The purpose of this article is to familiarize personal injury plaintiffs with a basic understanding of the types of legal “Motions” that are commonly associated with personal injury claims.
Basically, a “Motion” is an application or court procedure that is used by lawyers to request and ultimately obtain a desired “court order” made by a judge or master of the court. In Ontario, Masters are appointed court officials. In civil matters, such as personal injury lawsuits – “Masters” have the authority to hear and ultimately decide on the success or failure of a “Motion” and who pays the costs associated with them. In Toronto, Motions heard by a Master, are usually heard within two to three weeks; while Motions to be heard by a judge can take anywhere from two to four months.
The person or party that initiates the “Motion”, is known as the “Moving party”. The person to whom the Motion is directed, or served is known as the “Responding party”.
When filing a motion, the moving party must first develop the “Motion Record” comprising of the notice of motion, and a sworn affidavit relating to the evidence included. Copies of the record are made with the original “motion record” filed with the court.
Notice Of Motion
The notice of motion form 37A identifies the “moving party” the time, and date the motion will be heard by the court as well as the location of the hearing. The “Notice of Motion” will also define the method in which the motion will be heard (Orally, in writing – on consent, opposed, unopposed or made without notice.) The notice of motion will also state the relief or order sought after, the grounds to be argued and the moving parties documentary evidence in support of the motion. The responding party is required to produce its “responding motion record” within at least 4 days before the motion will be heard in court.
Note: In Toronto, motions are usually heard at the court house located at 393 University Ave. In Barrie, short Motions are usually heard on Tuesday mornings at 9:30am at the court house located at 75 Mulcaster street.
- Opposing a Motion
An opposed motion is one where the relief sought is formally disputed by the responding party. In order to oppose a motion, an oral argument court is usually required by the opposing party or his/her lawyer.
- Motions With Consent
With consent motions, the responding party willingly agrees with the request or relief sought after by the moving party. Attendance in court is not usually required.
- Unopposed Motions
Are those motions that are neither given consent or opposition by the responding party. As is with consent motions, the responding parties attendance in court is not usually required when the motion is unopposed.
- An Award Of Costs
With personal injury claims the term “costs” often refers to court fees, courier costs, photocopying and legal/lawyer fees.
Rules of Civil Procedure
The Superior Court of Justice hears all civil proceedings in Ontario, this includes personal injury lawsuits. Personal injury proceedings in Ontario are generally governed by Rules Of Civil Procedure. The relevant laws governing “Motions” in Ontario can be found under Rule 37 in the Courts of Justice Act.
Possible Personal Injury Related Motions
When preparing for trial, it is quite common for plaintiff and defense lawyers involved in the personal injury dispute to produce “Motions” requesting the production of documents not only from the plaintiff but also from third parties who have policies in place intended to protect a person or patients privacy. Other motions may include:
- Rule 33.01 Motion For Medical Examination – Used to seek an order when the physical or mental condition of a party is in question. Personal injury claims most often relate to the mental or physical condition of a claimant. The insurance companies and their lawyers defending the claim are given the right to have a medical practitioner of their choice examine the plaintiff. Read more on defense medical examinations.
- Rule 30.10 Production from Non-Parties With Leave. Move for the court ordered production of documents, such as medical records, counseling records, mental health records, pharmacy records, chiropractic/physiotherapy records, employment records, and any other information that feel is relevant to defending the injury claim.When privilege is asserted by the responding party or if the documents relevance to the action is in question by the courts – the court can inspect the document and make a determination.Generally speaking, non-parties seen to be somehow “allied” with the party opposing the production of documents are more likely to receive a “Production Order” than a true non biased “stranger” to the civil action. (This is not to say that a “Motion Order’ won’t still be ordered against the unconnected party.) How well the Motion has been prepared, and how well the grounds for the Motion have been established – play the most significant role in its success or failure.
Notice of the Motion must be given not only to the responding “non-party” but also to the opposing party. In most cases, the moving party is responsible for any costs that are incurred by the non-party to copy or produce the requested documents.
- Motions may also be put forth to request time extensions, amend pleadings or additions related to a statement of claim or statement of defense.
- Motions can also be used to request that an action against them be dismissed by the courts; or to pursue an injunction ordering preventing or stopping the opposing party from acting in a certain way.
- Motions may also arise in the appeal process to: to overthrow an appeal, submit new evidence on an appeal, review a decision of a previous judge relating to an earlier Motion; or to appeal a decision of the Divisional Court.(Procedures for motions in the Court of Appeal are governed by rule 61.16 of the Rules of Civil Procedure)