jswizzle3737/ontario_laws_and_regs huggingface dataset:
Objections and Rulings
 34.12 (1) Where a question is objected to, the objector shall state briefly the reason for the objection, and the question and the brief statement shall be recorded.  R.R.O. 1990, Reg. 194, r. 34.12 (1). (2) A question that is objected to may be answered with the objector’s consent, and where the question is answered, a ruling shall be obtained from the court before the evidence is used at a hearing.  R.R.O. 1990, Reg. 194, r. 34.12 (2). (3) A ruling on the propriety of a question that is objected to and not answered may be obtained on motion to the court.  R.R.O. 1990, Reg. 194, r. 34.12 (3). 34.13 Revoked:  O. Reg. 171/98, s. 10. Improper Conduct of Examination Adjournment to Seek Directions 34.14 (1) An examination may be adjourned by the person being examined or by a party present or represented at the examination, for the purpose of moving for directions with respect to the continuation of the examination or for an order terminating the examination or limiting its scope, where, (a) the right to examine is being abused by an excess of improper questions or interfered with by an excess of improper interruptions or objections; (b) the examination is being conducted in bad faith, or in an unreasonable manner so as to annoy, embarrass or oppress the person being examined; (c) many of the answers to the questions are evasive, unresponsive or unduly lengthy; or (d) there has been a neglect or improper refusal to produce a relevant document on the examination.  R.R.O. 1990, Reg. 194, r. 34.14 (1). Sanctions for Improper Conduct or Adjournment (2) Where the court finds that, (a) a person’s improper conduct necessitated a motion under subrule (1); or (b) a person improperly adjourned an examination under subrule (1), the court may order the person to pay personally and forthwith the costs of the motion, any costs thrown away and the costs of any continuation of the examination and the court may fix the costs and make such other order as is just.  R.R.O. 1990, Reg. 194, r. 34.14 (2).
Improper Conduct of Examination
 34.14 (1) An examination may be adjourned by the person being examined or by a party present or represented at the examination, for the purpose of moving for directions with respect to the continuation of the examination or for an order terminating the examination or limiting its scope, where, (a) the right to examine is being abused by an excess of improper questions or interfered with by an excess of improper interruptions or objections; (b) the examination is being conducted in bad faith, or in an unreasonable manner so as to annoy, embarrass or oppress the person being examined; (c) many of the answers to the questions are evasive, unresponsive or unduly lengthy; or (d) there has been a neglect or improper refusal to produce a relevant document on the examination.  R.R.O. 1990, Reg. 194, r. 34.14 (1). Sanctions for Improper Conduct or Adjournment (2) Where the court finds that, (a) a person’s improper conduct necessitated a motion under subrule (1); or (b) a person improperly adjourned an examination under subrule (1), the court may order the person to pay personally and forthwith the costs of the motion, any costs thrown away and the costs of any continuation of the examination and the court may fix the costs and make such other order as is just.  R.R.O. 1990, Reg. 194, r. 34.14 (2).
Sanctions for Default or Misconduct by Person to be Examined
 34.15 (1) Where a person fails to attend at the time and place fixed for an examination in the notice of examination or summons to witness or at the time and place agreed on by the parties, or refuses to take an oath or make an affirmation, to answer any proper question, to produce a document or thing that he or she is required to produce or to comply with an order under rule 34.14, the court may, (a) where an objection to a question is held to be improper, order or permit the person being examined to reattend at his or her own expense and answer the question, in which case the person shall also answer any proper questions arising from the answer; (b) where the person is a party or, on an examination for discovery, a person examined on behalf or in place of a party, dismiss the party’s proceeding or strike out the party’s defence; (c) strike out all or part of the person’s evidence, including any affidavit made by the person; and (d) make such other order as is just.  R.R.O. 1990, Reg. 194, r. 34.15 (1). (2) Where a person does not comply with an order under rule 34.14 or subrule (1), a judge may make a contempt order against the person.  R.R.O. 1990, Reg. 194, r. 34.15 (2).
Examination to be Recorded
 34.16 Every examination shall be recorded in its entirety in question and answer form in a manner that permits the preparation of a typed transcript of the examination, unless the court orders or the parties agree otherwise.  R.R.O. 1990, Reg. 194, r. 34.16; O. Reg. 689/20, s. 20.
Typed Transcript
 34.17 (1) The official examiner or person who recorded an examination shall, on the request of a party, have a typed transcript of the examination prepared and completed within four weeks after receipt of the request. O. Reg. 689/20, s. 21. Certification (2) The transcript shall be certified as correct by the person who recorded the examination, but need not be read to or signed by the person examined. O. Reg. 689/20, s. 21. Copy to be Provided (3) As soon as the transcript is prepared, the official examiner or person who recorded the examination shall send a copy of the transcript to the party who requested it. O. Reg. 689/20, s. 21. Filing of Transcript Party to Have Transcript Available 34.18 (1) It is the responsibility of a party who intends to refer to evidence given on an examination to have a copy of the transcript of the examination available for filing with the court.  R.R.O. 1990, Reg. 194, r. 34.18 (1). Filing for Use on Motion or Application (2) Where a party intends to refer to a transcript on the hearing of a motion or application, a copy of the transcript for the use of the court shall be filed in the court office where the motion or application is to be heard, at least four days before the hearing.  R.R.O. 1990, Reg. 194, r. 34.18 (2); O. Reg. 171/98, s. 11; O. Reg. 394/09, s. 14. (3) The party may file a copy of a portion of the transcript if the other parties consent.  R.R.O. 1990, Reg. 194, r. 34.18 (3). Filing for Use at Trial (4) A copy of a transcript for the use of the court at trial shall not be filed until a party refers to it at trial, and the trial judge may read only the portions to which a party refers.  R.R.O. 1990, Reg. 194, r. 34.18 (4).
