In simple terms, when a party wants the Court to intervene in the proceeding, or when the rules so dictate, the party must “apply” to the Court. A party applies to the Court by bringing a motion, which is done by filing and serving a “notice of motion” (Form 65). A motion can be made orally or in writing.
Notice of Motion
The notice of motion must indicate how the motion will take place. If the motion is to be heard orally, the notice of motion must indicate the date and place for the hearing of the motion.
Evidence on Motions
A notice of motion is generally accompanied by one or more affidavits. The affidavit provides the factual background for the motion. Unlike trials, witnesses generally do not testify in a motion, except with leave of the Court. Instead, what a witness needs to say is said through his affidavit.
How to Write an Affidavit
The affidavit must be in Form 19 and be limited to statements of fact that are within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except where the rules provide otherwise. In the context of a motion, the Tax Court of Canada Rules (General Procedure) specifically provide that the affidavit may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.
When a deponent refers to a document in his affidavit, the document should be attached as an exhibit.
E.g. “I received a letter from John Doe dated June 3, 2014 informing me about the sale of the shares of XYZ Incorporated. Attached as Exhibit “A” is a true copy of that letter.”
Cross-Examination on Affidavit
A deponent whose affidavit has been filed may be cross-examined on it by the opposing party and the evidence adduced during cross-examination may be used during the hearing of the motion.
Evidence from Examination for Discovery
A party may use the evidence that it obtained during the examination for discovery of the other party in the motion.
If the motion is to be heard orally, the notice of motion, together with the affidavits or other documentary materials to be used at the hearing of the motion, must be filed and served at least 7 days before the date on which the motion is to be heard.
The day of the motion, the party who brought the motion (the “applicant”) will address the Court first, followed by the other party.
If the applicant chooses to have the motion proceed in writing, a copy of the request to have the motion proceed in writing and the written representations must be served with the notice of motion. The party served with the notice of motion will have 20 days to file and serve written representations in opposition to the motion or, alternatively, file and serve a written request for a hearing.
After the party that was served with the notice of motion has responded, or the time for doing so has elapsed, the Court may:
(a) grant judgment without a hearing (relying on the written representations of the parties);
(b) direct a hearing; or
(c) direct that written representations be filed.
NEXT – PREPARING FOR THE HEARING
Last updated: October 4, 2018