Clients retain counsel as advocates for the purpose of obtaining the desired result. Whether that result be a monetary judgment, a declaration or an injunction, there is (or at least ought to be) a purpose behind the litigation. It serves the client very little to obtain a “courtroom victory” in circumstances where the Order obtained is drafted in a manner that does not achieve the intended result. If that were to occur, the client would not be well served and you may be exposed to a claim for negligence.
How then does one define the appropriate Order and draft it? The form of Order must achieve its intended result. Pause. Review. Reflect. Does the wording of the Order provide the client what it needs on that particular motion? If so, its off to the races you go. If not, then re-draft until the intended effect is achieved. Here’s how:
II. Work backwards
It is common for the ultimate Order to include different language than that which is set out in the Notice of Motion. A good practice is for counsel to draft the Order being sought prior to drafting the substantive motion material. This should help counsel tailor the substantive motion material to the specific relief being pursued. Once the final version of the Order is in front of you, that will help identify what evidence must be led to get your client the intended result.
Another benefit in so doing is that counsel can then “copy and paste” the language in the final Order into the Notice of Motion. This ensures there are no discrepancies in the relief claimed which otherwise may result in the court declining to grant your form of Order on the basis it is inconsistent with the relief claimed in the Notice of Motion. This is especially important on motions brought without notice or those that are unopposed. Take the following narrative as a case in point:
COUNSEL: Your Honour, I am handing up a draft Order. I have not heard from the other side and no one has appeared today despite being properly served.
COURT: Thank you counsel. I see that your Order asks for the productions to be paid for by the Defendant and that he re-attend for examination on any issues that may arise therefrom.
COURT: Where is that in your Notice of Motion?
COUNSEL: Well. Your Honour. The court’s indulgence for a moment please.
Your Honour is correct. That specific relief was not included in our Notice of Motion, however notwithstanding that we would respectfully ask the Order be granted in the form sought as the Defendant has not appeared today and clearly had knowledge that we were seeking the productions in any event.
COURT: Be that as it may, how is the court to know whether the Defendant would have appeared today if he knew you were seeking an order other than what you included in the Notice of Motion? The court is prepared to grant an Order in the form sought in your Notice of Motion noting it was served on the Defendant. If you require the additional relief, you may adjourn the motion to permit your client to deliver an Amended Notice of Motion to be served on the Defendant.
Had counsel prepared the precise relief needed first, the Notice of Motion would/should mirror that form of Order and the aforeferenced narrative likely would have gone another way.
III. Do not rely on the court
Do not presume the court will provide assistance in crafting the specific form of Order. Nor should counsel presume the court will vet the order to ensure it achieves the intended result. It is erroneous and presumptuous for counsel to think that if the court signs the Order it must be “right”.
IV. Avoiding inadvertent errors
(a) Orders affecting title
Your client is the purchaser of a property pursuant to an Agreement of Purchase and Sale that overlooks a mythical unicorn tree (think specific performance). The Seller advises it does not intend to close and will be selling the property to another buyer for more money the next day. Your client instructs you to obtain a Certificate of Pending Litigation (“CPL”) on an expedited basis. The court grants your Order for a CPL which includes the property’s municipal and legal descriptions. The legal description however inadvertently refers to “PT LT G PL 6317, Scarborough” when it ought to read “PT LT 6 PL 6317, Scarborough”. You return to the office and provide the entered Order and issued CPL to your conveyancer for immediate registration -- and then you find out that it cannot be registered because of the incorrect legal description: the “G” should be a “6”. The Order did not achieve its intended result.
When preparing an Order that affects title to real property in one form or another, it is critical that counsel ensures it properly identifies its legal description. If it does not then it cannot be registered on title and absent that it serves little purpose. Moreover, in circumstances where there may be time to return to court to amend the Order, it stands to reason that the fees and disbursements for doing so cannot and/or should not be passed on to the client. It often helps to have a second pair of eyes read over the form of Order before finalizing it. Get it right the first time.
