A motion can take place orally or in writing. The rules for motions vary depending on what the motion is about. The following overview refers to procedural motions.
Notice of Motion
A motion is generally initiated by a notice of motion, using Form 359. The notice of motion must set out:
(a) How the motion will take place, orally or in writing. If the motion is to take place orally, the notice of motion must indicate the time, place and estimated duration of the hearing of the motion. It is common practice for the parties to agree on how the motion will take place, including whether the motion should be made in writing.
(b) The relief sought (what the moving party is asking the Court to do).
(c) The grounds intended to be argued, including a reference to any statutory provision or rule to be relied on.
(d) A list of the documents or other material to be used at the hearing of the motion (e.g. affidavit(s), etc.).
Affidavits
The notice of motion should be accompanied by one or more affidavits. Affidavits are important because they establish the relevant facts for the motion. A motion is not like a trial and witnesses are generally not invited to testify. Instead, witnesses testify through their affidavits.
An affidavit must be written in the first person (“I”) and use Form 80A of the Federal Courts Rules. An affidavit must generally contain facts within the deponent’s personal knowledge. One exception to this rule is for affidavits written in the context of a procedural motion. These affidavits can contain statements as to the deponent’s belief, but must also include the grounds for such belief.
Even though a deponent is permitted to include statements not based on the deponent’s personal knowledge, such statements may not carry a lot of weight. It will be open to the Court to draw an adverse inference from the failure to present evidence from the person or persons having personal knowledge of the facts.
If the deponent refers to a document in the affidavit, the document should be attached to the affidavit as an exhibit. For example:
I received a letter dated December 12, 2014 from Mr. John Doe of the Canada Revenue Agency. Attached as Exhibit “A” is a true copy of that letter.
At the end of the affidavit, a copy of the letter should be marked as Exhibit “A” and endorsed by the person before whom the affidavit is sworn (the commissioner of oath or the lawyer).
Cross-Examination on Affidavits
A party has the right to cross-examine another party’s deponent(s). If that party chooses to do so, it must act with due diligence.
A party can cross-examine another party’s deponent only after it has itself served on all other parties all the affidavits on which it intends to rely for the motion. In other words, a party cannot wait to cross-examine another deponent before finalizing its affidavit(s). All the parties serve their affidavits on each other and only then do the cross-examinations start. There is one exception to this rule however. If all the parties consent or if the Court allows, a party can cross-examine another party’s deponent even though it has yet to serve its affidavit(s).
After a party has cross-examined another party’s deponent, it cannot file a new affidavit, except with the consent of all other parties or if the Court allows.
All parties must complete their cross-examination of other parties’ deponents within 20 days after the filing of the respondent’s affidavits or the expiration of the time for doing so, whichever is earlier.
Oral Cross-Examination on Affidavits
A party who wants to cross-examine another party’s deponent must serve on that deponent a “direction to attend” using Form 91 of the Federal Courts Rules (although, if the other party is represented by a lawyer, the notice to attend should be sent to the lawyer). That party can also request, in the notice to attend, that the deponent produce for inspection at the examination “all documents and other material in that person’s possession, power or control that are relevant to the matters in issue in the action.” The direction to attend must be served at least 24 hours before the hearing of the motion.
Further, when a party decides to cross-examine another party’s deponent, that party must:
- make the necessary arrangements for a court reporter to be present at the examination;
- pay the fees and disbursements related to the recording of the examination, as set out in Tariff A of the Federal Courts Rules; and
- if applicable, pay reasonable travel expenses for the deponent to attend the cross-examination.
If two parties intend to cross-examine each other’s deponents, they normally agree to retain one court reporter who will record and transcribe both examinations. To visualize, the day of the cross-examination, the court reporter will come to the meeting room at the time agreed to. The court reporter will sit at the head of the table, with each party sitting across one another on opposite sides of the table. The cross-examination will be recorded on tape, with the deponent being sworn first. The setting is relatively informal. If a party needs to take a break or needs to discuss something with the other party, that party can ask the court reporter to pause the recording and go “off-record.” If the party being questioned objects to a question, that party must state briefly the reasons for the objection. Once an objection has been lodged, the question need not be answered. The party asking the question will have to bring a motion to compel an answer. If a party believes that the other party is acting improperly, that party may adjourn the cross-examination and bring a motion for direction. From the deponent’s perspective, improper conduct refers to situations where the other party is asking an excessive number of questions or improper questions, or is conducting the examination in bad faith or in an abusive manner. From the examiner’s perspective, improper conduct refers to situations where the deponent evades answering questions or fails to produce the documents requested in the notice to attend.
Written Cross-Examination of Affidavits
As an alternative to oral cross-examination, a party can also cross-examine another party’s deponent in writing by serving on that person a list of concise and separately numbered questions using Form 99A of the Federal Courts Rules. The person to whom the questions are addressed must answer within 30 days by way of an affidavit using Form 99B of the Federal Courts Rules. If the person objects to a question, he can state his objection and the grounds for his objection, or he can bring a motion to have the question struck out. In the context of a procedural motion, it is rare to see cross-examinations in writing because of time constraints. Also, there are undeniable advantages to cross-examining someone face-to-face.
Appellant’s Motion Record
If the motion is to be heard orally, the appellant must serve and file 3 copies of its motion record at least two days before the date set for the hearing of the motion, unless:
- the parties consent to the notice of motion being served and filed less than two days before the hearing of the motion; or
- the party bringing the motion (the moving party) satisfies the Court of the urgency of the motion.
What Should the Appellant’s Motion Record Contain?
The appellant’s motion record must contain the following documents, in the same order as listed:
(a) a table of contents;
(b) the notice of motion;
(c) all affidavits and other material served by the moving party for use on the motion;
(d) except for transcripts of cross-examinations on affidavits, the portions of any transcripts on which the moving party intends to rely;
(e) subject to rule 366, written representations (written representations are required only in specific circumstances, as stated in rule 366); and
(f) any other filed material that is necessary for the hearing of the motion.
Respondent’s Motion Record
The respondent must serve and file 3 copies of its motion record no later than 2:00 pm on the last business day before the hearing of the motion.
What Should the Respondent’s Motion Record Contain?
The respondent’s motion record must contain the following documents, in the same order as listed:
(a) a table of contents;
(b) all affidavits and other material to be used by the respondent on the motion that is not included in the moving party’s motion record;
(c) except for transcripts of cross-examinations on affidavits, the portions of any transcripts on which the respondent intends to rely;
(d) subject to rule 366, written representations (written representations are required only in specific circumstances, as stated in rule 366); and
(e) any other filed material not contained in the moving party’s motion record that is necessary for the hearing of the motion.
Transcripts of Cross-Examinations
If a party cross-examined another party’s deponent, that party must file the transcript of the cross-examination before the hearing of the motion.
Motion in Writing
A party can request, in the notice of motion, to have the motion decided on the basis of written representations.
Following are the various steps for a motion in writing:
- The party bringing the motion must serve and file 3 copies of the motion record.
- The respondent to the motion has 10 days to serve and file the respondent’s record. If the respondent is opposed to the motion being disposed of in writing, it has to indicate the reasons for its opposition.
- The moving party has 4 days after being served with the respondent’s motion record to serve and file a reply.
- Once the reply has been filed or once the period for filing the reply has expired, the Court can dispose of the motion or fix a time and place for an oral hearing of the motion. Generally, if a party requests that a motion be disposed of in writing, the Court will do so unless there are good reasons to have the motion heard orally.
Last updated: November 4, 2015
