Motion Proceedings: Step by Step

How do motion proceedings take place?

1. One of the most important decisions a litigation attorney must make is whether his/her client’s case must be moved by motion proceedings or by action proceedings.
2. Motion proceedings are instituted by the issuing of a notice of motion and the applicant’s case or cause of action is set out in an affidavit. The application is thereafter served on the respondent by the sheriff of the court.
3. The Respondent is granted a certain number of days to file his notice to oppose. By the filing of a notice to oppose, the respondent indicates that he intends to oppose the motion.
4. Should a respondent fail to file his/her notice to oppose the application will be considered an unopposed motion and proceed in the absence of the respondent. The Court will adjudicate the application and subsequently grant an order.

What happens if the respondent files a Notice To Oppose?

1. If the Respondent filed a notice to oppose, he/she will be required to file an opposing affidavit, in which, the respondent will set forth his/her defense to the case presented to the court by the applicant. The application will now be referred to as an opposed motion.
2. After filing the respondent’s opposing affidavit the court will allocate a date for the hearing of the opposed motion and the matter will be argued.
3. Motions are adjudicated on the papers before the court and the calling of witnesses or the presentation of evidence, that is is not contained the papers, will not be allowed although certain exceptions do exist. The court will consider the case on the papers and grant an order.
4. As the parties will not be allowed to call witnesses, any factual dispute between the parties may lead to the court either dismissing the application alternatively referring it to trial.
5. In exceptional circumstances, an application may be brought before the court on an urgent basis although this procedure is considered as risky by most litigation attorneys as most of these urgent applications are dismissed for want of urgency.

Certain causes of action, for instance, opposed divorces, may not be brought before the court employing motion proceedings.