I. Overview:

One of the tools in a litigator’s arsenal is the ability to bring a motion. We all know that a vast majority of cases settle prior to trial. That can be attributed, in part, to the fact parties will likely have been through at least one motion where the results, be they substantive or costs based, often have the effect of re-directing the file towards a resolution (or in the post-Hryniak era, towards a dispositive summary judgment motion). Not only does a motion culminate with an order in one form or another, but it is also often accompanied by an endorsement that has consequences on the litigations often moving the file towards a global resolution.

What motion to bring at which point in the litigation and how are critical factors for consideration that often impact (i) the success of the motion and (ii) the overall litigation strategy. These are separate and distinct concepts: you may be unsuccessful on the motion while simultaneously succeeding at advancing your litigation strategy.

II. Understanding your client’s interests:

In order to understand your client’s interests, you must identify the strengths and weaknesses of their legal position, both with respect to the relief you contemplate seeking on the motion and with respect to the overall action. These are not distinctions without a difference. For example, a defendant asking the court for an order to compel a plaintiff to produce the correspondence it relied on to obtain an ex parte injunction referenced in its material, is much different than asking the court to set aside the injunction based on an irregularity in the plaintiff’s material when the facts are persuasive your client engaged in fraudulent conduct.

With regard to the former, your client has a strong legal position for production notwithstanding he may have engaged in improper conduct such as civil fraud. That type of conduct ought not to have any impact on your ability to persuade the court to grant the disclosure order. On the other hand, the fact the evidence prima facie establishes your client engaged in civil fraud which goes to the root of the action, will likely influence the court’s interpretation of the evidence and application of the law such that it is unlikely it will set aside the injunction based on an irregularity in the way it was obtained [see Business Development Bank of Canada v. Aventura II Properties Inc. 2016 ONSC 1545]. While you may have a strong argument that the consequences of obtaining an ex parte injunction without compliance with the technical requirements are to have it set aside, it must not be lost on you that the facts underpinning your client’s position do not militate in favour of granting that relief. This does not mean you should not canvass the option of moving to set aside the injunction; rather, you must identify the issue for your client and ensure it understands the risk/reward for pursuing such relief.

It is good form prior to bringing a motion to review the “lay of the land” with your client to ensure there have been no developments within the litigation or within your client’s personal knowledge that would impact the overall litigation strategy and possibly alter your initial assessment of the client’s interests. For example, consider a debtor/creditor action where your client is being sued by a lender. You ascertained that he has a strong defence and are prepared to recommend moving for summary judgment. Your client’s goal is to bring the case before a judge for the earliest possible determination of the case so as to minimize costs and to emerge from the litigation debt-free. You then learn from your client that he recently separated from his spouse and was served with a claim for equalization, spousal and child support. A development of this nature may require a re-focusing of your client’s interests and at a minimum should include a discussion of how your litigation strategy may no longer result in the client emerging debt-free as intended. It may be that the client instructs you to proceed as initially contemplated, or perhaps not. Whatever the ultimate decision is, your role as counsel is to understand and help identify your client’s interests on an ongoing basis throughout the course of the file.

III. Educate your client on the motion process:

It is incumbent on counsel to educate the client as to what to expect when bringing a motion. The areas for review ought to include though are not limited to:

(a) Why is the motion being brought? Provide risk/reward analysis;

(b) What relief are you seeking and why? [It is surprising how often the “why” is not thoroughly considered];

(c) Is there alternate relief you can seek, and why;

(d) What grounds will you rely upon to support the relief being sought;

(e) Do you have the evidence required? If not, can it be obtained? How? How fast? How much will it cost?;

(f) Are cross-examinations anticipated? If so, is your client comfortable with the process? What will it take to prepare the client? Do you anticipate the client will be a “good” witness?;

(g) How much will the motion cost?

(h) What happens if you are successful only in part?

(i) What happens if you are unsuccessful entirely [which should include a discussion and review of debtor/creditor law regarding post-judgment enforcement issues]; and

(j) The prospect for appeal by either party, the appeal route, the impact of an appeal including costs.

It is advisable to have the results of the foregoing queries put into a letter to the client (this, of course, applies to anything substantively discussed). Ideally, the letter should be sent a week or so prior to your preparation of the material with an invitation for the client to contact you to review anything if there are questions or concerns. It may be tempting to avoid drafting this type of letter when you feel confident you and the client are “on the same page”’; resist the temptation and “put it in writing”. If the motion does not generate the results as contemplated, it will be very helpful to be able to refer back to the letter as needed. So too will it be helpful if your client chooses to assess your account.

