Written Advocacy Handbook – The Notice: You Only Get One Chance To Make A First Impression

LL
Lerners LLP

Contributor

Lerners LLP is one of Southwestern Ontario’s largest law firms with offices in London, Toronto, Waterloo Region, and Strathroy. Ours is a history of over 90 years of successful client service and representation. Today we are more than 140 exceptionally skilled lawyers with abundant experience in litigation and dispute resolution(including class actions, appeals, and arbitration/mediation,) corporate/commercial law, health law, insurance law, real estate, employment law, personal injury and family law.
A notice, such as a Notice of Motion, Notice of Application, or a Notice of Appeal, notifies a party that a claim has been brought in a proceeding in which they have an interest.
Canada Litigation, Mediation & Arbitration

What is a Notice?

A notice, such as a Notice of Motion, Notice of Application, or a Notice of Appeal, notifies a party that a claim has been brought in a proceeding in which they have an interest. It can be on originating document, in the case of an appeal, or it can be brought in a proceeding that already exists in an action or application.

Knowledge of the applicable law

You need to be aware of all of the relevant legislation, regulations and jurisprudence that govern your case. Claims cannot be asserted in a vacuum. The authority for your claim comes from statutes and the common law; if they don't, then you don't have a claim.

Parties to the proceeding

The notice must correctly identify all of the relevant parties to the proceeding. Depending on the nature of the proceeding, this may include plaintiffs, defendants, appellants, respondents, applicants, etc. It is not enough to know who your client is and what they want. Your client's role in the proceeding needs to be identified by reference to every other party's role in the proceeding. Will there be other plaintiffs/appellants/applicants? Will they be retaining you? Is there a conflict that will may prohibit you from being retained by the various parties which are initiating the proceeding? Are there parties must be named in a proceeding of this nature?

"Required party" in this context means required by the rules governing the proceeding or the legislation or jurisprudence that provides the authority for the claim. Knowledge of the applicable law is paramount.

Specific information

The different documents that provide notice of a hearing or proceeding require different information (know the law!). In each case, the required information will include a procedural and a substantive component.

To meet the procedural requirements, notices should typically include information such as the time, location, and nature of the hearing or proceeding (if that is known) as well as any action that the notified party is required to take. The notice should also include details about how and when the party should respond to the notice. In most cases, Ontario Court forms are formatted such that this kind of information is already filled in or is ready to be filled in at clearly identified points in the document. However, the obligation falls on the notifying party to ensure that the notified party has all the information that they require to respond to the notice.

The required substantive content of notices will vary depending on the proceeding or hearing at issue. At a minimum, responding parties need to know the claim which has been brought against them, the facts which support that claim, the legal basis for the claim, and in the case of an appeal, the grounds of the appeal. If you cannot connect the facts to the claim in accordance with a sound legal basis, then you are not ready to draft your notice.

Format

Different jurisdictions often have different rules which impose requirements on page limits, fonts, text size, line and margin spacing, etc. It is important to consult the relevant sources of authority for these rules. While reviewing the relevant practice directions1 is necessary, it may not be sufficient, as individual courthouses frequently communicate to the bar by distributing memorandums. If you are issuing a notice in a jurisdiction that you do not typically practice in or where you may not have received the applicable memorandum for any reason, it is important to request the relevant memorandum from the courthouse.

Clear and concise

While writing clearly and concisely is always the correct approach, this is particularly important when drafting a notice. To write clearly means that the text should be devoid of ambiguity and vagueness. Responding parties must know what they are responding to. A notifying party should assume the court will resolve ambiguities in favour of the responding party.

Similarly, jargon and legalese should be avoided. If your claim can be articulated in plain language, use it.

To write concisely means to provide the necessary facts, claims and law and nothing more. Details of the facts which support your client's claim will be provided as evidence in the proceeding, not in the notice.

Footnote

1. https://www.ontariocourts.ca/scj/practice/practice-directions/provincial/; www.ontariocourts.ca/coa/how-to-proceed-court/practice-directions-guidelines/; https://www.scc-csc.ca/parties/gl-ld2021-01-27-eng.aspx

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More