Remedies Fast Forward

Applications

Trials can take years to complete and can be a prohibitively expensive means to dispute resolution. There is therefore great incentive for a litigant to avoid the complications, delays and high costs associated with trials and a corresponding pressure on the solicitor to find and provide results-based alternatives for the resolution of disputes outside of the traditional trial process. Proceeding by way of application is one option available to the litigant where it is inappropriate to forgo the litigation process entirely in favour of alternative dispute resolution.

Proceeding by way of application can yield effective results expeditiously at a much lower cost than a full trial. The question becomes whether the dispute in question can be properly cast within the borders of the application’s domain. This paper will discuss the process of bringing an application and review the situations where an application may be an effective and efficient route to bringing a dispute to a close.

Nature and Advantages of the Application Process

Applications are governed by Rule 14.05. Where a dispute between parties falls within one of the sub-headings under that rule, the issue may be capable of being adequately disposed by a non-trial procedure on the basis of affidavits, cross-examinations and documentary evidence. The Ontario Court of Appeal gives the following nutshell comparison of applications to actions:

If the claim is to be proceeded with as an action it will involve the following stages: the exchange of pleadings; the production of documents and examinations for discovery; and a trial. If it is to be proceeded with as an application (and the trial of an issue or issues is not directed) it would typically involve: the issue and service of a notice of application with supporting affidavit material; possibly the delivery of affidavit material by the respondent and crossexaminations by both sides of the deponents of the affidavits; and the hearing of the application. Generally, the application route is less expensive and more expeditious than the action route. If, however, because material facts are in dispute, an issue is directed to be tried in an application, there is not likely to be any difference between it and an action with respect to expense or speed.¹

Applications are heard by judges. Structurally, an Application resembles a motion although it sees the final determination of a matter. This may be a significant point. Where a matter could be heard as a motion within the context of an action, it may also qualify as the proper subject of an Application. In the latter event, an appeal would like as of right to the Court of Appeal. If the matter is heard by way of interlocutory motion, any appeal may require leave.

Applications are summary by nature. Accordingly, neither summary judgment under Rule 20 nor the determination of a point of law under Rule 21 is available pursuits in an application. A respondent may still take the position that, as a matter of law, the applicant is not entitled to the relief that it seeks, or that the Notice of Application discloses no reasonable cause of action. In such cases, the respondent can pose those arguments on the hearing of the application rather than on a preliminary motion as in an action.

Applications do not involve pleadings, documentary discovery or examination for discovery. By design, the process is much faster and more efficient than a full trial. Applications move a great deal more rapidly than actions and an entire proceeding can be disposed of, with hearing and decision, in a matter of months as opposed to a matter of years. A corollary by the simpler nature of an application is that they are procedurally less complicated than an action. Fewer opportunities are afforded to opposing counsel to cause confusion, delay, or to increase costs.

The cost of an application also makes it an attractive alternative. As the process contains no affidavit of documents, productions nor any rights of discovery, costs are kept to a minimum. There is a considerable advantage to Applicants as they can obtain the result they seek without the financial strain that accompanies actions.

Procedure

Rule 38 dictates the procedure to be followed in an application. In the place of a Statement of Claim, the applicant is to file a Notice of Application which must be detailed and informative setting out:

• the precise relief sought;
• the grounds to be argued, including a reference to any statutory provision or rule to be relied on; and
• the documentary evidence to be used at the hearing of the application (rule 38.04)

Notice of Application

At least ten days before the hearing date the Applicant must serve the Notice of Application on the respondent along with any supporting affidavits (Rule 38.06). Obviously ten days notice gives little time for a respondent to retain counsel, prepare responding evidence and cross-examine any opposing affiants. Accordingly, counsel for the applicant is well advised to give a respondent weeks or months of notice to avoid the respondent’s inevitable request for an adjournment. As would be expected, with the exception of special circumstances, the court will usually grant such requests for adjournment.

On a practical note, booking an appointment for the hearing of an Application requires that the appointment be obtained months in advance. The prudent counsel will ensure that materials are served well in advance of the return date of the Application in order to minimize the chance for delay.