Filing of Transcript
 34.18 (1) It is the responsibility of a party who intends to refer to evidence given on an examination to have a copy of the transcript of the examination available for filing with the court.  R.R.O. 1990, Reg. 194, r. 34.18 (1). Filing for Use on Motion or Application (2) Where a party intends to refer to a transcript on the hearing of a motion or application, a copy of the transcript for the use of the court shall be filed in the court office where the motion or application is to be heard, at least four days before the hearing.  R.R.O. 1990, Reg. 194, r. 34.18 (2); O. Reg. 171/98, s. 11; O. Reg. 394/09, s. 14. (3) The party may file a copy of a portion of the transcript if the other parties consent.  R.R.O. 1990, Reg. 194, r. 34.18 (3). Filing for Use at Trial (4) A copy of a transcript for the use of the court at trial shall not be filed until a party refers to it at trial, and the trial judge may read only the portions to which a party refers.  R.R.O. 1990, Reg. 194, r. 34.18 (4).
Videotaping or other Recording of Examination
 34.19 (1) On consent of the parties or by order of the court, an examination may be recorded by videotape or other similar means and the tape or other recording may be filed for the use of the court along with the transcript.  R.R.O. 1990, Reg. 194, r. 34.19 (1). (2) Rule 34.18 applies, with necessary modifications, to a tape or other recording made under subrule (1).  R.R.O. 1990, Reg. 194, r. 34.19 (2). RULE 35  PROCEDURE ON EXAMINATION FOR DISCOVERY BY WRITTEN QUESTIONS
RULE 35 PROCEDURE ON EXAMINATION FOR DISCOVERY BY WRITTEN QUESTIONS
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Questions
 35.01 An examination for discovery by written questions and answers shall be conducted by serving a list of the questions to be answered (Form 35A) on the person to be examined and every other party.  R.R.O. 1990, Reg. 194, r. 35.01.
Answers
 35.02 (1) Written questions shall be answered by the affidavit (Form 35B) of the person being examined, served on the examining party within fifteen days after service of the list of questions.  R.R.O. 1990, Reg. 194, r. 35.02 (1). (2) The examining party shall serve the answers on every other party forthwith.  R.R.O. 1990, Reg. 194, r. 35.02 (2).
Objections
 35.03 An objection to answering a written question shall be made in the affidavit of the person being examined, with a brief statement of the reason for the objection.  R.R.O. 1990, Reg. 194, r. 35.03. Failure to Answer Further List of Questions 35.04 (1) Where the examining party is not satisfied with an answer or where an answer suggests a new line of questioning, the examining party may, within ten days after receiving the answer, serve a further list of written questions which shall be answered within fifteen days after service.  R.R.O. 1990, Reg. 194, r. 35.04 (1). Court Order for Further Answers (2) Where the person being examined refuses or fails to answer a proper question or where the answer to a question is insufficient, the court may order the person to answer or give a further answer to the question or to answer any other question either by affidavit or on oral examination.  R.R.O. 1990, Reg. 194, r. 35.04 (2). Court Order for Oral Examination (3) Where the court is satisfied, on reading all the answers to the written questions, that some or all of them are evasive, unresponsive or otherwise unsatisfactory, the court may order the person examined to submit to oral examination on such terms respecting costs and other matters as are just.  R.R.O. 1990, Reg. 194, r. 35.04 (3). Additional Sanctions (4) Where a person refuses or fails to answer a proper question on a written examination or to produce a document that he or she is required to produce, the court may, in addition to imposing the sanctions provided in subrules (2) and (3), (a) if the person is a party or a person examined on behalf or in place of a party, dismiss the party’s action or strike out the party’s defence; (b) strike out all or part of the person’s evidence; and (c) make such other order as is just.  R.R.O. 1990, Reg. 194, r. 35.04 (4).
Failure to Answer
 35.04 (1) Where the examining party is not satisfied with an answer or where an answer suggests a new line of questioning, the examining party may, within ten days after receiving the answer, serve a further list of written questions which shall be answered within fifteen days after service.  R.R.O. 1990, Reg. 194, r. 35.04 (1). Court Order for Further Answers (2) Where the person being examined refuses or fails to answer a proper question or where the answer to a question is insufficient, the court may order the person to answer or give a further answer to the question or to answer any other question either by affidavit or on oral examination.  R.R.O. 1990, Reg. 194, r. 35.04 (2). Court Order for Oral Examination (3) Where the court is satisfied, on reading all the answers to the written questions, that some or all of them are evasive, unresponsive or otherwise unsatisfactory, the court may order the person examined to submit to oral examination on such terms respecting costs and other matters as are just.  R.R.O. 1990, Reg. 194, r. 35.04 (3). Additional Sanctions (4) Where a person refuses or fails to answer a proper question on a written examination or to produce a document that he or she is required to produce, the court may, in addition to imposing the sanctions provided in subrules (2) and (3), (a) if the person is a party or a person examined on behalf or in place of a party, dismiss the party’s action or strike out the party’s defence; (b) strike out all or part of the person’s evidence; and (c) make such other order as is just.  R.R.O. 1990, Reg. 194, r. 35.04 (4).
Improper Conduct of Examination
 35.05 On motion by the person being examined, or by any party, the court may terminate the written examination or limit its scope where, (a) the right to examine is being abused by an excess of improper questions; or (b) the examination is being conducted in bad faith, or in an unreasonable manner so as to annoy, embarrass or oppress the person being examined.  R.R.O. 1990, Reg. 194, r. 35.05.
