RULE 38: APPLICATIONS — JURISDICTION AND PROCEDURE

(1) Rules 38.02 to 38.11 apply to all proceedings commenced by a notice of application under rule 14.05, subject to subrule (2). R.R.O. 1990, Reg. 194, r. 38.01 (1).

(2) Rules 38.02 and 38.09 do not apply to applications to the Divisional Court. R.R.O. 1990, Reg. 194, r. 38.01 (2).

An application shall be made to a judge. R.R.O. 1990, Reg. 194, r. 38.02.

Place of Commencement

(1) The applicant shall, in the notice of application, name the place of commencement in accordance with rule 13.1.01, and the application shall be heard there. O. Reg. 14/04, s. 20 (1).

[Note: On January 1, 2010, subrule (1) is revoked and the following substituted:

Place of Commencement

(1.1) Revoked: O. Reg. 14/04, s. 20 (2).

[Note: On January 1, 2010, rule 38.03 is amended by adding the following subrule:

Place of Hearing

Hearing date where no practice direction

(2) At any place where no practice direction concerning the scheduling of applications is in effect, an application may be set down for hearing on any day on which a judge is scheduled to hear applications. O. Reg. 770/92, s. 11.

Exception, lengthy hearing

(3) If a lawyer estimates that the hearing of the application will be more than two hours long, a hearing date shall be obtained from the registrar before the notice of application is served. O. Reg. 770/92, s. 11; O. Reg. 575/07, s. 3.

Urgent application

(3.1) An urgent application may be set down for hearing on any day on which a judge is scheduled to hear applications, even if a lawyer estimates that the hearing is likely to be more than two hours long. O. Reg. 770/92, s. 11; O. Reg. 575/07, s. 3.

Counter-Application

(4) If a notice of application has been served and the respondent wishes to make an application against the applicant, or against the applicant and another person, the respondent shall make the application at the same place and time to the same judge, unless the court orders otherwise. O. Reg. 14/04, s. 20 (3).

Every notice of application (Form 14E, 68A, 73A, 74.44 or 75.5) shall state,

(a) the precise relief sought;

(b) the grounds to be argued, including a reference to any statutory provision or rule to be relied on; and

(c) the documentary evidence to be used at the hearing of the application. R.R.O. 1990, Reg. 194, r. 38.04; O. Reg. 484/94, s. 8.

A notice of application shall be issued as provided by rule 14.07 before it is served. R.R.O. 1990, Reg. 194, r. 38.05.

Generally

(1) The notice of application shall be served on all parties and, where there is uncertainty whether anyone else should be served, the applicant may make a motion without notice to a judge for an order for directions. R.R.O. 1990, Reg. 194, r. 38.06 (1).

Where Notice Ought to Have Been Served

(2) Where it appears to the judge hearing the application that the notice of application ought to have been served on a person who has not been served, the judge may,

(a) dismiss the application or dismiss it only against the person who was not served;

(b) adjourn the application and direct that the notice of application be served on the person; or

(c) direct that any judgment made on the application be served on the person. R.R.O. 1990, Reg. 194, r. 38.06 (2).

Minimum Notice Period

(3) The notice of application shall be served at least ten days before the date of the hearing of the application, except where the notice is served outside Ontario, in which case it shall be served at least twenty days before the hearing date. R.R.O. 1990, Reg. 194, r. 38.06 (3).

Filing Proof of Service

(4) The notice of application shall be filed with proof of service at least four days before the hearing date in the court office where the application is to be heard. R.R.O. 1990, Reg. 194, r. 38.06 (4); O. Reg. 171/98, s. 15.

[Note: On January 1, 2010, subrule (4) is amended by striking out “four” and substituting “seven”. See: O. Reg. 438/08, ss. 39, 68 (1).]

(1) A respondent who has been served with a notice of application shall forthwith deliver a notice of appearance (Form 38A). R.R.O. 1990, Reg. 194, r. 38.07 (1).