(b) Style of Cause & Writs of Seizure and Sale (See Appendix “A”)
If the purpose and intent of a claim or application is to obtain relief against a certain individual or entity, the moving party must identify the proper name of that individual or entity. Obtaining a judgment against “David Smith” who holds title to real property under the name “David Smith-Jones” will provide your client with little relief. In fact, a Sheriff will not enforce a Direction to Enforce Writ as against real property if the judgment debtor’s name is not identical to the name of the judgment debtor as registered on title of the subject property (ie: middle name). It is therefore important that counsel conduct a title search of their opponent prior to issuing a proceeding to ensure that any readily identifiable aliases are included in the style of cause (which in turn are included in any ensuing Writs of Seizure and Sale).
(c) Motions for productions
Motions of this nature are frequently moving targets. Unfortunately, it is customary for responding parties to deliver productions “piece meal” between the period of service of the Notice of Motion and the hearing of the motion such that the form of Order is constantly in flux. The guiding principle set out at the commencement of this paper nevertheless applies: ensure the Order achieves the intended result. Consider the following draft Order:
THIS COURT ORDERS that the Respondents shall produce the following documents to the Applicant (by when? Who’s cost?):
Copies of personal and business bank statements of ABC Corp and David Smith from 2017 to the present to the extent they are available for that entire period of time with account particulars redacted;
As opposed to:
Copies of all personal and business bank statements of ABC Corp and David Smith from 2017 to the present with respect to any and all accounts in which ABC Corp and David Smith have or had an interest during the aforeferenced time period, wherever geographically situate, redacting only any account numbers (hereinafter the “Statements”) to the extent they are available for the aforeferenced entire period of time. Should any Statements be unavailable, the Defendants shall deliver a brief affidavit deposing as to the steps taken to obtain the Statements supporting their conclusion they are unavailable.
V. The Order must be capable of being enforced
When drafting the form of Order, not only must it achieve the intended result, it must be sufficiently clear that it is capable of being enforced by way of an order of contempt (a quasi-criminal civil remedy). If there is any ambiguity in the Order then it is unlikely the court will grant any substantive relief should the opposing party fail to comply.
VI. Case in point: Achieving the intended result
Reference is made to Appendices “B” and “C”. In this example the moving party sought an Order lifting the stay of her husband’s bankruptcy to enable her to pursue her claim for equalization of net family property. The intent of the Order is clear; however, notwithstanding same it was incumbent on counsel to consider and identify any issues that may prevent achieving that intended result. The moving party inadvertently did not contemplate the legal effect of the bankrupt obtaining his discharge from bankruptcy on her ability to pursue her claim for equalization. As a result of the bankruptcy discharge, the moving party’s claim for equalization was extinguished such that the purpose and intention of the lift/stay Order was defeated. Had the moving party sought the following order in the first instance the moving party’s claim would have been preserved (and no subsequent motion required):
THIS COURT ORDERS nunc pro tunc that the Order of Master Jean sitting as the Registrar in Bankruptcy pronounced the 22nd day of September 2015 be varied to provide that Aneta Ratuszniak may assert her claim to Jan Ratuszniak RRSPs in specie notwithstanding the bankruptcy and subsequent discharge of the Bankrupt.
[Fortunately the moving party’s rights were ultimately preserved having obtained that Order nunc pro tunc; however there were of course no guarantees it would have been granted.]
Consider specifically what your client needs to achieve. Draft the form of Order first and ensure the Notice of Motion echoes the same relief. Turn your mind to whether there are any procedural, evidentiary or other legal issues that must be addressed to ensure the validity and enforceability of the Order. Have a second pair of eyes review it to avoid inadvertent spelling errors that may impact on the effect of the Order especially where it contains legal description(s).
As with everything in the practice of law, there are no substitutions for thorough and thoughtful preparation when it comes to defining and drafting the appropriate Order.
April 17, 2019
Sean N. Zeitz,