Filing Questions and Answers
 35.06 Rule 34.18 applies, with necessary modifications, to the filing of written questions and answers for the use of the court.  R.R.O. 1990, Reg. 194, r. 35.06. RULE 36  TAKING EVIDENCE BEFORE TRIAL Where Available Definition 36.01 (1) In this rule, “party” includes a party to a pending or intended proceeding.  O. Reg. 8/07, s. 1. By Consent or by Order (2) A party who intends to introduce the evidence of a person at trial may, with leave of the court or the consent of the parties, examine the person on oath or affirmation before trial for the purpose of having the person’s testimony available to be tendered as evidence at the trial.  O. Reg. 8/07, s. 1. Discretion of Court (3) In exercising its discretion to order an examination under subrule (2), the court shall take into account, (a) the convenience of the person whom the party seeks to examine; (b) the possibility that the person will be unavailable to testify at the trial by reason of death, infirmity or sickness; (c) the possibility that the person will be beyond the jurisdiction of the court at the time of the trial; (d) the expense of bringing the person to the trial; (e) whether the witness ought to give evidence in person at the trial; and (f) any other relevant consideration.  O. Reg. 8/07, s. 1. Expert Witness (4) Before moving for leave to examine an expert witness under subrule (2), the moving party shall serve on every other party the report of the expert witness referred to in subrule 53.03 (1) (calling expert witness at trial) unless the court orders otherwise.  O. Reg. 8/07, s. 1. Interim Costs, Pending or Intended Proceeding (5) Where an order is made under subrule (2) for the examination of a witness in respect of a matter that is or will be the subject of a pending or intended proceeding, the court may, if it considers it appropriate to do so, order the moving party to pay to any other party, in advance of the examination, any or all of the costs reasonably expected to arise for the other party from the examination and any related cross-examination or re-examination.  O. Reg. 8/07, s. 1.
RULE 36 TAKING EVIDENCE BEFORE TRIAL
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Where Available
 36.01 (1) In this rule, “party” includes a party to a pending or intended proceeding.  O. Reg. 8/07, s. 1. By Consent or by Order (2) A party who intends to introduce the evidence of a person at trial may, with leave of the court or the consent of the parties, examine the person on oath or affirmation before trial for the purpose of having the person’s testimony available to be tendered as evidence at the trial.  O. Reg. 8/07, s. 1. Discretion of Court (3) In exercising its discretion to order an examination under subrule (2), the court shall take into account, (a) the convenience of the person whom the party seeks to examine; (b) the possibility that the person will be unavailable to testify at the trial by reason of death, infirmity or sickness; (c) the possibility that the person will be beyond the jurisdiction of the court at the time of the trial; (d) the expense of bringing the person to the trial; (e) whether the witness ought to give evidence in person at the trial; and (f) any other relevant consideration.  O. Reg. 8/07, s. 1. Expert Witness (4) Before moving for leave to examine an expert witness under subrule (2), the moving party shall serve on every other party the report of the expert witness referred to in subrule 53.03 (1) (calling expert witness at trial) unless the court orders otherwise.  O. Reg. 8/07, s. 1. Interim Costs, Pending or Intended Proceeding (5) Where an order is made under subrule (2) for the examination of a witness in respect of a matter that is or will be the subject of a pending or intended proceeding, the court may, if it considers it appropriate to do so, order the moving party to pay to any other party, in advance of the examination, any or all of the costs reasonably expected to arise for the other party from the examination and any related cross-examination or re-examination.  O. Reg. 8/07, s. 1.
Procedure
 36.02 (1) Subject to subrule (2), Rule 34 applies to the examination of a witness under rule 36.01, unless the court orders otherwise, and, for the purpose, a reference in Rule 34 to a party includes a reference to a party to a pending or intended proceeding.  O. Reg. 8/07, s. 2. (2) A witness examined under rule 36.01 may be examined, cross-examined and re-examined in the same manner as a witness at trial.  R.R.O. 1990, Reg. 194, r. 36.02 (2).
Examinations outside Ontario
 36.03 Where an order is made under rule 36.01 for the examination of a witness outside Ontario, the order shall, if the moving party requests it, provide for the issuing of a commission and letter of request under subrules 34.07 (2) and (3) for the taking of the evidence of the witness and, on consent of the parties, any other witness in the same jurisdiction, and the order shall be in Form 34E.  R.R.O. 1990, Reg. 194, r. 36.03.