As the Notice of Application is an originating process, service must be personal and on all parties. Where there is uncertainty whether anyone else should be served, the applicant may make a motion to a judge for an order for directions with respect to service (Rule 38.06(1)).

Where service is doubtful, or difficult to be effected properly service may be dispensed with.² Alternatively, a request can be made in the Notice of Application for an Order validating service, if proper personal service cannot be affected. Where in the interest of justice, service may be dispensed with, such as the case where the relief sought is urgently needed. Where a judge thinks that service should have been affected on a person that was not served, that judge may:

• dismiss the application entirely or only as against the person who has not been served;
• adjourn the application and direct that notice of it to be served on the person; or
• direct that any judgment made on the application be served on the person (rule 38.06(2).

Once served with a Notice of Application, a respondent must deliver a Notice of Appearance which entitles that respondent to receive further notice of documents, to file materials, to examine or cross-examine witnesses or to be heard at the hearing of the application (38.07(2)). Affidavits in opposition or reply must be served at least two days before the hearing (Rule 39.01(3)). Practically speaking, this rule makes scheduling Applications difficult. An Application served weeks or months in advance may be delayed because of a late filed responding affidavit that may require further evidence or cross examination. In order to avoid this, counsel might want to consider a motion before the date of the Application to request the Court to impose a timetable. On the Commercial List (a subject beyond the scope of this paper), a timetable can be achieved by booking a 9:30 scheduling appointment and presenting the Court with a copy of the Notice of Application. Inevitably, a judge of the Commercial List will fix a timetable.

Evidence and Materials

Any party may examine a witness before the hearing for the purpose of having a transcript available for use at the hearing (Rule 39.03). Cross-examinations of affiants can proceed once the examining party has served all of the affidavits on which he/she wishes to rely (Rule 39.03). A witness may be cross-examined by the examining party and any other party and then re-examined by the examining party on matters raised by the other parties. Markedly different from the practice at a trial, the re-examination may also take the form of a cross-examination (Rules 39.03(1) and (2)).

Although very uncommon, with leave of the judge, a person may be examined at the hearing of an application in the same manner as would occur at trial (Rule 39.03(4) and (5)). It is rare for leave to be granted in this circumstance.

Rule 38.09 governs the material for use on application and Rule 39 informs that there are three types of evidence for use on application:

• affidavit;
• transcripts of cross-examination on affidavit; and,
• transcripts of examination of witnesses

The applicant and respondent must each deliver an Application Record as well as a factum unless such requirement has been dispensed with by a judge (38.09(4)). An application record must contain:

i. a table of contents describing each document;
ii. a copy of the Notice of Application;
iii. a copy of all affidavits and other material served by any party;
iv. a list of all relevant transcpirts of evidence; and,
v. a copy of any other material in the court file required for the hearing of the application

Rule 38.03(4) is entitled “Counter Applications”. There is confusion as to whether this permits the issuance of a formal Notice of Counter Application. Recent case law suggests that the prudent course of action is to issue a separate Notice of Application, and that it be treated as the Counter Application. The second Application will have a separate court fie number and the original applicant will be the respondent.³

Disposition

A judge may grant the relief sought or dismiss or adjourn the application, in whole or in part, with or without terms. (Rule 38.10(1)(a)). The judge, in his/her discretion may also decide that the matter in issue should not have properly been brought as an application and order that the application in its entirety, or a discrete issue therein proceed to trial (Rule 38.10(2) and (3)).

Trials are ordered where there is a serious conflict in the evidence and the credibility of witnesses must be assessed or matters of fact must be determined. This is discussed in greater detail below.

When can Proceedings Be Commenced by way of Application?

