In our court system today, the reality is that very few lawsuits actually proceed all the way to trial. Instead, most cases settle at some earlier point in the process.
The balance of power in settlement negotiations often depends upon the outcome of motions brought in the case. Motions consequently play a very important role in litigation.
A motion is a request made to the Court. Motions are brought for innumerable different reasons. Some of the most common reasons for bringing a motion include:
a) to ask a judge for permission to change your Statement of Claim or Statement of Defence;
b) to ask a judge to order your opponent to provide more details in his or her Statement of Claim or Statement of Defence;
c) to ask a judge to order that your opponent answer your questions about his or her case; and
d) to ask the Court to decide your case prior to trial on the basis that there are no issues which a trial is required to resolve.
Some motions which are very straightforward can be dealt with by a judge on the basis of written materials alone. Most motions however, are argued in person before a judge. This means that each party must attend Court to explain to the judge why the request made in the motion should be granted, or alternatively, why it should not be granted.
WRITTEN MATERIALS REQUIRED
Before the motion is argued in Court, you are required to submit written materials to the Court and to deliver these materials to your opponent. The rules with respect to the period of time prior to the motion at which you must provide these materials to your opponent vary depending on the type of court the motion will be argued in. The necessary materials are:
a) a Notice of Motion.;
b) an affidavit;
c) a factum; and
d) a book of authorities.
The Notice of Motion briefly explains the request which is being made and the basis for the request. Only the party who has made the request completes a Notice of Motion.
An affidavit is a sworn written statement made by someone who has knowledge of the background facts relevant to the motion and can explain these facts to the judge. Any relevant documents should be included as exhibits to the affidavit. It’s important to understand that all the evidence you are relying upon is required to be included in an affidavit. You must sign your affidavit in the presence of a Commissioner of Oaths, such as a lawyer or a law clerk.
A factum is a written legal argument. It summarizes the relevant facts and evidence from the affidavit. It also explains the law as it relates to the motion. This includes the relevant court rules and the decisions of the courts in other motions which are similar to yours.
The Book of Authorities contains the court decisions which you have referenced in your factum.
The decision of the judge will be based upon the written materials and the arguments made in Court by each party.
ASSESSING YOUR PROSPECTS
If you are considering bringing a motion, or if a motion has been brought against you, it is important to assess your prospects for success in order to decide how to proceed. This should involve a consideration of the evidence and some research regarding the relevant court rules and cases.
You shouldn’t bring a motion unless you stand a reasonable chance of success. Similarly, if a motion is brought against you and your research indicates that you are likely to lose, you should consider agreeing to the request your opponent has made. It is important to be realistic about your chances for success because the judge will normally order the losing party to pay part of the successful party’s legal costs for the motion. These costs could total tens of thousands of dollars.
Most motions involve substantial time and effort to prepare for and address. As a result of this, and due to the risk that you could be ordered to pay your opponent’s legal costs, it is critical that you make wise decisions regarding whether to bring a motion and how to respond to a motion brought against you.
If you need representation on a motion or some advice with respect to the motions process, please feel free to contact us to discuss your options.