Terminology in Civil Proceedings - Hull on Estates #186
Listen to: Terminology in Civil Proceedings - Hull on Estates #186
This week on Hull on Estates, Paul Trudelle and Christopher Graham discuss some of the words and terminology commonly used in civil proceedings.
If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.
Paul E. Trudelle - Click here for more information on Paul Trudelle.
Christopher M.B. Graham - Click here for more information on Chris Graham.
Chris Graham: Hello and welcome to
Welcome to
Paul Trudelle: Hi, I’m Paul Trudelle.
Chris Graham: And I’m Chris Graham.
Paul Trudelle: And we thank you for listening to us this week on this episode. And thank you, Chris, for stepping in and filling for our colleague who’s down and out and suffering from what may be H1N1, or so we’re told or so we suspect. So we wish him well and hope that he’s back with us soon and over his aches and pains, and doesn’t spread it to anyone else as well.
Chris Graham: Thanks for staying home.
Paul Trudelle: Yes. We thought we would talk this week about the terminology that’s found in the rules and some of the basic words and their meaning in civil proceeding because some of the terminology is foreign and it’s used in ways that it’s not normally used in common parlayance so we thought we’d spend a bit of time going through some of the concepts and terminology in the rules and what that means.
Perhaps we’ll start out by what gets us into Court and what get’s us there is a proceeding. And what is a proceeding, Chris?
Chris Graham: Well a proceeding under Rule 1.03 of the Rules of Civil Procedure is defined as an action or an application.
Paul Trudelle: So those are two very distinct concepts, or two different routs that you can take to get a matter before the Court. One is the application, and one is the action. The action is, I guess, what we would refer to as the classic lawsuit between parties where you have a plaintiff and a defendant. There’s a Statement of Claim that would start the matter. There’s a Statement of Defence. There’s counterclaims, third party claims. But that’s the pleadings that get that matter before the Court and the Court ultimately hears the evidence of the parties and makes a determination.
Now that’s contrasted with the other proceeding which is the application.
Chris Graham: Yeah. And in an application, you have an applicant and you have a respondent, as opposed to someone bringing a Statement of Claim with a defendant. And I guess the biggest difference is that you don’t get oral testimony, so you don’t have witnesses in your typical application proceeding.
Paul Trudelle: Right. So what the Court hears and what the Court relies upon or uses as evidence for making a determination is just the paper record that’s put before the Court. So that would be the Notice of Application, that’s the originating proceeding that we’ll talk about in a second; the Affidavits that the parties file and transcripts of any cross-examinations on those Affidavits. Now it’s possible for there to be and the Courts can allow for there to be cross-examination in Court, but that’s quite rarely done.
Chris Graham: Yeah. In an application, the beauty of an application is that typically you don’t have so many facts in dispute or you don’t have credibility issues. You bring your evidence. Of course, any evidence put before a Court has to be by way of…it has to be sworn, which means an Affidavit. And I bring the application. My client swears an Affidavit. Paul, defending or responding more correctly, gets to cross-examine on the record, any witness whose Affidavit I put before the Court. But in most cases, there isn’t actually oral testimony in front of a judge, so the hearing is cheaper, it’s faster. I won’t say it’s a more simplified process.
Paul Trudelle: No, not always.
Chris Graham: But it does have…not always but it does have fewer administrative steps.
Paul Trudelle: Right. And you talked about facts in dispute. The rules set out what matters can be brought by way of an application. And that’s Rule 14.05 and there’s a shopping list of matters that can be brought by way of an application, the last one being any matter where it is unlikely that there’ll be any material facts in dispute. So if your matter is one where you’re just acting for the direction of the Court or a determination of rights that do not rely on facts that are going to be in dispute and require cross-examination, that can be brought by way of an application.
The other items in 14.05 might be worth referring to because it sets out where you can bring an application. And many of them are pertinent to us estate practitioners. If you’re asking for the opinion and advice and direction of the Court affecting the rights of persons with respect to the administration of an estate, a deceased person or in execution of the trust, you can bring applications. An Order directing executors to do something or not do something, removal or replacement of executors, determination of rights depending on the interpretation of a Will, those are matters…there’s other matters as well…but those are particular estate matters that allow for the application to be brought.
Rule 75 with respect to contentious proceedings also allows for applications to be brought with respect to directions for bringing any matter before the Court. So in the estates context, we see a lot of applications, more so than actions.
Chris Graham: Yeah we do. Just given the complex nature of the legal relationships and obligations that are involved in estate litigation, an application is proceeding is usually just a superior way of resolving the dispute.
Paul Trudelle: Right.
