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What Does it Mean When My Personal Injury Lawyers Say They “Need to Bring a Motion”?

The litigation process can be complex and feel overwhelming, especially when you are already dealing with the physical, emotional, and financial challenges that come with serious personal injury. Our Oshawa law firm is committed to providing personalized support to accident victims throughout the litigation process. One of the ways we support our clients is by going to court to get orders before trial when needed, which is known as “bringing a motion.”

Person pressing a legal stamp on document
Photo by Stephen Goldberg

Let’s have a look at what it means when your personal injury lawyer says they need to bring a motion, and what it means when your lawyer says they need to respond to a motion brought by the defendant in your personal injury case.

What Is a Motion?

A motion can be brought at any stage in court proceedings by a party involved in the litigation. Essentially, a motion is a request that a judge or master of the court make an order dealing with an issue in the case. Motions are often called “preliminary motions” or “interlocutory motions” because they are brought before the trial to address an intermediate step in the case. Motions can often be heard quickly and can be an efficient way to move a case forward.

What Are Some Common Motions Brought in Personal Injury Cases?

Common types of motions that may be brought by the plaintiff’s lawyer in a personal injury case include:

  • Motion to extend the time to serve a Statement of Claim

  • Motion to amend a Statement of Claim

  • Motion to add a new party to the claim.

  • Motion to produce documents relevant to the case (to compel production of requested records)

  • Motion for default judgment if the defendant doesn’t respond to the claim.

  • Motion to conduct further examination for discovery.

The defendant and any other party in a personal injury case can also bring a motion. Common types of motions that may be brought by a defendant are similar to the ones set out above, e.g., a motion to extend the time to serve a Statement of Defence, a motion to amend a Statement of Defence, a motion to conduct further examination for discovery of the plaintiff, a motion to compel production of medical records or employment records. A defendant may also bring a motion for an order that the plaintiff undergo an Independent Medical Examination (a physical or mental examination by one or more health practitioners).

How Does a Lawyer Bring a Motion in A Personal Injury Case?

Preparation is the key to bringing a motion. To bring a motion, your lawyer will prepare a motion record that includes a Notice of Motion, sworn Affidavit(s) setting out the facts and evidence relied on to support the relief sought, any relevant examination transcripts, and any other material from the court file which will be necessary at the hearing of the motion.

The Notice of Motion must be served on all parties to the litigation and any other person who will be affected by the order sought, even if they aren’t a party to the action (for example, if the motion is to secure production of documents relevant to the case, the motion must be served on the person or company in possession of the records). An Affidavit of Service must then be sworn, which provides evidence that all proper parties/people have been served. The Notice of Motion and all supporting materials must then be filed with the court. All of these steps must be done by certain deadlines set out in Ontario’s Rules of Civil Procedure.

For some motions, a factum is also required. A factum contains written argument on legal issues with reference to relevant court rules, legislation, and case law that provide legal authority for the relief sought. A Book of Authorities is typically provided with a factum, so the judge or master can easily refer to the rules, statutes, and cases cited in support of your motion.

Closer to the date that the motion will be heard, your personal injury lawyer will take several steps, including filing a confirmation of motion to secure the hearing date, preparing a draft order reflecting the relief sought in the Notice of Motion, and preparing oral submissions.

What Happens on The Day the Motion Is Heard by The Court?

On the day the motion is heard by the judge or master, your lawyer will appear in court and make oral submissions on your behalf. These submissions can be relatively brief (for example, if the other party doesn’t oppose the relief sought) or quite lengthy, depending on the issues at stake. If it is a complex matter or strenuously opposed by the defendant, full legal arguments will be necessary, and the judge or master will likely have many questions for the lawyers.

Once oral submissions have been made, the judge or master hearing the motion will likely provide their decision on the spot. In some cases, their decision will be “reserved” (meaning it will be released at a later time, so the judge or master can fully review the evidence and legal arguments before making a decision).

In addition to granting or refusing the specific relief sought in the motion, the judge or master also decides the issue of costs. The usual practice is that the successful party on a motion asks for an order that their costs of the motion be paid by the unsuccessful party. The judge or master can order that the costs of the motion be paid or can defer the question of costs until the ultimate resolution of the matter.

Get Trusted Advice from Our Law Firm in Oshawa

Oshawa and Lindsay lawyers at Kelly Greenway Bruce are here to guide you through every stage of the litigation process. Our firm's primary objective is to provide clients with favorable results in a cost effective and efficient manner. If you have been injured as a result of someone’s fault or negligence, we welcome you to contact us today to schedule your free initial consultation.


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