The Rules provide that all proceedings be commenced by way of action except in limited circumstances where a statute or the Rules permit the commencement of a proceeding by way of application. Proceedings brought by way of application are extremely important in certain areas of litigation such as trusts, estates, judicial review, administrative boards and tribunals but we will see that there are several other types of disputes which lend themselves to the use of applications. For example, disputes arising under the Canadian Charter of Rights and Freedoms may proceed by way of application as it has been determined important that persons who allege that their charter rights have been infringed should have the opportunity of having their legal position determined expeditiously.⁴

Many statutes provide for direct access to the court for a dispute which may arise within the context of that statute. The following are some examples of statutes which provide for the commencement of a proceeding by way of application:

· Conveyancing and Law ofc Property Act;

• Evidence Act;
• Land Titles Act;
• Mortgages Act;
• Tenant Protection Act;
• Vendors and Purchasers Act;
• Ontario Business Corporations Act;
• Canada Business Corporations Act;
• Securities Act; and
• Bankruptcy and Insolvency Act.

An application may also be commenced in the place of an action when such a procedure is specifically authorized by the Rules. The Rules authorize proceeding by way of application for:

1. The partition or sale of land under the Partition Act (Rule 66.01);
2. Approval of the sale, mortgage, lease or other disposition or property of a minor (Rule 67.01);
3. Approval of a settlement of a claim involving a person under a disability reached before a proceeding is commenced in respect of the claim (Rule 7.08(3));
4. Judicial review under the Judicial Review Procedure Act (Rule 68.01);
5. Variation of a final order for corollary relief (Rule 69.24(1));
6. The opinion, advice or direction of the court on a question affecting the rights of the person in respect of the administration of the estate of a deceased person or the execution of a trust (Rule 65.01 and 14.05(3)(a))
7. An order directing executors, administrators or trustees to do or abstain from doing any particular act in respect of an estate or trust for which they are responsible (Rule 14.05(3)(b));
8. The removal or replacement of one or more executors, administrators or trustees, or the fixing of their compensation (Rule 14.05(3)(c));
9. The determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in counsel, regulation or municipal by-law or resolution (Rule 14.05(3)(d));
10. The declaration of an interest in or charge on land, including the nature and extent of the interest or charge with the boundaries of the land, or the settling of the priority of interests or charges (Rule 14.05(3)(e));
11. The approval of an arrangement or compromise or the approval of a purchase, sale, mortgage, lease or variation of trust (Rule 14.05(3)(f));
12. An injunction, mandatory order or declaration, or the appointment of a receiver, or other consequential relief when ancillary to relief claimed in a proceeding properly commenced by a notice of application (Rule 14.05(3)(g)); or
13. A remedy under the Canadian Charter of Rights and Freedoms (Rule 14.05(3)(g.1))

In essence, applications are permitted under an authorizing statute, the rules or as a result of the nature of the relief claimed. Additionally, there are certain disputes that lend themselves to resolution by the more efficient route of an application. There is case law to suggest that under certain circumstances it is inappropriate to commence proceedings by way of action instead of application and that doing so may constitute an abuse of process warranting a stay.⁵ In the 1951 case of Hollinger Bus Lines Limited v. Ontario Labour Relations Board, referenced as recently at 2007, Spence J. stated:

I have therefore come to the conclusion that the relief claimed by the respondent, in so far as its request for an injunction is concerned, may be asserted in an application for certiorari and prohibition and that an alternative method of asserting that right by the issuance of a writ does not exist. Moreover, I am convinced that the initiation of the slower and less summary method of the trial of an action, with its possibly very serious consequences in the administration of the labour relations in this and other industries, does, under the circumstances, constitute an abuse of the process of the Court which the Court should prevent.⁶

Applicants Pursuant to rule 14.05(3)(h)

Applications provide an expeditious route to the disposition of a matter with a less burdensome strain on both client and institutional resources. In addition to the above instances where Applications are considered appropriate, the Rules provide for the use of applications where it is unlikely that any material facts will be in dispute. The parameters of this catch-all clause are sufficiently broad to allow the legal tactician to use it to his/her advantage.

Rule 14.05 provides:

(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is…

(h) in respect of any matter where it is unlikely that there will be any material facts in dispute.