IV. Defining success:

As hereinbefore stated, you may be unsuccessful on the motion while simultaneously succeeding at advancing your litigation strategy. It is important for you and the client to define success. There may be an opportunity in the litigation where knowingly bringing a risky motion makes sense. The key here is to ensure your client understands and agrees that the potential upside justifies undertaking the risk.

By way of example, if you are acting for a well-off client who suspects the other side has a limited litigation budget or is under financial strain, there may be a tactical incentive to bring a motion early in the proceedings to not only obtaining substantive relief from the court, but to have the secondary effect of depleting your opponent’s resources. Motions involving the form of a Discovery Plan and/or the scope of productions are fairly time-consuming and costly. The risk for an unsuccessful motion of this nature is relatively low: usually limited to having to pay the reasonable partial indemnity costs of the other side. If you bring the motion and succeed, you get the relief sought and can expect a cost award. The unsuccessful party will not only have to pay your client’s partial indemnity fees, so too will they have to pay their own lawyer’s actual fees. If the motion is unsuccessful, you may still have succeeded at advancing your client’s “end game” by having depleted the other side’s financial reserves thereby making it more likely a settlement can be achieved. True, an unsuccessful motion often attracts cost consequences, however long gone are the days when cost awards fully indemnify the successful party. The old adage of having to “pay to play” applies.

Shrewd counsel will be aware that motions can be brought with the intention to delay proceedings. Consider the following: you act for the debtor who owes $100,000 to the bank. There is no legitimate defence. You are on the eve of a dispositive motion. You appreciate that judgment will likely be rendered against your client and know that the filing of a Writ of Seizure and Sale will likely trigger your client’s secured creditors to call their loans. You also know that your client is to receive $100,000 in trade receivables from its customer in 90 days and will be able to make the bank substantially whole. The bank, however, refuses to adjourn. Counsel may bring a motion which by its nature will necessitate an adjournment of the dispositive motion. Win or lose on this “collateral motion”, counsel will have succeeded at delaying judgment so that their client can receive its $100,000 and satisfy the bank without the expense and risk of having to proceed with the motion. Even if the collateral motion is denied, counsel will have succeeded by achieving the necessary delay.

While the foregoing example ultimately provides a “win-win” result as the bank gets paid and the debtor staves off judgment, there are circumstances where the strategy can be implemented to achieve a “win-lose”, such as where the delay enables a debtor to close a sale transaction of their real property prior to the creditor obtaining judgment and filing writs of execution. A win for the debtor indeed! Counsel should be mindful of the foregoing when responding to motions especially where timing and the relief requested are fraught with suspicion.

(v) Avoiding ill-conceived motions:

If you intend to bring a motion, care should be taken to ensure it is not ill-conceived. Examples of “ill-conceived” motions are:

(a) launching a motion without first addressing the concern or request with opposing counsel which would have avoided the need for the motion in the first place;

(b) bringing a motion for relief that depends on something happening that has yet to happen;

(c) seeking relief relying on the incorrect rule or jurisprudence or misinterpreting the correct jurisprudence;

(d) casting the motion as being for certain relief when in fact it is for something different;

(e) inaccurate or misleading grounds being articulated in the Notice of Motion;

(f) seeking relief that is not available to your client (such as seeking a Certificate of Pending Litigation in circumstances where it is plain and obvious there is no claim to an interest in land); and

(g) bringing a motion based on misleading or significantly erroneous facts.

(vi) Final thoughts:

Be mindful that your case is similar to an iceberg: two-thirds of it is submerged underwater. The judge only sees what is above the water line being the record before the court. Depending on which side of the motion you are on that may be a hindrance to your client’s ultimate goal. You may be subject to criticism where the court is not receptive to your motion. Part of being an advocate and a member of one of the noblest professions is being able to receive such critique with civility and grace knowing you are advancing the interests of your client within the four corners of the law.

To state what I trust is obvious, all motion and litigation strategy must be compliant with the Rules of Professional Conduct and the Rules of Civil Procedure.

April 3, 2018

Toronto, Ontario

Sean N. Zeitz,

B.A., LL.B. C.S. (Civil Litigation and Bankruptcy and Insolvency Law)