(2) A respondent who has not delivered a notice of appearance is not entitled to,

(a) receive notice of any step in the application;

(b) receive any further document in the application, unless,

(i) the court orders otherwise, or

(ii) the document is an amended notice of application that changes the relief sought;

(c) file material, examine a witness or cross-examine on an affidavit on the application; or

(d) be heard at the hearing of the application, except with leave of the presiding judge. O. Reg. 351/94, s. 3.

(3) Despite subrule (2), a party who is served with a notice of application outside Ontario may make a motion under subrule 17.06 (1) before delivering a notice of appearance and is entitled to be served with material responding to the motion. O. Reg. 351/94, s. 3.

Exception, applications to pass accounts

(4) Subrules (1) and (2) do not apply to a notice of application to pass accounts under Rule 74. O. Reg. 484/94, s. 9.

(1) The applicant may abandon an application by delivering a notice of abandonment. R.R.O. 1990, Reg. 194, r. 38.08 (1).

(2) An applicant who fails to appear at the hearing shall be deemed to have abandoned the application unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 38.08 (2).

(3) Where an application is abandoned or is deemed to have been abandoned, a respondent on whom the notice of application was served is entitled to the costs of the application, unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 38.08 (3).

(4) Where a party to an application is under disability, the application may be abandoned by or against that party only with leave of a judge, on notice to,

(a) the Children’s Lawyer, unless,

(i) the Public Guardian and Trustee is litigation guardian of the party, or

(ii) a judge orders otherwise; and

(b) where the party under disability is a respondent, the litigation guardian. R.R.O. 1990, Reg. 194, r. 38.08 (4); O. Reg. 69/95, ss. 18-20.

Application Record and Factum

(1) The applicant shall,

(a) serve an application record, together with a factum consisting of a concise argument stating the facts and law relied on by the applicant, at least four days before the hearing, on every respondent who has served a notice of appearance; and

[Note: On January 1, 2010, clause (a) is amended by striking out “four” and substituting “seven”. See: O. Reg. 438/08, ss. 40 (1), 68 (1).]

(b) file the application record and factum, with proof of service, at least two days before the hearing, in the court office where the application is to be heard. R.R.O. 1990, Reg. 194, r. 38.09 (1); O. Reg. 171/98, s. 17 (1); O. Reg. 206/02, s. 9 (1).

[Note: On January 1, 2010, clause (b) is amended by striking out “two” and substituting “seven”. See: O. Reg. 438/08, ss. 40 (2), 68 (1).]

(2) The applicant’s application record shall contain, in consecutively numbered pages arranged in the following order,

(a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter;

(b) a copy of the notice of application;

(c) a copy of all affidavits and other material served by any party for use on the application;

(d) a list of all relevant transcripts of evidence in chronological order, but not necessarily the transcripts themselves; and

(e) a copy of any other material in the court file that is necessary for the hearing of the application. R.R.O. 1990, Reg. 194, r. 38.09 (2).

Respondent’s Application Record and Factum

(3) The respondent shall serve on every other party, at least two days before the hearing, a factum consisting of a concise argument stating the facts and law relied on by the respondent. O. Reg. 171/98, s. 17 (2); O. Reg. 206/02, s. 9 (2); O. Reg. 14/04, s. 21.

[Note: On January 1, 2010, subrule (3) is amended by striking out “two” and substituting “four”. See: O. Reg. 438/08, ss. 40 (3), 68 (1).]

(3.1) If of the opinion that the application record is incomplete, the respondent may serve on every other party, at least two days before the hearing, a respondent’s application record containing, in consecutively numbered pages arranged in the following order,

[Note: On January 1, 2010, subrule (3.1) is amended by striking out “two” in the portion before clause (a) and substituting “four”. See: O. Reg. 438/08, ss. 40 (4), 68 (1).]

(a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter; and

(b) a copy of any material to be used by the respondent on the application and not included in the applicant’s application record. O. Reg. 171/98, s. 17 (2).

(3.2) The respondent’s factum, and the respondent’s application record, if any, shall be filed with proof of service in the court office where the application is to be heard, at least two days before the hearing. O. Reg. 171/98, s. 17 (2).