Use at Trial
 36.04 (1) In subrules (2) to (7), where an action, (a) is brought by or against a corporation, “party” includes an officer, director or employee of the corporation; (b) is brought by or against a partnership or a sole proprietorship using the firm name, “party” includes each person who was, or is alleged to have been, a partner or the sole proprietor, as the case may be; (c) is brought by or against a party under disability, “party” includes the litigation guardian; (d) is brought by or against an assignee, “party” includes the assignor; (e) is brought by or against a trustee of the estate of a bankrupt, “party” includes the bankrupt; (f) is brought or defended for the immediate benefit of a person who is not a party, “party” includes the person for whose immediate benefit the action is brought or defended.  R.R.O. 1990, Reg. 194, r. 36.04 (1); O. Reg. 69/95, s. 18. (2) At trial any party may use the transcript and videotape or other recording of an examination under rule 36.01 or 36.03 of a witness who is not a party as the evidence of the witness, unless the court orders otherwise on the ground that the witness ought to give evidence at trial or for any other sufficient reason.  R.R.O. 1990, Reg. 194, r. 36.04 (2). (3) A witness who is not a party and whose evidence has been taken under rule 36.01 or 36.03 shall not be called to give evidence at the trial, except with leave of the trial judge.  R.R.O. 1990, Reg. 194, r. 36.04 (3). (4) With leave of the trial judge or the consent of the parties, a party may use at trial the transcript and a videotape or other recording of an examination under rule 36.01 of a witness who is a party as the evidence of the witness.  R.R.O. 1990, Reg. 194, r. 36.04 (4). (5) In exercising its discretion under subrule (4), the court shall take into account, (a) whether the party is unavailable to testify by reason of death, infirmity or sickness; (b) whether the party ought to give evidence in person at the trial; and (c) any other relevant consideration.  R.R.O. 1990, Reg. 194, r. 36.04 (5). (6) Use of evidence taken under rule 36.01 or 36.03 is subject to any ruling by the trial judge respecting its admissibility.  R.R.O. 1990, Reg. 194, r. 36.04 (6). (7) The transcript and a videotape or other recording may be filed with the court at trial and need not be read or played at trial unless a party or the trial judge requires it.  R.R.O. 1990, Reg. 194, r. 36.04 (7). MOTIONS AND APPLICATIONS RULE 37  MOTIONS — JURISDICTION AND PROCEDURE
MOTIONS AND APPLICATIONS
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RULE 37 MOTIONS — JURISDICTION AND PROCEDURE
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Notice of Motion
 37.01 A motion shall be made by a notice of motion (Form 37A) unless the nature of the motion or the circumstances make a notice of motion unnecessary.  R.R.O. 1990, Reg. 194, r. 37.01. Jurisdiction to Hear a Motion Jurisdiction of Judge 37.02 (1) A judge has jurisdiction to hear any motion in a proceeding.  R.R.O. 1990, Reg. 194, r. 37.02 (1). Jurisdiction of an Associate Judge (2) An associate judge has jurisdiction to hear any motion in a proceeding, and has all the jurisdiction of a judge in respect of a motion, except a motion, (a) where the power to grant the relief sought is conferred expressly on a judge by a statute or rule; (b) to set aside, vary or amend an order of a judge; (c) to abridge or extend a time prescribed by an order that an associate judge could not have made; (d) for judgment on consent in favour of or against a party under disability; (e) relating to the liberty of the subject; (f) under section 4 or 5 of the Judicial Review Procedure Act; or (g) in an appeal.  R.R.O. 1990, Reg. 194, r. 37.02 (2); O. Reg. 711/20, s. 7; O. Reg. 383/21, s. 15. Jurisdiction of Registrar (3) The registrar shall make an order granting the relief sought on a motion for an order on consent, if, (a) the consent of all parties (including the consent of any party to be added, deleted or substituted) is filed; (b) the consent states that no party affected by the order is under disability; and (c) the order sought is for, (i) amendment of a pleading, notice of application or notice of motion, (ii) addition, deletion or substitution of a party, (iii) removal of a lawyer as lawyer of record; (iv) setting aside the noting of a party in default, (v) setting aside a default judgment, (vi) discharge of a certificate of pending litigation, (vii) security for costs in a specified amount, (viii) re-attendance of a witness to answer questions on an examination, (ix) fulfilment of undertakings given on an examination, or (x) dismissal of a proceeding, with or without costs.  O. Reg. 19/03, s. 8; O. Reg. 575/07, s. 21.
Jurisdiction to Hear a Motion
 37.02 (1) A judge has jurisdiction to hear any motion in a proceeding.  R.R.O. 1990, Reg. 194, r. 37.02 (1). Jurisdiction of an Associate Judge (2) An associate judge has jurisdiction to hear any motion in a proceeding, and has all the jurisdiction of a judge in respect of a motion, except a motion, (a) where the power to grant the relief sought is conferred expressly on a judge by a statute or rule; (b) to set aside, vary or amend an order of a judge; (c) to abridge or extend a time prescribed by an order that an associate judge could not have made; (d) for judgment on consent in favour of or against a party under disability; (e) relating to the liberty of the subject; (f) under section 4 or 5 of the Judicial Review Procedure Act; or (g) in an appeal.  R.R.O. 1990, Reg. 194, r. 37.02 (2); O. Reg. 711/20, s. 7; O. Reg. 383/21, s. 15. Jurisdiction of Registrar (3) The registrar shall make an order granting the relief sought on a motion for an order on consent, if, (a) the consent of all parties (including the consent of any party to be added, deleted or substituted) is filed; (b) the consent states that no party affected by the order is under disability; and (c) the order sought is for, (i) amendment of a pleading, notice of application or notice of motion, (ii) addition, deletion or substitution of a party, (iii) removal of a lawyer as lawyer of record; (iv) setting aside the noting of a party in default, (v) setting aside a default judgment, (vi) discharge of a certificate of pending litigation, (vii) security for costs in a specified amount, (viii) re-attendance of a witness to answer questions on an examination, (ix) fulfilment of undertakings given on an examination, or (x) dismissal of a proceeding, with or without costs.  O. Reg. 19/03, s. 8; O. Reg. 575/07, s. 21.
Where Motions to be Brought
 37.03 Unless the court orders otherwise, all motions shall be brought in the county where the proceeding was commenced or to which it has been transferred under rule 13.1.02 and, if a motion is to be heard in person, it shall be heard in that county. O. Reg. 689/20, s. 22.
