12 Ways to Win your Motion
Kayla Carr Apr 17, 2023
Are you considering bringing a Motion? Do you have a Pre-Trial coming up?
Do you know what it takes to be successful?
Justice Edwards, the Regional Senior Justice of the Central East Region, in Lepp v The Regional Municipality of York, 2022 ONSC 6978, has recently outlined 12 ways to win your Motion or to have a productive Pre-Trial. Here’s a breakdown of the recommendations:
1. Statistics show that over 95% of cases will settle without a trial. So, before you even serve your motion materials, you should ask two fundamental questions:
- is the time and expense of the motion really worth the effort?
- how much impact, if any, will the contemplated motion improve the chances that case will resolve in a manner favourable to your client?
2. Assuming you have decided that the motion is necessary, kick it old school and pick up the phone to talk to your opponent. Telephone calls and in-person discussions might eliminate the need for the motion, or narrow the issues.
3. Remember the golden rule: “Less is more.” Judges are greatly impressed with motion materials that contain only the documents that are fundamental to the determination of the motion. The judiciary simply cannot read 1,300 pages for a motion that is scheduled to be argued in under an hour.
4. Comply with Rule 4.05(3) and hyperlink it. File a compendium that only contains the critical documents you’ll refer to and snippets of case law you intend to rely upon in your oral argument. Don’t forget to hyperlink to the document in the record and the case citation so the reader doesn’t become frustrated trying to find them.
5. If your motion is important enough to the outcome of your case, file a factum, even when the Rules of Civil Procedure don’t require one.
6. The easier you make the job of the decision maker, the greater the likelihood of a positive decision for your client. So, when you file a factum, consider the following:
- A simple argument might very well be the winning argument;
- Don’t throw everything at the wall to see what sticks. Make sure the issues you are asking for are clear from the beginning and narrow the issues down to one or two real issues that need to be decided;
- Refer the reader to the leading appellate authority that addresses the issue(s) on the motion; and,
- If there are critical parts of a document (such as the language in a contract or Will), consider placing an extract from the document right in the factum.
7. Just because the Court stipulates a page limit doesn’t mean you actually need to file that many pages. Less is more!
8. A Motion Judge does not want to scroll through hundreds of pages to find a document. Where there are other important documents, such as exhibits from cross-examinations, they should be readily accessible to the reader. This can be done using separate electronic tabs, hyperlinks, or bookmarks.
9. Before the hearing, check Caselines to ensure the documents you will be referring to have been properly uploaded to the right bundle and are easily accessible.
10. Once you have served your motion materials and reviewed the materials from your opponent, pick up the phone again. Can the motion be resolved? Can the issues be narrowed? Is the motion ready to be heard or will there be a late breaking request to adjourn it?
11. Be prepared to argue costs at the hearing, or at the very least exchange Costs Outlines. Better still, consider speaking with your opponent ahead of the hearing to agree on the amount for costs to the successful party. The presiding Judge will likely have positive memories of counsel who can agree upon costs rather than having to write a costs endorsement.
12. Upload a draft Order in Word format to Caselines ahead of the hearing. Simply put, Justice Edwards emphasizes the importance of reflecting on why you are filing materials that are hundreds or thousands of pages long. Remember that, apart from the requirements imposed by the Notice to the Profession and Rules of Civil Procedure, judges are human. They simply do not have the time to read the volume of material they are often confronted with.
In the Central South Region, the Court has adopted the “less is more” approach in its most recent Notice to the Profession effective February 13, 2023. The following rules apply:
1. For Civil Short Motions (1 hour or less):
- each party is restricted to one primary affidavit in support of their position on the motion, which shall not exceed 12 pages.
- Third party and reply affidavits, where required, shall not exceed 5 pages each.
- Exhibits to each party’s affidavit shall be limited to only the necessary and relevant evidence.
2. For Civil Long Motions and Applications:
- Factums are required and are limited to 20 pages, at least 12-point font and double spaced
3. For Civil Pre-Trials:
- Pre-Trial briefs shall contain no more than 20 pages, double spaced. Medical reports, contracts, expert reports and other documents are not to be attached. Relevant excerpts from such documents should be included in the typed Pre-Trial brief.
The biggest take away: Less is more! The less you file and the more you can resolve, the better for your client and judicial resources.
Kayla Carr is a lawyer in Ross & McBride's Litigation Group. With broad experience in all matters of civil litigation, Kayla’s current practice focuses on estate litigation and real property disputes. She’s a skilled litigator who has conducted trials, arbitrations, and mediations, and has appeared before the Ontario Superior Court of Justice, the Divisional Court, and the Ontario Court of Appeal. She is known as an analytical and adaptable lawyer who continuously evaluates the strengths and weaknesses of each case. She always takes the time to understand her clients’ needs and goals, and provides them with honest, to-the-point advice. Read more about Kayla.