Applications and Motions Procedure

This page was last substantively updated or reviewed July 2021. (Rev. # 95278)

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Motions and Applications Generally

All motions are to be made inter partes, with notice to all the interested parties rather than ex parte, without notice to the other parties, "unless there is a compelling need, established by evidence, for an ex parte order."

Applications made by persons against the Federal Crown outside of criminal proceedings will generally be governed by the Crown Liability and Proceedings Act.

Notice

Notice of Application must set out sufficient particulars to be meaningful. A notice without particulars will not constitute notice at all.

Objections to the admissibility of evidence must be made at or before the evidence is tendered.

Sufficiency of Proof

The sufficiency of proof of notice for any application under the Code is governed by s. 4(6).

Standing

Any application or motion, be it procedural or substantive, must be made by someone with standing (locus standi).

Standing concerns "the appropriateness of the court’s dealing with the particular issue presented" by the applicant. It includes "the legal entitlement of [the applicant] to invoke the jurisdiction of the Court."

This right of standing can be obtained in one of two ways. The claimant can invoke private interest standing, also known as standing as of right, or claim public interest standing with leave of the court.

Courts have generally given private interest standing to any person who can show that "he has a particular interest or will suffer an injury peculiar to himself if he would sue to enjoin it."

In order to get a prerogative remedy, the applicant has been described as needing to be "aggrieved", "affected" or have "sufficient interest".

An aggrieved person is one who "has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something" and does not include a "mere busybody."

Whether standing is granted is in the discretion of the court. This discretion is "liberal and generous." In considering the exercise of discretion, the courts weigh three factors:

• whether the case raises a serious justiciable issue,
• whether the party bringing the action has a real stake or a genuine interest in its outcome and whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to court

An accused person will generally have standing in relation to applications directly concerning the criminal proceedings.

The principle of natural justice may provide standing. They are engaged "when a party with a discernible interest in the outcome seeks an opportunity to be heard."

Filings of Written Argument

A judge or justice may refuse to accept written arguments from a party where a due date has been ordered by the court and counsel do not comply with the due date. The right to be fully heard exists as a right for an "opportunity" to be heard, which does not include a right to extensions of time to submit argument.

The proper procedure where a deadline has been passed or will not be met would be to file a request for an extension of time and should include reasons for failing to meet the scheduled deadline.

Summary Dismissal

• Summary Dismissal Applications

Voir Dire

• Voir Dire

Charter Motions

• Charter Applications

Prerogative Writs

An application of certiorari challenging a judicial authorization such as a search warrant is a criminal and not civil proceeding.

Declaratory Judgments

A declaratory judgement is an order "confirming or denying a legal right of the applicant."

Declaratory judgements are not available where "controversy is not presently existing but merely possible or remote". The dispute should not be "contingent upon the happening of some future event which may never take place". It should not be "academic" or "speculative."

A declaratory order has only the ability to "confirm or deny a legal right" but has no ability to grant consequential relief.

Re-opening Motions or Applications

A motion, application or appeal that has not been decided on its merits can be re-opened at the discretion of the court. The applicant has a "heavy onus" to show that it is in the "interests of justice" to reopen the matter.

Factors to consider include:

1. the length of delay between the dismissal and the application for reinstatement, and the adequacy of the explanation offered for that delay;
2. whether the Appellant contributed to the delay;
3. whether the Appellant had a bona fide intention to pursue the appeal throughout the proceedings;
4. whether the initial Order was made in error, or the Court was operating under some misunderstanding of the material facts;
5. the effect reinstatement would have on public confidence in the administration of justice;
6. the seriousness of the charges
7. the merit of the appeal

Vexatious Litigants

Under the doctrine of abuse of process a judge may declare a party to be a "vexatious litigant." An order against a vexatious litigant can include an order that prohibits the party from making further applications without further leave of the Court.

A judge has inherent jurisdiction to address "vexatious litigants."

See Also

• Precedents
• Summary Dismissal Applications