Motions — To Whom to be Made
 37.04 A motion shall be made to the court if it is within the jurisdiction of an associate judge or registrar and otherwise shall be made to a judge.  R.R.O. 1990, Reg. 194, r. 37.04; O. Reg. 19/03, s. 9; O. Reg. 711/20, s. 7; O. Reg. 383/21, s. 15. Hearing Date for Motions Where no practice direction 37.05 (1) At any place where no practice direction concerning the scheduling of motions is in effect, a motion may be set down for hearing on any day on which a judge or associate judge is scheduled to hear motions.  O. Reg. 770/92, s. 10; O. Reg. 711/20, s. 7; O. Reg. 383/21, s. 15. Exception, lengthy hearing (2) If a lawyer estimates that the hearing of the motion will be more than two hours long, a hearing date shall be obtained from the registrar before the notice of motion is served.  O. Reg. 770/92, s. 10; O. Reg. 575/07, s. 3. Urgent motion (3) An urgent motion may be set down for hearing on any day on which a judge or associate judge is scheduled to hear motions, even if a lawyer estimates that the hearing is likely to be more than two hours long.  O. Reg. 770/92, s. 10; O. Reg. 575/07, s. 3; O. Reg. 711/20, s. 7; O. Reg. 383/21, s. 15.
Hearing Date for Motions
 37.05 (1) At any place where no practice direction concerning the scheduling of motions is in effect, a motion may be set down for hearing on any day on which a judge or associate judge is scheduled to hear motions.  O. Reg. 770/92, s. 10; O. Reg. 711/20, s. 7; O. Reg. 383/21, s. 15.  Exception, lengthy hearing (2) If a lawyer estimates that the hearing of the motion will be more than two hours long, a hearing date shall be obtained from the registrar before the notice of motion is served.  O. Reg. 770/92, s. 10; O. Reg. 575/07, s. 3. Urgent motion (3) An urgent motion may be set down for hearing on any day on which a judge or associate judge is scheduled to hear motions, even if a lawyer estimates that the hearing is likely to be more than two hours long.  O. Reg. 770/92, s. 10; O. Reg. 575/07, s. 3; O. Reg. 711/20, s. 7; O. Reg. 383/21, s. 15.
Content of Notice
 37.06 Every notice of motion (Form 37A) shall, (a) state the precise relief sought; (b) state the grounds to be argued, including a reference to any statutory provision or rule to be relied on; and (c) list the documentary evidence to be used at the hearing of the motion.  R.R.O. 1990, Reg. 194, r. 37.06. Service of Notice Required as General Rule 37.07 (1) The notice of motion shall be served on any party or other person who will be affected by the order sought, unless these rules provide otherwise.  R.R.O. 1990, Reg. 194, r. 37.07 (1); O. Reg. 260/05, s. 9 (1). Where Not Required (2) Where the nature of the motion or the circumstances render service of the notice of motion impracticable or unnecessary, the court may make an order without notice.  R.R.O. 1990, Reg. 194, r. 37.07 (2). (3) Where the delay necessary to effect service might entail serious consequences, the court may make an interim order without notice.  R.R.O. 1990, Reg. 194, r. 37.07 (3). (4) Unless the court orders or these rules provide otherwise, an order made without notice to a party or other person affected by the order shall be served on the party or other person, together with a copy of the notice of motion and all affidavits and other documents used at the hearing of the motion.  O. Reg. 219/91, s. 3; O. Reg. 260/05, s. 9 (2). Where Notice Ought to Have Been Served (5) Where it appears to the court that the notice of motion ought to have been served on a person who has not been served, the court may, (a) dismiss the motion or dismiss it only against the person who was not served; (b) adjourn the motion and direct that the notice of motion be served on the person; or (c) direct that any order made on the motion be served on the person.  R.R.O. 1990, Reg. 194, r. 37.07 (5). Minimum Notice Period (6) Where a motion is made on notice, the notice of motion shall be served at least seven days before the date on which the motion is to be heard.  R.R.O. 1990, Reg. 194, r. 37.07 (6); O. Reg. 171/98, s. 12; O. Reg. 438/08, s. 33.
Service of Notice
 37.07 (1) The notice of motion shall be served on any party or other person who will be affected by the order sought, unless these rules provide otherwise.  R.R.O. 1990, Reg. 194, r. 37.07 (1); O. Reg. 260/05, s. 9 (1). Where Not Required (2) Where the nature of the motion or the circumstances render service of the notice of motion impracticable or unnecessary, the court may make an order without notice.  R.R.O. 1990, Reg. 194, r. 37.07 (2). (3) Where the delay necessary to effect service might entail serious consequences, the court may make an interim order without notice.  R.R.O. 1990, Reg. 194, r. 37.07 (3). (4) Unless the court orders or these rules provide otherwise, an order made without notice to a party or other person affected by the order shall be served on the party or other person, together with a copy of the notice of motion and all affidavits and other documents used at the hearing of the motion.  O. Reg. 219/91, s. 3; O. Reg. 260/05, s. 9 (2). Where Notice Ought to Have Been Served (5) Where it appears to the court that the notice of motion ought to have been served on a person who has not been served, the court may, (a) dismiss the motion or dismiss it only against the person who was not served; (b) adjourn the motion and direct that the notice of motion be served on the person; or (c) direct that any order made on the motion be served on the person.  R.R.O. 1990, Reg. 194, r. 37.07 (5). Minimum Notice Period (6) Where a motion is made on notice, the notice of motion shall be served at least seven days before the date on which the motion is to be heard.  R.R.O. 1990, Reg. 194, r. 37.07 (6); O. Reg. 171/98, s. 12; O. Reg. 438/08, s. 33.
