Motions

Question 1

What is a motion?

Answer 1

A proceeding within a proceeding, a step taken to determine various issues that may arise between the parties

Question 2

A person who makes a motion is called the

Answer 2

“moving party”

Question 3

A person against whom a motion is made is called

Answer 3

the “responding party”

Question 4

A motion shall be made by

Answer 4

a notice of motion and supporting affidavit (Form 15A)

Question 5

Upon paying the fee to the Minister of Finance, the moving party shall obtain

Answer 5

• a hearing date from the clerk of the court
• then serve, at least 7 days before the motion’s hearing date, the notice of motion and accompanying supporting affidavit on every party who has filed a claim and any defendant who has not been noted in default

Question 6

What is the suggested format of a notice of motion?

Answer 6

• first para to set out relief being sought by moving party
• second para to set out the applicable rules, relevant statutes and any relevant common law case citations, if needed
• the third and subsequent para should set out the factual basis to support the motion

Question 7

The contents of an affidavit are

Answer 7

evidence

Question 8

What must be prepared in response to a motion?

Answer 8

A responding affidavit (Form 15B)

Question 9

When must a responding affidavit be filed w proof of service?

Answer 9

At least two days before the date of the motion

Question 10

When a court issues an order without notice, the party who obtained the order must

Answer 10

• within five days after the order is signed, serve the order, notice of motion, supporting affidavits and any other material filed on every affected party
• affected parties must then bring their motion within 30 days after being served with the order

Question 11

If a party seeks to adjourn the motion before the hearing date, then the party must obtain

Answer 11

the consent of all parties who have been served with the notice of motion and file the consents (Form 13 B) with the court

Question 12

When a party makes a motion to strike a claim due to insufficient action or defence, the court must be satisfied that

Answer 12

the claim discloses no discernible cause of action, even if the claim is read generously or the defence lacks any merit

Question 13

The test for discerning whether a claim discloses a reasonable cause of action is whether

Answer 13

the claim has a meaningful chance of success at trial.

Question 14

To support/refute a motion to strike, both parties should prepare:

Answer 14

• a factum
• book of authorities

Question 15

The court has inherent power to stay or dismiss an action. If it chooses to do so, theclerk will

Answer 15

• send a notice by mail to the plaintiff that the court is considering making such an order
  -permit the plaintiff to file written submission of no more than 4 pages within 20 days of receipt of the notice.

Question 16

The general rule of costs is that the court will not reward more than

Answer 16

$100, exclusive of disbursements, unless the court order otherwise because there are special circumstances that justify a higher amount

Question 17

If all parties provide consent and the procedure under Rule 11.2.01 is adopted, the following matters may be dealt with by a clerk’s order:

Answer 17

• amending the claim/defence less than 30 days before the originall scheduled trial date
• adding/deleting/subbing a party less than 30 days before the originally scheduled trial date
• setting aside the noting in default or default judgement against a party and any specified step to enforce the judgement that has not yet been completed
• restoring to the list a matter that was dismissed by the clerk under Rule 11.1
• noting that payment has been made in full satisfaction of a judgement or terms of settlement
• dismissing an action

Question 18

What form is filed for a request for clerk’s order on consent?

Answer 18

Form 11.2A