In Canadian Thermo Windows Inc. v. Seangio, 2021 ONSC 6555, Justice Myers addresses the issue of procedure for starting a motion. In Canadian Thermo, the plaintiffs sued the defendants for defamation. The defendants sought the dismissal of the claim, under the Anti-SLAPP provisions of section 137.1 of the Courts of Justice Act.
The defendants served a notice of motion for a long motion. The notice of motion did not indicate a date for a hearing. This was in contravention of subsection 137.2(3) of the Courts of Justice Act. Subsection 137.2(3) states that for an anti-SLAPP motion, the moving party shall obtain a date for the motion before serving the notice of motion.
Once a motion is made under section 137.1 of the Courts of Justice Act, no further steps can be taken in the proceeding. So the question is: can a motion be “made” without providing a date in the notice of motion?
- Under subrule 37.05(2) of the Rules of Civil Procedure, “a long motion date is obtained from the registrar. Then a notice of motion is served. These are unilateral acts available to the moving party. Common courtesy suggests that there be some consultation between counsel/parties, but the formal rules do not. It is important to recognize therefore that in the ordinary course a motion can be “made” under the Rules by unilateral steps by the moving party” (para 64).
- In Toronto, long motions do not follow the process set out above. In Toronto, before the registrar provides the date, a judge hears the parties in Civil Practice Court. Civil Practice Court handles booking of long motions, among other items. The goal is to provide some form of case management.
The plaintiffs argued that the Courts of Justice Act ruled the day. It trumped the Rules of Civil Procedure and Practice Directions. The defendants could not be considered to have made their motion when they served a notice of motion without a hearing date. Therefore, the plaintiffs were entitled to take further steps in the proceeding.
Justice Myers considered whether a motion can be “made” in Toronto when: (a) the notice of motion is served after a date is obtained or (b) by taking the last step that is unilaterally available to the moving party to commence the motion process. In Toronto, that is the delivery of the Requisition to Attend Civil Practice Court.
Justice Myers held that the motion was made when the moving party completed their Requisition to Attend Civil Practice Court.
At para 78, Justice Myers writes that “the motion must be considered made when the moving defendant has done all that it can do unilaterally to deliver the formal documents to commence the motion process under the Rules and any applicable Practice Direction, if any”.
Justice Myers explains at para 74 that “The whole point of s. 137.1 is to prevent a plaintiff from inflicting substantial costs on defendants in order to chill their participation in expressions on matter of public interest. Without the stay under s. 137.1 (5), the full panoply of expensive procedural steps under the Rules of Civil Procedure would remain open to a plaintiff who knows that an anti-SLAPP motion is being scheduled in Civil Practice Court. An interpretation allowing that outcome risks frustrating the intention of s. 137.1.”
The Courts of Justice Act provision does not trump a determination of when a motion is made under the Rules. It is the intention of the Legislature, and consistent with the purposes of the anti-SLAPP provisions, that a motion be considered “made” when the moving defendant takes the last step unilaterally available for it to do so under the applicable Rules and practice directions (paras 79-81).