Chris Graham: Although a lot of Will challenges would end up going by way of action if they went the distance, given credibility issues that are usually involved.
Paul Trudelle: Right. And that’s one of the outlet passes, to coin a phrase, that is used around here. One of the things the Court can do on an application is direct a trial of an issue. And that’s something we see often where there’s a Will challenge. The Order Giving Directions is made on the initial application, but the direction is that the matter proceed by way of a trial of an issue, so that the Court can actually receive viva voce evidence and make a determination based on the testimony of the parties.
Chris Graham: Yeah and that…it ends up working out quite well in those types of cases where you start by way of application and you can rely on a lot of the provisions that apply to applications, administrative provisions that I guess we don’t have time to go into today. But they allow you to structure the proceeding in an efficient way, do some preliminary evidence gathering. Maybe even take a little of the hot air and the emotion out of the litigation and then eventually down the line it gets converted to an action. But you’ve already used the mechanisms to knock off a lot of issues that could be dealt with, could have been dealt with earlier.
Paul Trudelle: Right. And I agree with that. And I think that we’ve talked about Orders Giving Directions in some prior podcasts. Those are Orders that are made on the initial application. And it allows the parties to customize the procedure to best fit with…fit into the matter that they’re bringing before the Court.
So we know about the two ways to get a matter before the Court now. Those are the actions or applications. The rules refer to originating processes and what is an original process? Initially I guess, an originating process is defined as any document or Court-issued document that commences a proceeding, that would include a Statement of Claim or Notice of Application. In the context of estate matters, it’s also important to note that an application for a Certificate of Appointment is also an originating process that starts a legal proceeding.
Chris Graham: Yeah. One point here that’s worth noting is that if you bring a motion for directions within an application for a Certificate of Appointment, that motion for directions is not an originating process, though if you bring an application for directions as a separate proceeding, but it is related to the application for a Certificate of Appointment, you know, and it has a separate Court file number and all the rest of it, the distinction may become relevant because you have not actually commenced a separate proceeding, though many lawyers would simply bring an application. Not that I’m saying that’s the right way to do it but the distinction is…
Paul Trudelle: Yeah, there is a distinction in Rule 75.06 which allows for an application or motion for directions, addresses both of those. You can bring the application for directions or move for directions in another proceeding. So if there already has been an application for a Certificate of Appointment, the better route may be to bring the motion in that proceeding. But if no application is made, then there has been no originating process. You’ll need to commence a fresh application for directions.
We touched a bit upon a motion. Now, how would a motion be distinguished from an originating process or a proceeding like an application or an action?
Chris Graham: Yeah, a motion is not a separate proceeding. A motion is a litigation step, a mini-trial that you bring within an application proceeding or within a claim proceeding, so within a lawsuit or within an application. And typically, you’ll bring the motion for some type of interim relief or some type of Order that will facilitate the administration of the proceeding itself. You may bring a motion to force the sale of a property but the Court won’t decide who gets the money, so to speak. So that would be a very common motion to be brought.
Paul Trudelle: Right, so you can get that type of interlocutory relief that assists the parties or protects the interests of one or more of the parties as the action proceeds. Alternatively, I guess though, the motion could finally determine the matter, if it’s something like a motion for summary judgment. So you can bring a motion that finally disposes of the proceeding but…
Chris Graham: Or in practical terms, you may get a motion that actually, for all intents and purposes, ends the litigation but the application hasn’t been determined yet.
Paul Trudelle: Right.
Chris Graham: It may become moot, depending. There are motions out there that could do that.
Paul Trudelle: Yup.
Chris Graham: And sometimes it’s a smart way to force the determination of litigation if you can come up with a motion that would accomplish that.
Paul Trudelle: I know in many cases, a motion for security for costs requiring that the other side put some money into Court to secure your costs, has the effect of stopping a lawsuit in its tracks, depending on the depth of the pockets on the other side.
Just before we…well I guess we’ll maybe wrap up at this point because we’ve touched on a number of the terms and terminology relating to the general principles or starting a lawsuit in the Courts in
So thank you, Christopher, for your help today.
Chris Graham: Thank you, Paul.
Paul Trudelle: And we should thank our listeners for listening and invite them to give us some feedback.
Chris Graham: It was a pleasure, Paul. I look forward to podcasting with you soon and we look forward to hearing from our listeners. You can send us an e-mail at hull.lawyers@gmail.com, that’s h-u-l-l dot lawyers. Be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practise of estate law. We hope that you enjoyed the show. I’m Chris Graham.
Paul Trudelle: And I’m Paul Trudelle, thank you.
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.
