Material for Use on Application
 38.09 (1) The applicant shall, (a) serve an application record, together with a factum consisting of a concise argument stating the facts and law relied on by the applicant, at least seven days before the hearing, on every respondent who has served a notice of appearance; and (b) file the application record and factum, with proof of service, at least seven days before the hearing, in the court office where the application is to be heard.  R.R.O. 1990, Reg. 194, r. 38.09 (1); O. Reg. 171/98, s. 17 (1); O. Reg. 206/02, s. 9 (1); O. Reg. 438/08, s. 40 (1, 2). (2) The applicant’s application record shall contain, in consecutively numbered pages arranged in the following order, (a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter; (b) a copy of the notice of application; (c) a copy of all affidavits and other material served by any party for use on the application; (d) a list of all relevant transcripts of evidence in chronological order, but not necessarily the transcripts themselves; and (e) a copy of any other material in the court file that is necessary for the hearing of the application.  R.R.O. 1990, Reg. 194, r. 38.09 (2). Respondent’s Application Record and Factum (3) The respondent shall serve on every other party, at least four days before the hearing, a factum consisting of a concise argument stating the facts and law relied on by the respondent.  O. Reg. 171/98, s. 17 (2); O. Reg. 206/02, s. 9 (2); O. Reg. 14/04, s. 21; O. Reg. 438/08, s. 40 (3). (3.1) If of the opinion that the application record is incomplete, the respondent may serve on every other party, at least four days before the hearing, a respondent’s application record containing, in consecutively numbered pages arranged in the following order, (a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter; and (b) a copy of any material to be used by the respondent on the application and not included in the applicant’s application record.  O. Reg. 171/98, s. 17 (2); O. Reg. 438/08, s. 40 (4). (3.2) The respondent’s factum, and the respondent’s application record, if any, shall be filed with proof of service in the court office where the application is to be heard, at least four days before the hearing.  O. Reg. 171/98, s. 17 (2); O. Reg. 438/08, s. 40 (5). Dispensing with Record and Factum (4) A judge, before or at the hearing of the application, may dispense with compliance with this rule in whole or in part.  R.R.O. 1990, Reg. 194, r. 38.09 (4). Material May be Filed as Part of Record (5) Any material served by a party for use on an application may be filed, together with proof of service, as part of the party’s application record and need not be filed separately if the record is filed within the time prescribed for filing the notice or other material.  R.R.O. 1990, Reg. 194, r. 38.09 (5). Transcript of Evidence (6) A party who intends to refer to a transcript of evidence at the hearing of an application shall file a copy of the transcript as provided by rule 34.18.  R.R.O. 1990, Reg. 194, r. 38.09 (6). Exceptions, applications in estate matters (7) Subrules (1) to (6) do not apply to applications under Rule 74 or 74.1.  O. Reg. 484/94, s. 10; O. Reg. 111/21, s. 5. (8) Subrules (1) to (6) apply to applications under Rule 75, but neither the applicant nor the respondent is required to serve a factum.  O. Reg. 484/94, s. 10. Confirmation of Application Confirmation of Application 38.09.1 (1) A party who makes an application on notice to another party shall, (a) confer or attempt to confer with the other party; (b) not later than 2 p.m. five days before the hearing date, give the registrar a confirmation of application (Form 38B) by, (i) sending it by e-mail to the court office, or (ii) leaving it at the court office; and (c) send a copy of the confirmation of application to the other party by e-mail.  O. Reg. 14/04, s. 22; O. Reg. 438/08, s. 41; O. Reg. 689/20, s. 29 (1); O. Reg. 383/21, s. 4; O. Reg. 224/22, s. 3 (1, 2). Effect of Failure to Confirm (2) If no confirmation is given, the application shall not be heard, except by order of the court.  O. Reg. 14/04, s. 22. Duty to Update (3) A party who has given a confirmation of application and later determines that the confirmation is no longer correct shall immediately, (a) give the registrar a corrected confirmation of application (Form 38B), 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 application to the other party by e-mail.  O. Reg. 14/04, s. 22; O. Reg. 689/20, s. 29 (2); O. Reg. 383/21, s. 4; O. Reg. 224/22, s. 3 (2).