Filing of Notice of Motion
 37.08 (1) Where a motion is made on notice, the notice of motion shall be filed with proof of service at least seven days before the hearing date in the court office where the motion is to be heard.  R.R.O. 1990, Reg. 194, r. 37.08 (1); O. Reg. 171/98, s. 13; O. Reg. 438/08, s. 34. (2) Where service of the notice of motion is not required, it shall be filed at or before the hearing.  R.R.O. 1990, Reg. 194, r. 37.08 (2).
Confirmation of Motion
 37.10.1 (1) A party who makes a motion on notice to another party shall confer or attempt to confer with the other party and shall, not later than 2 p.m. five days before the hearing date, (a) give the registrar a confirmation of motion (Form 37B) by, (i) sending it by e-mail to the court office, or (ii) leaving it at the court office; and (b) send a copy of the confirmation of motion to the other party by e-mail. O. Reg. 537/18, s. 7 (1); O. Reg. 689/20, s. 23 (1); O. Reg. 383/21, s. 4; O. Reg. 224/22, s. 2 (1, 3). Failure to Send Copy of Confirmation (2) If a party fails to send a copy of the confirmation of motion to a responding party in accordance with clause (1) (b), the responding party may, not later than 10 a.m. four days before the hearing date, (a) give the registrar a confirmation of motion (Form 37B) by, (i) sending it by e-mail to the court office, or (ii) leaving it at the court office; and (b) send a copy of the confirmation of motion to the moving party by e-mail. O. Reg. 537/18, s. 7 (1); O. Reg. 689/20, s. 23 (2); O. Reg. 383/21, s. 4; O. Reg. 224/22, s. 2 (2, 3). Duty to Update (3) A party who has given a confirmation of motion and later determines that the confirmation is no longer correct shall immediately, (a) give the registrar a corrected confirmation of motion (Form 37B) by, (i) sending it by e-mail to the court office, or (ii) leaving it at the court office; and (b) send a copy of the corrected confirmation of motion to the other party by e-mail.  O. Reg. 14/04, s. 19; O. Reg. 689/20, s. 23 (3); O. Reg. 383/21, s. 4; O. Reg. 224/22, s. 2 (3). Effect of Failure to Confirm (4) If no confirmation is given under subrule (1), the motion shall not be heard and is deemed to have been abandoned, unless the court orders otherwise. O. Reg. 537/18, s. 7 (2). Costs (5) If a motion is deemed to have been abandoned under subrule (4) and the responding party gave a confirmation of motion in accordance with subrule (2), the responding party may be heard on the costs of the abandoned motion on the hearing date scheduled for the abandoned motion. O. Reg. 537/18, s. 7 (2).
Hearing without Oral Argument
 37.12.1 (1) Where a motion is on consent, unopposed or without notice under subrule 37.07 (2), the motion may be heard in writing without the attendance of the parties, unless the court orders otherwise.  O. Reg. 465/93, s. 4 (2). (2) Where the motion is on consent, the consent and a draft order shall be filed with the notice of motion.  O. Reg. 766/93, s. 1 (1). (2.1) In the case of a motion on consent in the Court of Appeal, an affidavit or other document setting out the reasons why it is appropriate to make the order sought on the motion shall also be filed with the notice of motion. O. Reg. 82/17, s. 3. (3) Where the motion is unopposed, a notice from the responding party stating that the party does not oppose the motion and a draft order shall be filed with the notice of motion.  O. Reg. 766/93, s. 1 (1). Opposed Motions in Writing (4) The moving party may propose in the notice of motion that the motion be heard in writing without the attendance of the parties, in which case, (a) the motion shall be made on at least fourteen days notice; (b) the moving party shall serve with the notice of motion and immediately file, with proof of service in the court office where the motion is to be heard, a motion record, a draft order and a factum entitled factum for a motion in writing, setting out the moving party’s argument; (c) the motion may be heard in writing without the attendance of the parties, unless the court orders otherwise.  O. Reg. 465/93, s. 4 (2); O. Reg. 766/93, s. 1 (2); O. Reg. 689/20, s. 25. (5) Within ten days after being served with the moving party’s material, the responding party shall serve and file, with proof of service, in the court office where the motion is to be heard, (a) a consent to the motion; (b) a notice that the responding party does not oppose the motion; (c) a motion record, a notice that the responding party agrees to have the motion heard and determined in writing under this rule and a factum entitled factum for a motion in writing, setting out the party’s argument; or (d) a notice that the responding party intends to make oral argument, along with any material intended to be relied upon by the party.  O. Reg. 465/93, s. 4 (2). (6) Where the responding party delivers a notice under subrule (5) that the party intends to make oral argument, the moving party may either attend the hearing and make oral argument or not attend and rely on the party’s motion record and factum.  O. Reg. 465/93, s. 4 (2).