Where a dispute cannot fit into one of the above enumerated categories, Rule 14.05(3)(h) may be broad enough to accommodate a litigant looking for the advantages offered by the application process. As Ducharme J. noted:

While Rule 14.05(3)(h) was not expressly pleaded in the Notice of Application, it did include the usual basket pleading, “such further and other grounds as counsel may advise and this Honourable Court may accept.” Moreover, I would think that any time counsel wishes to raise a jurisdictional objection to an application relating to the scope of Rule 14.05(3) they would be alive to the possibility that the moving party might seek to rely on the broad provisions of Rule 14.05(3)(h). Therefore in the circumstances of this case, if I am wrong about the propriety of proceeding under Rule 14.05(3)(b), I would hear the matter under Rule 14.05(3)(h) in any event.⁷

It is note-worthy that while an application can be brought where there are not materialfacts in dispute, this restriction does not necessarily extend to the other situations where applications can be brought as enumerated in the Rules. This is clarified by Steele J. McKay Estate v. Love:⁸

On the jurisdictional issue, counsel for Kenneth McKay argued that the power given under all of the paragraphs in rule 14.05(3) should not be exercised where there were material facts in dispute. In my opinion, that would impose para. (h) as a condition to hear any matter under the preceding paragraphs. This would be clearly contrary to the disjunctive wording of subs. (3). I believe that the court has power to hear an application under paras. (a) to (g) inclusive, even if there are material facts in dispute. This does not mean that in an appropriate case the court may decide to direct the trial of an issue, or otherwise deal with the application.

As there are cases were it is clearly an advantage to bring a proceeding by way of application, the challenge for the savvy litigator with a borderline case is to determine whether Rule 14.05(3)(h) is sufficiently malleable to accommodate his/her dispute. Inevitably there will be scores of applications met with the response that the proceeding should properly be constituted as an action and cannot be shoe-horned into the Rule 14.05 paradigm.

In West v. Edson Packaging Machinery Ltd. et al., a case addressing the dispute of material facts⁹, Cavarzan J. comments on the decision of Watt J. in Niagara Air Bus Inc. v. Camerman (reversed on other grounds)¹⁰:

I do not understand the reasons of Watt J. to preclude the court from considering, on the basis of the material before it, whether or not a dispute can be adequately resolved through judicial intervention in proceedings constituted as an application rather than as an action. In fact, Watt J. injected the following qualification into his reasons at p. 726:

It ought equally to be remembered, however, that notwithstanding that factual issues, per se, may not disentitle an applicant to his or her relief, an application is not and cannot be transformed into the trial of an issue nor an action. The exceptional procedure of an application under rule 14.05 ought to be recognized for what it is, not forced into the accomplishment of something beyond its apparent scope.

In Regina v. Jetco Manufacturing Ltd. and Alexander,¹¹ the Ontario Court of Appeal looked at the circumstance where the appellant had been convicted and sentenced for being in contempt of court. The appellant had filed an affidavit in which he disputed the respondent’s affidavit that he had received a particular court order via post. Brooke J.A. stated:

From the moment of the filing of the appellant Alexander’s affidavit, the matter was no longer one in which, as the applicant alleged, none of the facts were in dispute. When there are controverted facts relating to matters essential to a decision as to whether a party is in contempt of court, those facts cannot be found by an assessment of the credibility of deponents who have not been seen or heard by the trier of fact, as was done in this case. The judge here quite simply was in no position to make the factual determination upon which his contempt order was predicated. On the disputed state of the evidence before him he could not properly conclude that the municipality had established beyond a reasonable doubt that the appellants were aware of the prohibition order of the justice of the peace. In the circumstances of this case, a trial of the issue raised by the application ought to have been ordered.

Fortunately for the solicitor who is found to have erred in improperly bringing an application where an action should have been, the Rules provide at Rule 2.01(2) that:

The court shall not set aside an originating process on the ground that the proceeding should have been commenced by an originating process other than the one employed.

