. They have the power to award or deny your relief—make it easy on them, and you will make it easy on yourself.

Conclusion

Preparation is essential. To ensure a successful motions court appearance, verify that all documents were filed properly and review the subject matter of the motion. Meticulously preparing beforehand will allow you to cultivate a positive impression with senior counsel and, most importantly, skillfully represent your client at the motion.

[1] This paper does not address the process for responding to a motion brought against your client. Generally, the same principles and materials generally, though the applicable Rules may vary.

[2] RRO 1990, Reg 194.

Special thanks to Georgia Hamilton, articling student, who helped write this article.