Bringing and Responding to Motions in Civil and Family Appeals

1. General

From time to time you may find it necessary to bring a motion in relation to an appeal or proposed appeal in the Court of Appeal. As it would be impossible to anticipate every situation that might arise in a guide such as this, these notes will only serve to highlight procedures that apply to bringing motions in the court.

Procedures for motions in the Court of Appeal are governed by rule 61.16 of the Rules of Civil Procedure. This rule incorporates many of the provisions found in the general rule for motions, rule 37. Additionally, other rules dealing with the format of documents, computation of time, serving of documents on the other side and so on are also dealt with in the Rules of Civil Procedure. As a result you really must review the Rules of Civil Procedure before taking any step on an appeal or motion. You may review the Rules of Civil Procedure at the following link: https://www.ontario.ca/laws/regulation/900194

Forms, where referred to in the rules, can be found at the following link: http://ontariocourtforms.on.ca/en/

Please note that the court does not provide blank forms. You will have to type or copy the forms yourself or download them from one of the sites above.

Additionally, the court has issued practice directions that outline practical matters not covered in the rules. Section 7 of the Practice Direction concerning Civil Appeals deals with motions. You may (and should) review this practice direction, which can be found at the following link: https://www.ontariocourts.ca/coa/how-to-proceed-court/practice-directions-guidelines/practice-direction-civil/.

Carefully review the applicable rules and practice directions before attempting to file or respond to a motion. They set out the “when, where, what, and how” of bringing and responding to motions. Generally speaking, the rules and practice directions set out what must be filed, what must be included in your filings, and when you must file your materials.

If you do not comply with the rules and practice directions, the staff of the court will not be able to accept your material for filing. To avoid frustration, a review of the applicable rules and careful planning are essential. For example, you should expect that it would be necessary to serve your opponent with all of the documents you wish to file on the motion. Only in exceedingly rare circumstances is a motion heard without the other side having been served with all of the materials. Similarly you should expect that it would be necessary to serve and file your materials within the timeline set out in the rules and the practice directions. While there is a provision for seeking permission of the registrar or a judge for late filing, such permission is usually granted only in emergencies or urgent situations. Keep in mind that bad planning does not necessarily create an emergency.

You should also be aware that bringing frivolous, unmeritorious, vexatious or even merely unsuccessful motions may result in an award of costs being made against you. Similarly, unsuccessfully opposing a motion may lead to a costs order against you. In fact, costs are usually awarded in favour of the party that succeeds on the motion. In some circumstances, a failure to pay such costs may prejudice your ability to argue the appeal.

2. Types of Motions

Most motions are heard by a single judge. A panel of three judges hears some motions, but only when required by statute or a rule. The procedure for motions to a single judge and motions to a panel of three judges are different, as generally described below.

2.1 Motions heard by three judges

The most common types of panel motions are:

  • A motion to quash an appeal (on the basis that the Court of Appeal does not even have jurisdiction to hear the appeal).
  • A motion to introduce new or “fresh” evidence on the appeal.
  • A motion to review a decision of a single judge who heard an earlier motion.
  • A motion seeking leave to appeal a decision of Divisional Court

The law as to if, when and how these motions can be brought is rather extensive. You should carefully research the law or seek legal advice before attempting to bring such a motion. For example, motions for leave to appeal have a specific rule (61.03.1) that provides for procedures that are somewhat different than the procedure to be followed for other motions to a panel of judges (see rule 61.16).

2.1.1 Motions for Leave to Appeal from a decision of Divisional Court

As mentioned above, these motions to a panel of three judges have a special rule setting up the procedure to follow. These motions are dealt with in writing without oral argument. As a result, specialized procedures are contained within rule 61.03.1 to ensure that the parties can make full argument in writing and to permit the court to deal with the matter properly without an oral hearing.

2.1.2 Other Motions Heard by Three Judges

The details outlining the procedure for bringing other motions to a panel of judges are set out in the rules (especially rule 61.16) and the practice direction noted above. Generally a motion brought to a panel must state that it will be heard “on a date to be fixed by the registrar”. The person bringing the motion cannot unilaterally pick the date for the hearing of the motion. The court will advise you of the hearing date after you have served and filed the necessary documents in support of your motion, (a motion record and a factum in triplicate-one for each judge). The rules provide timelines within which material must be filed. If you do not comply with these timelines, your motion may be dismissed by the registrar without a hearing.

A party responding to such a motion may also file a motion record and factum for each judge. As you might expect, the rules provide timelines for serving and filing responding materials as well.

As the hearing date approaches, the parties should consult with each other to attempt to narrow the issues. The party bringing the motion must file a “confirmation of motion” form (Form 37 B) no later than 2 p.m. two days before the hearing. If such a confirmation is not provided to the court, the motion will not be heard without permission from a judge.

2.2 Motions heard by a single judge

Most motions in the Court of Appeal are brought before one judge. The most common examples of motions brought to a single judge are:

  • A motion to extend the time in which to file an appeal, if you missed the deadline for doing so.
  • A motion to extend the time to perfect an appeal, if you missed that deadline.
  • A motion to expedite the hearing of an appeal if there is some urgency.
  • A motion to adjust the timelines for filing materials, either shortening or lengthening them, depending on circumstances of the case.
  • A motion to dispense with the filing of certain materials, the filing of which may be required by the rules but which are unnecessary for the hearing of the appeal.
  • A motion to “stay” the order under appeal, if it was not one that was automatically stayed on the filing of the appeal (see for example rule 63 of the Rules of Civil Procedure)
  • A motion to remove the “stay” if one was automatically imposed by the filing of the appeal.

As mentioned above, you should review the Practice Direction and the Rules of Civil Procedure generally and rules 61.16 and 37 in particular for the procedure for bringing motions to a judge.

If you are the party bringing the motion to a single judge, generally you must:

  • Choose a date (at 10 a.m.) for the hearing of the motion.
  • Serve your notice of motion on all parties at least seven business days before the hearing date. Note: The rules provide for minimum notice periods. You may give more notice and file your motion well in advance of the selected hearing date.
  • If you choose to file a factum containing your legal argument, you must also serve it at least four business days before the hearing.
  • File your notice of motion and motion record at least seven business days before the hearing.
  • File your factum, if any, at least seven business days before the hearing. (Since you will have served it at least seven business days before the hearing, it might be more convenient to file it when you file your notice of motion and motion record so as to avoid making additional trips to the Court of Appeal).

If you are a party responding to a motion you may file a responding motion record and respondent’s factum. If you wish to do so you must serve and file it at least four business days before the hearing.

The parties should consult with each other to attempt to narrow the issues or determine whether the responding party will consent to the order. The party bringing the motion must file a “confirmation of motion” (Form 37 B) no later than 2 p.m. three business days before the hearing. If such a confirmation is not provided to the court, the motion will not be heard without permission from a judge.

As mentioned earlier, in cases of emergency or urgency a party that is unable to comply with these timelines may seek the approval of the registrar or a judge to file the material on short notice. However, as noted above, bad planning may not be a good enough reason for obtaining permission to file late.

The notice of motion and the confirmation of motion both require an estimate for the anticipated length of the oral argument of the motion. Note, however, that if any party does not file a factum of their argument (which is not mandatory on a motion before a single judge) that party’s argument will be limited to 15 minutes. Similarly, a judge may cut short the time requested for oral argument if it appears that the party’s estimate was unreasonable.

 

Last Updated: April 2021

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