During a proceeding, sometimes issues may arise that cannot be resolved by negotiation or by consent and must be resolved by an interlocutory application.
Usually your lawyer will begin by telling you what orders she/he would like the court to make. There are many considerations to think about before preparing your documents such as the timing and form of your application, applicable Rules and Court authority, relevant and attainable relief, venue, supporting persuasive evidence and service. No matter what your role is in getting the file ready for a chambers application, you need to consider one or all of these considerations so that the matter can be before the court in an expeditious and cost efficient manner.
First, you must decide if a Notice of Motion or a Petition will bring the application to the Court. Either document notifies the court and other parties of the relief being sought. If you already have an existing action, you will prepare a Notice of Motion in Form 55. Rule 10(1) sets out the types of matters that can be started by a Petition, but generally if you are seeking a final order with undisputed facts, you could consider the use of a Petition in Form 3.
Once the appropriate relief is determined by discussing this with the lawyer or reviewing the file, is to be listed in numbered paragraphs in the body of your motion. The relief should be listed in order of importance or urgency with substantive issues first, followed by procedural ones.
Take the time to draft your motion correctly, as you can later use the same clauses in your draft order. You can ask for as many claims of relief as you want, but the court will not grant relief that is not included in your materials. If the terms of relief in the motion are particularly long or complex, you can attach a draft order to your motion specifying that the relief sought is “in the form attached”.
It is important to consider whether the court has authority under BC Laws to grant the relief. For example, the court has no authority under the Federal Income Tax Act to order the CCRA to produce a party’s income tax return. Careful consideration must be used when corporate entities are named, as you must ascertain their proper legal name. The court can generally only make an order against a “person” within British Columbia.
Spend some time reading the Rules of Court under which you are bringing the application. The relevant Rules/enactments must be specified in the motion because if they are not, the court will not have the authority to grant the additional relief. If you cannot find a specific rule or enactment that applies to your terms, you must rely on the inherent jurisdiction of the court.
You also must consider whether a judge or a master can hear the application. This is also set out in the preamble of your motion.
You need to determine if your application can be brought without notice or if notice is required and, if so, to which parties. Sometimes short leave is required in urgent applications that require little or no notice to other parties. If notice is required, you need to think about which parties of record, counsel and non-parties must be served. You must serve any party who may be affected by the relief sought. All parties who require service must be listed on the front page of the motion. If a party is not served with the application, you run a risk of having the hearing dismissed or adjourned by the court.
You can file your motion in any registry within the same judicial district without the consent of the respondents. The Vancouver/Westminster Supreme Court Judicial District includes the registries located in Vancouver, New Westminster, Powell River and Chilliwack, so you can consider which registry will be most convenient for all parties.
You must also list the evidence that will be considered at the hearing in the motion. The application must be supported by at least one affidavit. Consider who would be the best person to swear an affidavit to support the relief. You must list the affidavits and any other material (such as pleadings) in numbered paragraphs in the motion. An affidavit previously made and filed in the proceeding may be used in support of a new notice of motion (Rule 44(4)). It is a good idea to list them, together with the new affidavits, in your motion (Rule 44(5)).
Consider a realistic time estimate for the court to hear your case and the case of anyone else who intends to reply. Include some extra time for the judge or master to ask any questions and give a ruling. If your time estimate is over 30 minutes, you will need to prepare additional documents and consider extra deadlines and you must first obtain a hearing date directly from the court.
Finally, you must consider the timing of your application. If there is a specific date you need to have the order granted by, you need to calculate in advance the date your application materials should be served on the parties and also allow for the appropriate time for the respondents to deliver their reply.
Once you consider the above issues, you will be able to prepare a motion with ease.