Friday, November 30, 2012

In which I ask for Exclusion of Parties

I told you last time how I filed a Notice of Motion asking for the exclusion of co-defendants from attending each others' Examinations for Discovery. Today I'm going to tell you a little bit about my motion. I already said it's a little mixed up because I didn't exactly know the difference between a Motion, and Affidavit, and a Brief. So some of the things that were supposed to go in one, I ended up putting in another. But I think I've got them all in there one way way or another.

You can see that I begin each section of my Motion with a phrase in capital letters. This comes straight from the Court of Queen's bench templates, specifically Form 37a. The only problem is they don't tell you exactly what everything means. I think I'm OK when I say "THE MOTION IS FOR the exclusion of co-defendants....". But then they ask me the grounds for the motion. I list three grounds here, attempting to be as succinct as possible. I actually reviewed the case law to find what judges in other jurisdictions were looking for when they granted this kind of motion, and I tried to include as much of that as possible without getting into "arguments".

I was also supposed to included any "statutory provision" which I intended to rely on, and I had a bit of a problem here. I pored through the Queen's Bench rules, and couldn't find anything relating specifically to this situation. It seems that what lawyers do in this situation is they just cite the Queen's Bench Rules "in general", so that's probably what I ought to have done. But in fact, I am relying on the case law, not on the QB rules. Which brings us to the next item. "THE FOLLOWING DOCUMENTARY EVIDENCE will be used....".

This is where I list the cases I found. Of course that's messed up: a case isn't "documentary evidence". In fact, I'm supposed to list the cases I rely on, but I'm supposed to do that in my Brief. So they're out of place here. What I was supposed to put here is that I intend to file an AFFIDAVIT which will list the evidence I plan to bring. At least, I think that's what goes here. In fact, as we'll see, I do list several pieces of evidence in my Affidavit, and I'm quite sure I'm not supposed to list them twice...once in my Notice, and again in my Affidavit. So I think all I was expected to put here was to list my affidavit, which I ought to have then filed simultaneously with the Notice of Motion.

The other thing I included in my "list of evidence" was an undertaking to file a Brief in support of the motion. Again, I think this was unnecessary. If you file a brief, you file a don't have to tell them in advance. In any case, it's all done. And as of yesterday, I've also filed my Affidavit and my Brief. So as far as I'm concerned, my filings are all complete. When we return, we can talk about my Affidavit, which you can look at here.

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