A Holiday Gift from the Bench to the Bar

December 29, 2020 Hull & Hull LLP Estate Litigation, Uncategorized Tags: , , , , , , 0 Comments

‘tis the holiday season – a time to drink egg nog (my favourite) and give and receive gifts.  What better time than to highlight a recent gift given by the Superior Court of Justice to all those barristers out there!  The gift, as you may be wondering, comes in the way of advice and assistance given to counsel by F.L. Myers J. in his Triage Endorsement in Paul v Veta.

Without going into the facts of the case, the applicant sought to bring an unopposed application for an order deleting a mortgage from title.  Having difficulty in getting the application heard, counsel advised the court that, “I have exhausted all of my efforts but have not been able to file this online. I am humbly asking for some direction on how to have my materials filed in the most expedient fashion so I can get this order approved”.  Justice Myers acknowledged that although it is not generally the role of the court to give advice to counsel, he nonetheless provided some assistance.

Taking into consideration the numerous Notices to the Profession resulting from the pandemic, Justice Myers had the following to say about the issuance of an application:

  • register for a One-key account
  • under Rule 4.05.2(6), submit the civil document to the portal, using your One-key account, wait 5 days to get an email, to tell you if your document was accepted
  • once the application is issued, Rules 38.06 and 39.01 require that the notice of application and all affidavits to be relied upon be served on all parties

As it relates to motions in writing, Justice Myers states, “Judges receive numerous motions in writing (or “basket motions” as they are commonly called). It does not take very long to read a properly prepared basket motion. It is far more difficult and time consuming for a judge to deal with a poorly prepared basket motion. Struggling to find proof of service, or proof that it truly is on consent of all parties, or proof of the facts required for the relief sought, takes time and effort. So, the tacit deal is that if counsel provide us with motions in writing that contain the necessary proof of facts and law, we are all too glad to sign them. It’s quicker, easier, and a happier outcome for all concerned. I know of no judge waiting around to incur the extra time, effort, and frustration to reject well-prepared basket motions”.

There are other great nuggets of wisdom contained in the Endorsement including the permissibility of hearsay evidence and the filing of draft orders.

I hope you like your gift – I am sure the court won’t mind if you decide to re-gift it 🙂

Noah Weisberg

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