Setting Aside, Varying or Amending Orders
 37.14 (1) A party or other person who, (a) is affected by an order obtained on motion without notice; (b) fails to appear on a motion through accident, mistake or insufficient notice; or (c) is affected by an order of a registrar, may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion.  R.R.O. 1990, Reg. 194, r. 37.14 (1); O. Reg. 132/04, s. 9. (2) On a motion under subrule (1), the court may set aside or vary the order on such terms as are just.  R.R.O. 1990, Reg. 194, r. 37.14 (2). Order Made by Registrar (3) A motion under subrule (1) or any other rule to set aside, vary or amend an order of a registrar may be made to a judge or associate judge, at a place determined in accordance with rule 37.03 (where motions to be brought).  R.R.O. 1990, Reg. 194, r. 37.14 (3); O. Reg. 689/20, s. 26; O. Reg. 711/20, s. 7; O. Reg. 383/21, s. 15 Order Made by Judge (4) A motion under subrule (1) or any other rule to set aside, vary or amend an order of a judge may be made, (a) to the judge who made it, at any place; or (b) to any other judge, at a place determined in accordance with rule 37.03 (where motions to be brought).  R.R.O. 1990, Reg. 194, r. 37.14 (4); O. Reg. 689/20, s. 26. Order Made by Associate Judge (5) A motion under subrule (1) or any other rule to set aside, vary or amend an order of an associate judge may be made, (a) to the associate judge who made it, at any place; or (b) to any other associate judge or to a judge, at a place determined in accordance with rule 37.03 (where motions to be brought).  R.R.O. 1990, Reg. 194, r. 37.14 (5); O. Reg. 689/20, s. 26; O. Reg. 711/20, s. 7; O. Reg. 383/21, s. 15. Order Made in Court of Appeal or Divisional Court (6) A motion under subrule (1) or any other rule to set aside, vary or amend an order made by a judge or panel of the Court of Appeal or Divisional Court may be made, (a) where the order was made by a judge, to the judge who made it or any other judge of the court; or (b) where the order was made by a panel of the court, to the panel that made it or any other panel of the court.  R.R.O. 1990, Reg. 194, r. 37.14 (6); O. Reg. 82/17, s. 4, 17.
Motions in a Complicated Proceeding or Series of Proceedings
 37.15 (1) Where a proceeding involves complicated issues or where there are two or more proceedings that involve similar issues, the Chief Justice or Associate Chief Justice of the Superior Court of Justice, a regional senior judge of the Superior Court of Justice or a judge designated by any of them may direct that all motions in the proceeding or proceedings be heard by a particular judge, and rule 37.03 (where motions to be brought) does not apply to those motions.  R.R.O. 1990, Reg. 194, r. 37.15 (1); O. Reg. 292/99, ss. 2 (3), 4; O. Reg. 689/20, s. 27. (1.1) A judge who is directed to hear all motions under subrule (1) may refer to an associate judge any motion within the jurisdiction of an associate judge under subrule 37.02 (2) unless the judge who made the direction under subrule (1) directs otherwise.  O. Reg. 348/97, s. 2; O. Reg. 711/20, s. 7; O. Reg. 383/21, s. 15. (1.2) A judge who is directed to hear all motions under subrule (1) and an associate judge to whom a motion is referred under subrule (1.1) may give such directions and make such procedural orders as are necessary to promote the most expeditious and least expensive determination of the proceeding.  O. Reg. 438/08, s. 37 (1); O. Reg. 394/09, s. 16; O. Reg. 711/20, s. 7; O. Reg. 383/21, s. 15. (2) A judge who hears motions pursuant to a direction under subrule (1) shall not preside at the trial of the actions or the hearing of the applications except with the written consent of all parties.  R.R.O. 1990, Reg. 194, r. 37.15 (2); O. Reg. 438/08, s. 37 (2).
Prohibiting Motions without Leave
 37.16 On motion by any party, a judge or associate judge may by order prohibit another party from making further motions in the proceeding without leave, where the judge or associate judge on the hearing of the motion is satisfied that the other party is attempting to delay or add to the costs of the proceeding or otherwise abuse the process of the court by a multiplicity of frivolous or vexatious motions.  R.R.O. 1990, Reg. 194, r. 37.16; O. Reg. 711/20, s. 7; O. Reg. 383/21, s. 15.
Motion before Commencement of Proceeding
 37.17 In an urgent case, a motion may be made before the commencement of a proceeding on the moving party’s undertaking to commence the proceeding forthwith.  R.R.O. 1990, Reg. 194, r. 37.17. RULE 38  APPLICATIONS — JURISDICTION AND PROCEDURE
RULE 38 APPLICATIONS — JURISDICTION AND PROCEDURE
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Application of the Rule
 38.01 (1) Rules 38.02 to 38.12 apply to all proceedings commenced by a notice of application under rule 14.05, subject to subrules (2) and (3). O. Reg. 43/14, s. 8 (1). (2) Rules 38.02 and 38.09 do not apply to applications to the Divisional Court.  R.R.O. 1990, Reg. 194, r. 38.01 (2). (3) Rules 38.02 to 38.12 apply to an application made under subsection 140 (3) of the Courts of Justice Act, unless otherwise provided in rule 38.13 and subject to any modifications set out in that rule. O. Reg. 43/14, s. 8 (2).
Applications — To Whom to be Made
 38.02 An application shall be made to a judge.  R.R.O. 1990, Reg. 194, r. 38.02. Place and Date of Hearing Place of Commencement 38.03 (1) The applicant shall, in the notice of application, name the place of commencement in accordance with rule 13.1.01.  O. Reg. 438/08, s. 38. Place of In-Person Hearings (1.1) If the application is to be heard in person, it shall be heard in the county where the proceeding was commenced or to which it has been transferred under rule 13.1.02, unless the court orders otherwise. O. Reg. 689/20, s. 28. Hearing date where no practice direction (2) At any place where no practice direction concerning the scheduling of applications is in effect, an application may be set down for hearing on any day on which a judge is scheduled to hear applications.  O. Reg. 770/92, s. 11. Exception, lengthy hearing (3) If a lawyer estimates that the hearing of the application will be more than two hours long, a hearing date shall be obtained from the registrar before the notice of application is served.  O. Reg. 770/92, s. 11; O. Reg. 575/07, s. 3. Urgent application (3.1) An urgent application may be set down for hearing on any day on which a judge is scheduled to hear applications, even if a lawyer estimates that the hearing is likely to be more than two hours long.  O. Reg. 770/92, s. 11; O. Reg. 575/07, s. 3. Counter-Application (4) If a notice of application has been served and the respondent wishes to make an application against the applicant, or against the applicant and another person, the respondent shall make the application at the same place and time to the same judge, unless the court orders otherwise.  O. Reg. 14/04, s. 20 (3).