This is reflected in by the Ontario Court of Appeal in Chilian v. Augdome Corp¹²:

[W]here a statute merely enables a person to “apply” to a court for specified relief, the law does not mandate one particular form of proceeding — application or action. However, even in the event that a party may have chosen the wrong form of proceeding, our current law does not reflect the attitude underlying the old common law rule under which a litigant was non-suited for having adopted the wrong “form of action”.

The use of Rule 14.05(3)(h) applications is not confined to simple matters nor barred by the complexity or evidentiary burdensome nature of a claim. In Toronto (City) v. Canadian National Railway Co.¹³ the respondent argued the position that due to the complexity, voluminous confusing documentation, potential need for viva voce evidence and potential lack of finality of litigation, an application was not a proper or practical route for the litigation. In disagreement, MacPherson J. stated:

CN’s real argument on this point is that this is a complex commercial case worthy of ‘a day in court’ with that phrase being defined in terms of a full-blown trial. I do not agree with CN’s attempt to create the equation complexity = trial. CN is, of course, entitled to its ‘day in court’.However, the rules provide for different types of litigation depending on the nature of the issues that need to be resolved. The application process is as much a ‘day in court’ as the trial process. The relevant question is not: how complex is this litigation? Rather the relevant question is: what is the nature of this litigation?

Conversion of an Application into an Action

Where it is not clear to a respondent that an application is the proper procedural route, that respondent may apply to the court to have the application, or certain issues therein, converted into an action. Rule 38.10 gives the presiding judge upon an application the discretion to:

1. (a) grant the relie sought or dismiss or adjourn the application, in whole or in par and with or without terms; or

1. (b) order that the whole application or any issue proceed to trial and give such directions as are just

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.

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.

The above provisions provide respondent’s counsel ammunition to force delay and cost. There are numerous reasons that may be relied upon by strategizing counsel for the purpose of converting an application into an action. One commentator enumerates the following four instances where in the discretion of the court, an application can be converted into an action:¹⁴

1. where complicated and disputed questions of fact exist;¹⁵
2. where there are issues of credibility;¹⁶
3. where oral evidence is required to render a proper decisions;¹⁷
4. where affidavits are insufficient to render an appropriate decision.¹⁸

Accordingly, an application which may have been brought for the strategic reasons of expedience and efficiency could backfire. Cunning responding counsel can cause additional cost and delay, which the applicant was seeking to avoid, if he/she can fit the application into one of the above mentioned reasons and successfully have an application converted into an action. Counsel guided by an attempt to save time and money may unwittingly commit his/her client to greater expense and delay.

In Anglo Canadian Fire & General Insurance Co. v. Robert E. Cook Ltd.,¹⁹ a case decided under the old rules, the court was asked to construe a document where the rights of the parties depended on questions of fact which may have been in dispute. Van Camp J. stated:

The reason for the dismissal of the motion is that I hold that under Rules 611 and 612 and, specifically, under Rule 611, that this Rule should be invoked only when”there are no material facts in dispute”. Unlike Rule 612, these words do not appear in the Rule and the fact that the one Rule contains them and the other does not might at first lead one to believe that their very exclusion from Rule 611 meant that they were not required; however, as I read the cases, it has always been the position of the Court that the application by originating notice, rather than by action, should be used only when there is no matter in dispute between the parties and when the document to be construed is the only document to which it is necessary to give attention. If the interpretation or construction of the document will not end litigation and finally determine the rights of the parties then this procedure should not be used.

In Zurich Insurance Co. v. Reeve,20 the applicant was asking for a declaration limiting its liability under a liability insurance policy. There were disputes as to the dates of the claims and the events that gave rise to the claims. The application was dimissed as premature as the policy in question was ambiguous and extrinsic evidence was necessary to resolve the ambiguity. Dilks J. offered a succinct statement concerning where an application is appropriate:

