**This article is on Rules of Civil Procedure which are used for civil litigation at the Ontario Superior court. It does not apply to family law or Small Claims court.**
This week, our videos explain what the words “motion”, “application” and “action” mean in a lawsuit.
When I involved in litigation before I went to law school, I had assumed that the rules of procedure could be understood simply by applying common sense. Little did I know how untrue this would be! In fact, words that look like plain English have special legal meanings. In particular, the words “motion”, “action” and “application” are very important words to be understood in the context of litigation.
I had thought wrongly that lawsuit procedure is pretty straight forward. The parties in civil litigation (as distinguished from criminal cases) would exchange notices to each other and the plaintiff would file the claim at the court. Next, the parties would argue their position in front of the judge, who would decide who wins. End of case. Unfortunately, as it turns out, not only are there over 60 rules that apply to a lawsuit (at Ontario Superior court, for matters that are not Small Claims or Simplified Procedure), there are also different ways you can bring a lawsuit. The most common way is through an “action”. This type of lawsuit involves several pre-trial procedures that allow the parties to find out more about each other’s case. It culminates in a trial, where witnesses, which may include the parties themselves, testify orally in front of the judge. They also are subject to being cross-examined by the opposing counsel. The common law justice system takes a lot of pride in this cross examination stage. Cross examination is supposed to bring out the truth.
There is another type of lawsuit called an “application”. There are no live witnesses at the hearing. Parties exchange evidence in the form of affidavits and legal arguments beforehand, which will also be read by the application judge. Only certain types of disputes can be heard using applications (refer to Rule 38 “Applications” http://canlii.ca/t/t8m). The advantage of bringing applications is that since it involves fewer steps and no live trial, it should be more cost efficient.
Finally, there is something called “motions” within a lawsuit. A motion is a court hearing that occurs before the trial or application hearing. Motions are like mini-hearings, where lawyers argue in front of the motion judge. These are usually on procedural issues. For example, if your opponent did not comply with a certain rule, you can “bring a motion” to ask the judge to compel them to do so. It was quite a surprise to me that a lawsuit can generate multiple motions. In fact, sometimes, parties have been known to bring motions to try to wear down the opponent, financially and emotionally. It is bad practice for a party to bring frivolous motions for this purpose. The party affected by this type of conduct can ask the motion judge to award costs against the other side.
The Ministry of Attorney General has court forms here: http://ontariocourtforms.on.ca/en/rules-of-civil-procedure-forms/
Law Society of Ontario has a guide on motions. https://lso.ca/lawyers/practice-supports-and-resources/practice-area/civil-litigation/how-to-bring-a-motion
Law Society of Ontario also has a database of articles from CPD programs, called Access CLE. Do a keyword search to find articles specific to your subject area.
Check out my video on how to use Access CLE.
Hassell Trial Counsel has a great guide on the steps involved for motions. The website also has template forms or “precedents” that are more detailed and guided than the ones at the Ministry of Attorney General’s website. These can be purchased here: https://trialcounsel.ca/how-to-bring-a-motion-in-superior-court/