- A motion is an application to the court for an order on a specific issue, brought before or during trial.
- Summary Judgment Motions Summary judgment is the most consequential type of motion in civil litigation.
- The moving party delivers a motion record containing: 1.
A civil lawsuit is not just a single event — it is a process that unfolds over months or years, and at many points along the way one side may need something from the court before trial. That is what a motion is: a formal request, made to a judge or master, for a specific court order during the course of litigation.
Understanding how motions work — what they are for, how they are structured, and what they cost — is essential for anyone involved in Ontario civil litigation. Motions can resolve cases entirely, protect urgent rights, or bog a lawsuit down in expensive procedural fighting. The difference depends on strategy.
What Is a Motion?
A motion is an application to the court for an order on a specific issue, brought before or during trial. The party bringing the motion is the moving party; the other side is the responding party.
Motions are not mini-trials. A judge hears legal argument, reviews the record submitted by both sides, and makes a ruling. The record is filed in advance; the hearing itself is usually short — sometimes as little as 30 minutes for a simple procedural motion.
Types of Motions in Civil Litigation
Summary Judgment Motions
Summary judgment is the most consequential type of motion in civil litigation. The moving party asks the court to decide the case — or a specific issue — without a full trial, on the basis that there is no genuine issue requiring a trial.
A successful summary judgment motion ends the case (or narrows it significantly) without the time and cost of a trial. Courts in Ontario have broadened the tools available to judges on summary judgment motions, allowing them to weigh evidence, draw inferences, and make credibility findings in appropriate cases.
Summary judgment is appropriate when:
- The key facts are not genuinely in dispute
- The case turns on a question of law, not facts
- One side's case is so weak that no reasonable trier of fact could find for them
Interlocutory Injunctions
An interlocutory injunction is an urgent order requiring a party to do something — or stop doing something — while the lawsuit is ongoing. Examples include:
- Freezing assets pending trial (a Mareva injunction)
- Preventing the sale of property that is the subject of a dispute
- Requiring someone to continue performing a contract while the dispute is resolved
Injunctions require the moving party to show: a serious question to be tried, that they will suffer irreparable harm without the order, and that the balance of convenience favours granting it. Courts also usually require an undertaking as to damages (a promise to compensate the other side if the injunction turns out to have been wrongly granted).
Discovery Motions
When parties cannot agree on document disclosure or oral discovery questions, either side can bring a discovery motion to compel answers, production, or compliance with undertakings.
Pleadings Motions
A party may move to strike portions of the opposing party's pleadings on the basis that they disclose no cause of action, are scandalous or vexatious, or are otherwise improper. The test for striking at the pleadings stage is high — the court asks whether it is plain and obvious the pleading will fail.
Motions to Extend or Abridge Time
The Rules of Civil Procedure set deadlines for almost everything. Parties who miss a deadline or need more time can bring a motion for an extension. Courts consider the reason for the delay, the length of the delay, and prejudice to the other side.
Default Judgment Motions
If a defendant has been noted in default (they did not file a defence on time), the plaintiff can bring a motion for default judgment, asking the court to grant the relief claimed without a trial.
How Is a Motion Structured?
Every motion has a formal record. The moving party delivers a motion record containing:
- Notice of motion: what order is sought and on what grounds
- Affidavit(s): sworn evidence supporting the motion
- Exhibits: documents attached to the affidavit
- Factum (for longer motions): a written legal argument setting out the facts, law, and submissions
The responding party delivers their own record with responding affidavit(s) and factum. The moving party may deliver a reply.
On the hearing date, counsel make oral submissions. For longer motions, transcripts of cross-examinations on affidavits may also be part of the record.
Cross-Examinations on Affidavits
A party who receives an affidavit from the other side on a motion has the right to cross-examine the affiant (the person who swore the affidavit). This happens before the motion hearing. Cross-examinations on motions are like mini-discoveries — they let you test the evidence and potentially obtain admissions before the judge hears argument.
Costs of Motions
Motions are expensive. Every motion involves:
- Preparing the motion record
- Potentially cross-examining on affidavits
- Preparing and filing a factum
- Attending the hearing
- Potential follow-up on costs orders
The losing party on a motion typically pays costs to the winning party. Courts take into account the complexity of the motion, the time spent, and whether the motion was reasonable. Bringing unnecessary motions — or resisting reasonable ones — attracts adverse cost consequences.
Motions vs. Applications
A motion is brought within an existing action. An application is a separate type of proceeding, typically used where there is no factual dispute and the issue is primarily a question of law or the interpretation of a document. Applications proceed on affidavit evidence without a trial.
Frequently asked questions
How long does it take to get a motion heard?
In Toronto and most urban centres, scheduling a motion can take weeks to months depending on complexity and court availability. Urgent motions (e.g., injunctions) can be heard on very short notice. Plan ahead.
Can the judge decide a motion without a hearing?
Yes. For many simple or uncontested motions, the court may decide on the record without oral argument. This is called a "paper" or "in writing" motion and is faster and cheaper.
What if I lose a motion?
A motion order is not necessarily final. Depending on the type of order and the circumstances, it may be possible to appeal to a higher court, though this adds cost and delay. Not every motion loss is appealable — some procedural orders require leave (permission) to appeal.
Are motions required before trial?
No motion is universally required, but some motions — like summary judgment — are very commonly brought in commercial litigation. The decision whether to bring a motion depends on the specific facts and strategy of your case.
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