An application is not an appropriate vehicle where there are material facts in dispute (Anglo Canada Fire & General Insurance Co. v. Robert E. Cook Ltd., [1973] 2 O.R. 385; Beloit Canada Ltée./Ltd. et al. v. Valmet O.Y. (1986), 8 C.I.P.R. 68); or where the factual situation, although not strictly in dispute, is really hypothetical (Barnes et al. v. Townships of Kaladar, Angelsea and Effingham 52 O.R. (2d) 283; Re 296616 Ont. Ltd. and Town of Richmond Hill 14 O.R. (2d) 787; Re Skinner, [1970] 3 O.R. 35); or where the effect will be to fragment the trial (Elcano v. Richmond, Richmond, Stambler and Mills 9 C.P.C. (2d) 260; Beloit Canada Ltée./Ltd. v. Valmet O.Y. (supra)); or when the determination will not end the dispute (Anglo Canada Fire & General Insurance Co. v. Robert E. Cook Ltd. (supra)); or when the document to be interpreted is ambiguous (Trans Canada Pipelines Ltd. v. Northern & Central Gas Corp. Limited 146 D.L.R. (3d) 293).

In the more recent decision of Re E.J. Hannafin Enterprises Ltd. and Esso Petroleum Canada et al²¹, the court showed a desire to allow disputes to proceed by way of application where at all possible. Here the respondent attempted to have an application converted into an action on the grounds that the Notice of Application disclosed triable issues that needed to be decided upon viva voce evidence at a trial. The court refused to convert the application to an action. Blair J. stated:

I would have thought that it made considerable sense in the proper case, from a commercial point of view, and also, in these days of protracted and expensive litigation, for a court to determine in a summary proceeding, if possible, an issue which might well be determinative of the overall dispute, thus saving the parties the time, effort and significant expense of what could be a lengthy trial. Accordingly, I would have had little hesitation in determining that the matter could be dealt with by way of application were it not for a line of authorities put before the court by Mr. Ledger which stand, essentially, for the proposition that the court should not act in half-measures on applications and that it should not deal with issues in a bifurcated fashion if, on one outcome of the argument, the matter should be required to proceed to trial in any event…

In my view, fragmentation of the trial and lack of finality are not evils in themselves, in the context of an application, if the end result is to enable the parties to process their dispute more expeditiously and efficiently, and provided there are no material facts which require a trial for their disposition in relation to the fragmented issue, and provided there is some reasonable prospect that the resolution of that issue may resolve the lis between the parties.

The above case law demonstrates the inherently precarious nature of applications where a dispute as to material facts may lie. While there may be circumstances where an application may appear to yield a tactical advantage, a litigant may be better off proceeding by way of action and moving for summary judgment.

However, as demonstrated in E.J. Hannafin above, judges are conscious of the delay and expense that can be unnecessarily incurred when actions are permitted to proceed in the normal course and appear anxious to co-operate in the expedition of such matters. Additionally, when an application is converted into an action, depending on the circumstances, the applicant will be able to request a strict schedule concerning completion of a trial of an issue or an action. Thus, a willing judge may aid the applicant in tempering the respondent’s ability to inflict excessive cost and delay.

Other Tactics Available to a Respondent

Aside from having an application converted into an action there remain certain other methods a respondent may employ to stifle an applicants tack towards a speedy and inexpensive final disposition.

One such tactic worth noting is that parties who choose to cross-examine last may enter new affidavit material after being cross-examined. Such a move will often force the opposing to incur further costs by conducting further cross-examinations relating to the new affidavit evidence.

Another strategy for counsel to be wary of is the attempt of opposing counsel to slow things down and cause additional expense by asking for an adjournment for cross examination at the hearing of the application. While there are times where this is a necessary and appropriate measure, such as where the applicant has provided a shortservice time, this is not always the case. This is an inappropriate step when counsel has had a reasonable opportunity to conduct cross-examinations though all too frequently employed. Fortunately the Rule 39.02(3) provides:

The right to cross-examine shall be exercised with reasonable diligence, and the court may refuse an adjournment of a motion or application for the purpose of cross examination where the party seeking the adjournment had failed to act with reasonable diligence.

