What is a Motion?
A motion is an oral or written application requesting a court to make a specific ruling or order in favour of the applicant. There are a variety of motions available to litigants, and they can be brought at any time during the litigation and even before the litigation. Motions are strategically important and can sometimes result in the dismissal of the action early on in the litigation process. Even if the action is not dismissed, motions can be used to gain a tactical advantage.
Rule 2.1 – Vexatious Litigants
Individuals who repeatedly commence meritless proceedings or use the court system to harass or subdue opponents may be declared a “vexatious litigant” by the Court. Vexatious litigants must obtain leave of the Court before instituting or continuing proceedings. Where such leave has not been granted or the order declaring the party a vexatious litigant has not been rescinded, and the vexatious litigant has commenced proceedings, then such proceeding may be dismissed upon a motion to the Court.
However, this Rule only applies in the clearest of cases in which the lack of merit in the claim is apparent on the face of the pleadings and where there is a superadded basis to be concerned about abuse of the court’s processes.
The Court may also dismiss a proceeding or a motion if it appears, on its face, to be frivolous or vexatious or an abuse of the court’s process. The Court can deal with this motion in a summary way and in writing.
Rule 15.04(8) – Dismissal for Counsel Getting Off the Record
Under Rule 15.04, lawyers may make a motion for removal as lawyer of record when the lawyer faces an inability to obtain instructions from the client, there is a breakdown in the relationship, or the client fails to pay the lawyer’s fees. If the motion is granted to remove the lawyer of record, then, in certain circumstances, the client is required to appoint a new lawyer. For example, corporations must be represented by a lawyer.
If the client does not appoint a new lawyer or serve a notice of intention to act in person, the Court may dismiss the client’s proceeding or strike out his or her defence.
Rule 20 – Summary Judgment
Summary judgment is a judgment rendered by a court “summarily” – i.e., without a full trial. Any party to an action may make a motion for summary judgment where the other party can produce no or insufficient evidence to support the allegations made in its Statement of Claim or Statement of Defence. The granting of summary judgment disposes of claims or defences that cannot be proved, without the need for a full trial with oral evidence.
Rule 20 motions deal with issues of fact; where there is a factual dispute between the parties or where there is evidence to support a party’s claim or defence. Motions for summary judgment are appropriate where a case is frivolous or lacking in merit.
The test on such motions is whether there is no genuine issue requiring a trial. In deciding whether or not there is a genuine issue for the trial, the judge may:
- Weigh the evidence;
- Evaluate the credibility of a deponent;
- Draw any reasonable inference from the evidence, unless it is in the interests of justice for such powers to be exercised only at the trial; and/or,
- Order oral evidence be presented by one or more parties.
In 2014, the Supreme Court of Canada ruled in Hryniak v Mauldin, 2014 SCC 7, that motions for summary judgment are a significant alternative model of adjudication and recommended the use of such motions to increase access to justice. Moreover, the Court held that even where a trial is necessary, the court has additional power to make orders to expedite the proceeding, such as:
- Specifying the material facts not in dispute;
- Defining issues to be tried; and/or,
- Ordering that the action proceed to trial expeditiously.
In practice, however, in this writer’s experience, the Ontario Superior Court of Justice is still reluctant in granting motions for summary judgment and is reluctant in exercising the additional powers that were set out by the Supreme Court in Hyrniak.
Rule 21 – Determination of an Issue Before Trial
Rule 21 motions deal with issues of law, and not issues of fact. On such a motion, the Court may summarily dispose of an action by determining questions of law prior to trial or by striking out a pleading on the basis that is discloses no reasonable cause of action or defence. The test on such a motion is whether it is “plain and obvious” that the claim cannot succeed?
Rule 21.01(a) – Question of Law
Any party may move before a judge for the determination, before trial, of a question of law raised in a pleading. Such a motion is particularly effective where the pleadings disclose a discrete question of law that can be isolated from the contested issues of fact. Evidence is admissible on this motion only with leave of the Court or consent of the parties. The Judge may make an order or grant a judgment where the determination of the question may dispose of all or part of the action, substantially shorten the trial, or result in the saving of substantial costs.
Rule 21.01(b) – Motion to Strike
Any party may move before a judge to strike out a pleading on the ground that is discloses no reasonable cause of action or defence under Rule 21.01(b). On such a motion, the only issue is the sufficiency in law of the pleading that is being attacked and the facts alleged in the impugned pleading are assumed to be true.
Rule 24 – Dismissal for Delay
A Defendant that is not in default under the Rules or under any order of the Court may move to have an action dismissed for delay where the Plaintiff has failed to:
- Serve the Statement of Claim on all the Defendants within the prescribed time;
- Note in default any of the Defendants that failed to deliver a Statement of Defence, within 30 days after the default;
- Set the action down for trial within six months after the close of pleadings; or,
- Move for leave to restore an action to the trial list that was struck off the list, within 30 days after the action was struck off.
On such a motion, the Plaintiff can lead evidence that the dismissal of the action would be unjust.
Rule 56 – Security for Costs
The Court may direct that a party be required to post security for costs during the course of the proceeding as a term of continuing with the prosecution of a proceeding. When the Plaintiff posts the amount of money or other security ordered by the Court, the Defendant will be assured that there will be funds available to compensate the Defendant if the Plaintiff is ordered to pay the Defendant’s costs.
A Defendant may bring a motion for an order for security for costs where:
- The Plaintiff resides outside of Ontario;
- The Plaintiff has another proceeding for the same relief pending in Ontario or elsewhere;
- The Defendant has an order against the Plaintiff for costs in the same or another proceeding that remains unpaid;
- The Plaintiff is a corporation and there is reason to believe that it has insufficient assets in Ontario to pay the costs of the Defendant;
- There is good reason to believe that the action is frivolous and vexatious and the Plaintiff has insufficient assets in Ontario to pay the costs of the defendant; or,
- A statute entitles the Defendant to security for costs.
Such motion may only be brought after the Defendant has delivered a defence and must be brought on notice to the Plaintiff and any Defendant that has delivered a defence or Notice of Intent to Defend. The Court will determine the amount and form of security and the time for paying the security into court. The amount of security may also be increased or decreased at any time.
Pursuant to Rule 56.05 of the Rules of Civil Procedure, the Plaintiff against whom an order for security for costs has been made may not, until the security has been given, take any step in the proceeding except an appeal from the order, unless the court orders otherwise.
Where the Plaintiff defaults in giving the security required by an order, the Court may dismiss the proceeding against the Defendant who obtained the order, and the stay imposed by Rule 56.05 no longer applies unless another defendant has obtained an order for security for costs.
The above-referenced motions are just some of the motions that are available to civil litigants. Motions are often brought for tactical and strategic reasons. But there can be significant cost consequences if the motion is lost and/or not appropriately brought. If you have a civil litigation claim or an upcoming motion, speak to a civil litigation lawyer at Augustine Bater Binks LLP to see how they can help you