[Note: On January 1, 2010, subrule (3.2) is amended by striking out “two” and substituting “four”. See: O. Reg. 438/08, ss. 40 (5), 68 (1).]

Dispensing with Record and Factum

(4) A judge, before or at the hearing of the application, may dispense with compliance with this rule in whole or in part. R.R.O. 1990, Reg. 194, r. 38.09 (4).

Material May be Filed as Part of Record

(5) Any material served by a party for use on an application may be filed, together with proof of service, as part of the party’s application record and need not be filed separately if the record is filed within the time prescribed for filing the notice or other material. R.R.O. 1990, Reg. 194, r. 38.09 (5).

Transcript of Evidence

(6) A party who intends to refer to a transcript of evidence at the hearing of an application shall file a copy of the transcript as provided by rule 34.18. R.R.O. 1990, Reg. 194, r. 38.09 (6).

Exceptions, applications in estate matters

(7) Subrules (1) to (6) do not apply to applications under Rule 74. O. Reg. 484/94, s. 10.

(8) Subrules (1) to (6) apply to applications under Rule 75, but neither the applicant nor the respondent is required to serve a factum. O. Reg. 484/94, s. 10.

Confirmation of Application

(1) A party who makes an application on notice to another party shall,

(a) confer or attempt to confer with the other party;

(b) not later than 2 p.m. two days before the hearing date, give the registrar a confirmation of application (Form 38B) by,

[Note: On January 1, 2010, clause (b) is amended by striking out “two” in the portion before subclause (i) and substituting “three”. See: O. Reg. 438/08, ss. 41, 68 (1).]

(i) sending it by fax, or by e-mail if available in the court office, or

(ii) leaving it at the court office; and

(c) send a copy of the confirmation of application to the other party by fax or e-mail. O. Reg. 14/04, s. 22.

Effect of Failure to Confirm

(2) If no confirmation is given, the application shall not be heard, except by order of the court. O. Reg. 14/04, s. 22.

Duty to Update

(3) A party who has given a confirmation of application and later determines that the confirmation is no longer correct shall immediately,

(a) give the registrar a corrected confirmation of application (Form 38B), by,

(i) sending it by fax, or by e-mail if available in the court office, or

(ii) leaving it at the court office; and

(b) send a copy of the corrected confirmation of application to the other party by fax or e-mail. O. Reg. 14/04, s. 22.

(1) On the hearing of an application the presiding judge may,

(a) grant the relief sought or dismiss or adjourn the application, in whole or in part and with or without terms; or

(b) order that the whole application or any issue proceed to trial and give such directions as are just. R.R.O. 1990, Reg. 194, r. 38.10 (1).

(2) Where a trial of the whole application is directed, the proceeding shall thereafter be treated as an action, subject to the directions in the order directing the trial. R.R.O. 1990, Reg. 194, r. 38.10 (2).

(3) Where a trial of an issue in the application is directed, the order directing the trial may provide that the proceeding be treated as an action in respect of the issue to be tried, subject to any directions in the order, and shall provide that the application be adjourned to be disposed of by the trial judge. R.R.O. 1990, Reg. 194, r. 38.10 (3).

Exception, applications in estate matters

(4) Clause (1) (b) and subrules (2) and (3) do not apply to applications under Rules 74 and 75. O. Reg. 484/94, s. 11.

(1) A party or other person who is affected by a judgment on an application made without notice or who fails to appear at the hearing of an application through accident, mistake or insufficient notice may move to set aside or vary the judgment, by a notice of motion that is served forthwith after the judgment comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion. R.R.O. 1990, Reg. 194, r. 38.11 (1); O. Reg. 132/04, s. 10.

(2) A motion under subrule (1) may be made,

(a) at any place, to the judge who granted the judgment;

(b) at a place determined in accordance with rule 37.03 (place of hearing of motions), to any other judge;

(c) to the Divisional Court, in the case of a judgment of that court. R.R.O. 1990, Reg. 194, r. 38.11 (2).

(3) On a motion under subrule (1), the judgment may be set aside or varied on such terms as are just. R.R.O. 1990, Reg. 194, r. 38.11 (3).