Wednesday, November 28, 2012

In which I file a Motion

When we left off, I told you I had just filed a Notice of Motion to have the opposing parties excluding from attending the discoveries of their co-defendants. You can check out my Motion online and see how I've done it, but I have to caution you, if you're thinking of doing something similar yourself, that I'm not sure I've done it quite right.

I put a lot of effort into my initial Statement of Claim, and learned everything I could about what does and doesn't go into one. I can't say my Statement of Claim is perfect, but I can at least take some comfort in the fact that my opponents did not attempt to have it thrown out of court prior to going to trial, as is the fate of many claims, and not just those filed by self-represented litigants.

On the Notice of Motion, I'm actually on shakier ground. I'm learning the process as I go along, and I've had a couple of little bumps. I started off by using the template Form 37A found on the Queen's Bench website. Right at the start it tells you to state the time and place where the motion is to be heard. Not knowing any better, I put down an arbitrary date of Monday the 17th of December. I wanted to allow enough time to give notice to the other side so they could prepare their arguments, and four weeks seeemed about right. And I put down an arbitrary time of 10:00 am, because the form asks you to fill in a time. By coincidence, this happens to be the time when motions are actually heard before a judge. Perfect, right?

Not exactly. It seems I don't want to be heard by a judge, but by a "Master". I don't know what the difference is, but that's what I was supposed to ask for. And the Masters hear motions at 9:30 on Monday mornings.  Also, although I have little doubt my motion will be opposed by the other side, it seems that all motions automatically go on the "uncontested" list. If the other side shows up to contest it, the motion is automatically re-scheduled for a future date. So there was no need for me to wait four weeks before going before the Master.

After learning all this, I went back to court the next day with an Amended Notice of Motion. So I was pretty dismayed to find out that once you file a motion, you can't amend it. Actually, the clerks at the Law Courts building had a bit of a time figuring out what I needed to do. At first it looked like I would have to abandon my original motion and file a brand new one, which would cost me another $100 for the filing fee.  But then they figured out that I could just adjourn the motion, and then I  re-open it before a Master, on whatever date I wanted. They even gave me my new appointment right then and there, for 9:30 am on Monday the 10th. But they couldn't let me adjourn the original date so easily...I had to get written consent from the other parties. Not a big deal, but it means a little more running around. No harm done, and I saved $100.

Having filed the motion, I'm not done yet. With a Statement of Claim, you put everything into one document, and that's it. A motion is somehow different...there are really three documents that need to be filed. First there's your Notice of Motion. Then you need an Affidavit of Facts. And finally you submit a Brief with your supporting arguments. (And if your Brief cites previous cases, your supposed to include a separate Book with copies of the judgements from those cases.)

You can see in my Notice of Motion that I undertake to file my Brief within ten days. What about my Affidavit? I think that was actually supposed to go in together with my Notice, but no matter; I'll include one when I do my Brief. What is confusing to me is to figure out exactly what goes in the Notice, what goes in the Affidavit, and what goes in the Brief?

As near as I can tell, the combination of the Notice of Motion and the Affidavit of Facts is more or less the equivalent of the Statement of Claim. You are notifying the other party of exactly what you are asking for, and including facts which, assuming they are true, would supposedly justify the granting of the motion. The Brief is different. In the brief you are arguing your case. That's something you don't do when you make a Statement of Claim. In that case, you don't make your arguments until you go to court. But in a Motion, they want you to put down your arguments ahead of time.

I've prepared my Affidavit and my Brief, and I think they're pretty good. I'll post them online for you in the next couple of days. I'm not sure that I've put everything where it facts and arguments may be spilling over from one document to another here and there, but I think the courts will give me some slack on that. The main thing is that if I take all three filings together...the Notice, the Affidavit, and the Brief...that I think I've covered all my bases. We'll see how that works out.

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