Place and Date of Hearing
 38.03 (1) The applicant shall, in the notice of application, name the place of commencement in accordance with rule 13.1.01.  O. Reg. 438/08, s. 38. Place of In-Person Hearings (1.1) If the application is to be heard in person, it shall be heard in the county where the proceeding was commenced or to which it has been transferred under rule 13.1.02, unless the court orders otherwise. O. Reg. 689/20, s. 28. Hearing date where no practice direction (2) At any place where no practice direction concerning the scheduling of applications is in effect, an application may be set down for hearing on any day on which a judge is scheduled to hear applications.  O. Reg. 770/92, s. 11. Exception, lengthy hearing (3) If a lawyer estimates that the hearing of the application will be more than two hours long, a hearing date shall be obtained from the registrar before the notice of application is served.  O. Reg. 770/92, s. 11; O. Reg. 575/07, s. 3. Urgent application (3.1) An urgent application may be set down for hearing on any day on which a judge is scheduled to hear applications, even if a lawyer estimates that the hearing is likely to be more than two hours long.  O. Reg. 770/92, s. 11; O. Reg. 575/07, s. 3. Counter-Application (4) If a notice of application has been served and the respondent wishes to make an application against the applicant, or against the applicant and another person, the respondent shall make the application at the same place and time to the same judge, unless the court orders otherwise.  O. Reg. 14/04, s. 20 (3).
Content of Notice
 38.04 Every notice of application (Form 14E, 14E.1, 68A, 73A, 74.44 or 75.5) shall state, (a) the precise relief sought; (b) the grounds to be argued, including a reference to any statutory provision or rule to be relied on; and (c) the documentary evidence to be used at the hearing of the application.  R.R.O. 1990, Reg. 194, r. 38.04; O. Reg. 484/94, s. 8; O. Reg. 43/14, s. 9.
Issuing of Notice
 38.05 A notice of application shall be issued as provided by rule 14.07 before it is served.  R.R.O. 1990, Reg. 194, r. 38.05. Service of Notice Generally 38.06 (1) The notice of application shall be served on all parties and, where there is uncertainty whether anyone else should be served, the applicant may make a motion without notice to a judge for an order for directions.  R.R.O. 1990, Reg. 194, r. 38.06 (1). Where Notice Ought to Have Been Served (2) Where it appears to the judge hearing the application that the notice of application ought to have been served on a person who has not been served, the judge may, (a) dismiss the application or dismiss it only against the person who was not served; (b) adjourn the application and direct that the notice of application be served on the person; or (c) direct that any judgment made on the application be served on the person.  R.R.O. 1990, Reg. 194, r. 38.06 (2). Minimum Notice Period (3) The notice of application shall be served at least ten days before the date of the hearing of the application, except where the notice is served outside Ontario, in which case it shall be served at least twenty days before the hearing date.  R.R.O. 1990, Reg. 194, r. 38.06 (3). Filing Proof of Service (4) The notice of application shall be filed with proof of service at least seven days before the hearing date in the court office where the application is to be heard.  R.R.O. 1990, Reg. 194, r. 38.06 (4); O. Reg. 171/98, s. 15; O. Reg. 438/08, s. 39.
Service of Notice
 38.06 (1) The notice of application shall be served on all parties and, where there is uncertainty whether anyone else should be served, the applicant may make a motion without notice to a judge for an order for directions.  R.R.O. 1990, Reg. 194, r. 38.06 (1). Where Notice Ought to Have Been Served (2) Where it appears to the judge hearing the application that the notice of application ought to have been served on a person who has not been served, the judge may, (a) dismiss the application or dismiss it only against the person who was not served; (b) adjourn the application and direct that the notice of application be served on the person; or (c) direct that any judgment made on the application be served on the person.  R.R.O. 1990, Reg. 194, r. 38.06 (2). Minimum Notice Period (3) The notice of application shall be served at least ten days before the date of the hearing of the application, except where the notice is served outside Ontario, in which case it shall be served at least twenty days before the hearing date.  R.R.O. 1990, Reg. 194, r. 38.06 (3). Filing Proof of Service (4) The notice of application shall be filed with proof of service at least seven days before the hearing date in the court office where the application is to be heard.  R.R.O. 1990, Reg. 194, r. 38.06 (4); O. Reg. 171/98, s. 15; O. Reg. 438/08, s. 39.
Notice of Appearance
 38.07 (1) A respondent who has been served with a notice of application shall forthwith deliver a notice of appearance (Form 38A).  R.R.O. 1990, Reg. 194, r. 38.07 (1). (2) A respondent who has not delivered a notice of appearance is not entitled to, (a) receive notice of any step in the application; (b) receive any further document in the application, unless, (i) the court orders otherwise, or (ii) the document is an amended notice of application that changes the relief sought; (c) file material, examine a witness or cross-examine on an affidavit on the application; or (d) be heard at the hearing of the application, except with leave of the presiding judge.  O. Reg. 351/94, s. 3. (3) Despite subrule (2), a party who is served with a notice of application outside Ontario may make a motion under subrule 17.06 (1) before delivering a notice of appearance and is entitled to be served with material responding to the motion.  O. Reg. 351/94, s. 3. Exception, applications to pass accounts (4) Subrules (1) and (2) do not apply to a notice of application to pass accounts under Rule 74.  O. Reg. 484/94, s. 9. 38.07.1 Revoked:  O. Reg. 457/01, s. 8.