The right to cross examine is limited by the obligation to do so diligently. As well, the right is not absolute. There are cases where a Court will refuse a request to cross examine where it appears to the Court that the cross examination will serve no purpose and appears to be designed solely to delay or increase the cost of litigation. Unfortunately, despite Rule 39.02(3) and supporting case-law, as one commentator noted, “in practice… adjournment to conduct cross-examination is seldom denied.”²²

Rule 39.03(1) which permits the examination of a witness before the hearing of the application affords a responding solicitor another opportunity to cause delay and increase costs. There is no limitation on whom or how many people can be examined under this rule so long as the information gleaned is relevant. Accordingly, counsel is free to examine various opposing parties and non-parties to an escalating expense. In this circumstance, opposing counsel may wish to bring a motion seeking a limitation on the number of rule 39.03(1) examinations on the basis that such examinations are an abuse of process. While this may help, the examining party will have succeeded in causing delay and expense.

In Caputo v. Imperial Tobacco Ltd.23, Winkler J. (as he then was) give the following review of the relevant law:

Where a party seeks to examine a person pursuant to rule 39.03, that party need only demonstrate that the evidence sought is relevant to the issues on the motion. In order to challenge an examination under this rule, the party seeking to do so must demonstrate that the examination would amount to an abuse of process. This approach was set [**10] out in Canada Metal Co. v. Heap (1975), 7 O.R. (2d) 185, 54 D.L.R. (3d) 641 (C.A.), decided under Rule 230 of the Rules of Practice, the precursor to rule 39.03. Arnup J.A. stated at p. 192:

“The evidence sought to be elicited must be relevant to the issue on the motion. If it is, there is a prima facie right to resort to Rule 230. That right must not be so exercised as to be an abuse of the process of the Court. There will be such an abuse if the main motion is itself an abuse, as by being frivolous [*318] or vexatious, or if the process under Rule 230, while ostensibly for the purpose of eliciting relevant evidence, is in fact being used for an ulterior or improper purpose, or if the process is being used in such a way as to be in itself an abuse (as for example, by issuing subpoenas to every member of the House of Commons to prove a defamatory statement shouted out by a spectator in the gallery). The list is not exhaustive.”

This test has been adopted under the current rule 39.03. As Sharpe J. noted in Transamerica Life Insurance Co. v. Canada Life Assurance Co. (1995), 27 O.R. (3d) 291 at p. 299, 46 C.P.C. (3d) 110 at pp. 120-21 (Gen. [**11] Div.):

“In effect, the defendants are saying that a party seeking to conduct a rule 39.03 examination must show some likelihood that the examination will yield evidence helpful to that party. In my view, this places too heavy an onus on the party seeking to examine a witness. A party resorting to a rule 39.03 examination is required to show that the proposed examination will be on an issue relevant to the pending motion and that the party to be examined is in a position to offer relevant evidence. I am aware of no authority which requires the party to go one step further and show that the proposed examination will yield evidence helpful to that party’s cause. In Canada Metal Co. v. Heap (1975), 7 O.R. (2d) 185 . . . (C.A.), the leading case interpreting the Rule 230 of the Rules of Practice, the provision corresponding to rule 39.03 at the time the case was decided, Arnup J.A. stated(at 192): “The evidence sought to be elicited must be relevant to the issue on the motion. If it is, there is a prima facie right to resort to Rule 230.” It may [**12] well be that the plaintiff will not elicit helpful information from Mr. Heft, but in my view that possibility does not defeat their right to conduct the examination as the proposed area of inquiry is relevant to the plaintiff’s theory of liability on the part of C.L.A.C.”

Rule 39.03 can be an effective strategic tool on an Application. The prudent counsel will always consider whether it ought to be used.

Conclusion

In a time where litigants may be wary to act due to escalating costs, the successful solicitor will be able to identify and provide a summary solution to a summary dispute. The Application process can aid in this pursuit and extend further. The Application provides the resourceful solicitor an alternate lens through which to view a dispute so that a more complicated problem can be guided through a more summary process. There is no question that a properly brought Application will save a client time and money, though there is a question as to how far the boundaries of the Application process can be stretched. This paper has endeavoured to map the contours of the Application process, so that the practitioner may have the means in his/her toolbox to address a client’s concerns more fully.