The Distinction Between Bringing Motions and Commencing Proceedings - Hull on Estates #162
Listen to The Distinction Between Bringing Motions and Commencing Proceedings
This week on Hull on Estates Rick Bickhram and Chris Graham discuss some important distinctions between bringing motions and commencing proceedings in the estates context as opposed to general civil litigation. They look at this in the context of applications, motions and statements of claim.
If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.
Chris Graham: Hello and welcome to
Welcome to
Rick Bickhram: Hi and welcome to another episode of
Chris Graham: And I’m Chris Graham.
Rick Bickhram: If you want to be heard on
Chris Graham: Morning Rick. I’m doing just fine. How are you?
Rick Bickhram: I’m not doing bad. I had a great weekend. How about yours?
Chris Graham: Well as I was preparing for this podcast all weekend, I’d have to say it was the best weekend I’ve had in life. Now today we’re going to talk about some important distinctions between bringing motions and commencing proceedings in the estates context as opposed to general civil litigation.
Rick Bickhram: Well I’m going to dive into it and I’m going to look at applications. After looking at the Rules I’m impressed about some of the similarities with the estates, with applications being commenced in the estates context and applications being commenced in the civil context. Rule 38.06(3) dictates the service requirements for commencing an application. So after an application is issued at the appropriate Court, Rule, as I said, 38.06(3) states that the application is to be served at least 10 days before the hearing date returns to Court.
Chris Graham: Yeah, so you have 10 days to serve. And that’s the same as, I guess, the general rule so to speak in estates litigation. If you bring an application for an Order for Directions which is a prototypical step in almost every contentious matter, you have 10 days to serve. That’s Rule 75.06(2), requires 10 days to serve before the return date.
Rick Bickhram: Moving ahead, I’m looking at motions now and I’m looking at the general requirements again for service of motions. 37.07 again is specific to civil matters and the general requirement for service of a Notice of Motion is 4 days prior to the return of a hearing date.
Chris Graham: Which Rule number is that Rick?
Rick Bickhram: That’s Rule 37.07(6) Chris.
Chris Graham: Yeah, okay. So let’s recap. You commence properly by bringing your application and serving 10 days before the hearing date. You thought everything was great. You thought your lawsuit was on track. And then you brought a motion. You thought it was 4 days. Oops. Actually most motions are 10 days, the same way an application for directions is 10 days. Well a motion for directions is also 10 days. And since that’s the most common step, odds are the motion that you bring has to be served 10 days before the return date.
Rick Bickhram: And that’s within the estates context, right Chris?
Chris Graham: That’s right. And that’s Rule 75.06(2) again. Now if you jump over to so-called non-contentious matters under Rule 74, if you bring an application for assistance, that’s another very common step in most matters. Under Rule 74.15, well a lot of those can be brought in theory without notice, but some of those require notice. And where notice is required, what do you know? It’s 10 days.
Rick Bickhram: I’m going to presume that the more substantive orders are going to require notice, whereas the more procedural orders generally will be allowed to be brought if it’s a motion, the motion will be allowed to be brought without notice, is that correct?
Chris Graham: Exactly. If you read the types of orders you can get, well with the exception of 74.15(1)(i) which is an order for other matters, that’s a huge catch-all subparagraph that everybody dealing with estates litigation should read 5 or 6 times a day, all of the rest of them with the exception of subparagraph (e) are necessary steps in a lot of matters that could probably be cleared up among counsel without requiring an order. For instance, an order to accept or refuse an appointment as estate trustee with a Will. Well, you know, you either accept it or you refuse it. And if it’s not something that an opposing party is just willing to do to keep costs down, then you write your letters and you go ahead and you bring your application for an order. But you’re probably not going to have to do this ex parte. And why would you? You just write a letter first.
Rick Bickhram: Just to wrap that point up that Chris left off with. It seems to me that you’re permitted under the Rules to bring these sort of motions without notice but it appears that it would be likely that counsel would provide some sort of notice by way of sending an informal letter to counsel seeking their consent on the matter.
Chris Graham: Yeah, exactly. I mean, you don’t need to bring an application for an order for somebody to refuse an appointment as estate trustee when you can just write a letter asking them to accept or refuse. And you would only really bring the application if they didn’t respond or if their response was vague. Because you don’t want to draft materials and prepare Affidavits and all that stuff if a simple letter will suffice. And maybe you can get it on consent.
Rick Bickhram: Absolutely. And you would be pretty much adhering to the spirit of the new practice direction, which is to be more cost-effective, more efficient in our practices.
Chris Graham: Yeah. It’s really just common sense. And it does adhere to that practice direction for sure. Why don’t we move over to Statement of Claims.
Rick Bickhram: Okay, well I’m going to look at actions which are commenced by having a Statement of Claim issued and served. The time requirements for service of a Statement of Claim is basically a Statement of Claim has to be served within 6 months after it’s issued.
Chris Graham: Yeah we mostly do applications in estates. But, yeah, we also do actions. And it’s a completely different world from the 10 days, 10 days, 10 days in the application world.
Rick Bickhram: Absolutely. And it differs procedurally with respect to the hearing date because after a motion for directions or an application for directions, there’s a hearing date that’s set for the actual hearing for directions. Whereas in a Statement of Claim, normally an Affidavit of Documents. Sorry, let me take a step back. After the Statement of Claim, a Statement of Defence is normally served and filed. A Reply is permitted. And then we look at Affidavit of Documents.
Chris Graham: Yeah. So I mean most civil litigators are all over this stuff. I guess the closest analogy in pure estates analogy is bringing an application to pass your accounts as an estate trustee under Rule 74.18 where you file it with the Court and then you issue it on the beneficiaries. You serve them and then it goes from there.
Rick Bickhram: To summarize the major distinctions here. A Statement of Claim is a Statement of Claim.
Chris Graham: Yeah. You just follow the process in the rest of the Rules of Civil Procedure, which of course we read religiously. But I should note that if you bring an order for assistance or if you bring a motion for an order for directions within a claim proceeding, you still have to wait your 10 days. You’re not pushed over into the civil 4 days.
Rick Bickhram: And an application is an application.
Chris Graham: Yeah, that’s how it works.
Rick Bickhram: 10 days.
Chris Graham: 10 days. But any motion within that application is probably going to be 10 days as well.
I think that brings us to the end of this week’s discussion. Thanks for listening and thanks for joining me today, Rick.
Rick Bickhram: It was a pleasure Chris. I look forward to podcasting with you again soon.
Chris Graham: And we look forward to hearing from our listeners. So send us an e-mail at hull.lawyers@gmail.com and visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estate law. It evolves everyday. We hope that you enjoyed the show. I’m Chris Graham.
Rick Bickhram: And I’m Rick Bickhram. Until next week, so long.
This has been
To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.
Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.
