If you are a litigator in BC — particularly one in your first 10 years of practice — you likely spend a fair bit of time preparing chambers materials.
Drafting a notice of application for a procedural application can be a frustrating process. Your time is often limited and you likely want to avoid spending too many billable hours on it. Form 32 has an awkward structure and requires a great deal of information to be squeezed into 10 pages.
And yet this is an critical piece of written advocacy. The outcome of the application is likely important to your client. Not only that, every notice of application represents an opportunity to demonstrate your skills as an advocate to opposing counsel and to the court. Most young lawyers’ reputations as advocates are built one procedural application at a time.
So take care with your notices of application. Here are my top 10 tips to help you with that task.
1. Draft Part 1 just as you’d draft the order you want the court to grant.
Part 1 should read exactly like the order you hope the court will grant.
Instead of:
PART 1: ORDERS SOUGHT
1. The defendant seeks an order that the plaintiff produce an amended list of documents within 14 days.
2. The defendant seeks its costs of this application.
Try:
PART 1: ORDERS SOUGHT
1. The plaintiff produce an amended list of documents within 14 days.
2. The plaintiff pay the defendant its costs of this application.
It’s less wordy this way and it will make it easier for you to draft the order if you win.
2. Seek only the relief you’re prepared to back up with facts and law.
It is tempting to treat Part 1 as a wish list. But too often, lawyers seek alternative relief (like special costs or a complete dismissal of their opponent’s claim/defence) that they do not realistically believe they’ll get.
It’s okay to seek alternative relief, but before you throw in the kitchen sink, remember that every ground of relief sought should be supported by both a factual basis in Part 2 and a legal basis in Part 3.
So even if the other side has been dilatory in taking a step in the litigation, prompting your client to apply, do not ask in the alternative that their entire claim be dismissed, unless you are prepared to sit down and write out why you believe you are entitled to that relief.
3. Insert an introduction right at the beginning of the Factual Basis section.
Form 32 contains no space for an introduction but don’t let that stop you!
I like to include mine as the first paragraph under the Factual Basis section. My introductions aren’t strictly factual but in this instance I think I’m justified in bending the rules.
Introductions are an essential component of good legal writing in almost any legal document, including notices of application. Why? Because a reader’s brain absorbs details best if it can grasp the significance of those details as soon as it encounters them. So before the judge starts wading through the facts, it is helpful for her to know what the case is about and what you are seeking. Then her brain can sort through and retain the facts much more efficiently.
Here’s a simple template for an introductory paragraph in a notice of application:
One sentence explaining what the case is about.
One sentence summarizing the key fact(s) on which the application is based.
Once sentence explaining what the applicant is seeking.
I’ve provided a few basic examples below.
Here’s a sample introduction for an application for a stay of proceedings:
The plaintiff sues Company A for wrongful dismissal. Her employment with Company A was governed by a written contract. That contract contained a forum selection clause identifying the State of New York as the appropriate jurisdiction for disputes arising from the employment relationship. Company A seeks an order that this court decline jurisdiction and stay the action.
Here’s one for a waiver of privilege application:
Company B sues Company C for breach of its duty of good faith in performing a waste management contract. Company C filed a response to civil claim in which it pleaded that it relied on the advice of its lawyers in performing the contract. In so doing, Company C impliedly waived privilege over the contents of its solicitor's file. Company B seeks an order for production of the solicitor's file no later than January 1, 2022.
And here’s one for an application for further discovery:
The plaintiff sues Company D in libel for publishing a defamatory internet article about the plaintiff in 2019. Plaintiff's counsel conducted a four-hour examination for discovery of a Company D representative in September. At that examination, the representative declined to answer 37 questions, professing lack of knowledge. Plaintiff's counsel left 37 requests, most of which remain unanswered. The plaintiff seeks an order for leave to discover a second representative of Company D.
Don’t spend a bunch of time trying to come up with a perfect, clever introduction. All you’re aiming to do here is orient the reader so that she can more quickly and easily make her way through the facts.
4. Include only the facts you need to make your case.
The factual basis section can be a challenge for lawyers. You likely know a lot about the case and it's tempting to throw in too much detail. Or you're in a rush and want to copy and paste the facts section from another document you’ve already prepared.
I recommend the following. First, go to Part 3 (Legal Basis) and sketch out your legal argument, including the legal test(s) you must meet in order to be granted each ground of relief you claim. Then, when drafting Part 2, include only those facts that are necessary to meet each element of each legal test. Finally, take a step back and consider what additional facts are necessary to provide sufficient context for the judge or master to make sense of your case.
5. Be accurate in presenting the facts.
Never ever stretch or embellish or omit key facts.
This is not a conventional trial where the judge is hearing the evidence directly, can assess its accuracy and direct its flow. On an application, you are presenting the court with a ready-made bundle of evidence. The court is trusting you to do so with integrity. Try not to damage that trust.
Remember that your Notice of Application should do 3 things:
Explain what you want
Explain why you should get it
Establish your credibility as counsel
If you don't achieve #3, it will be harder to get your result even if you knock #1 and #2 out of the park. The easiest way to lose on #3 is to be less-than-accurate with the facts.
6. Include affidavit references in the Factual Basis section.
Typically, it’s prudent to insert references to the affidavits (or other types of evidence) in your Factual Basis section. Underneath each paragraph containing a fact, indicate where in the evidence that fact can be found.
Why? It provides a handy reference for the judge or master. It also imposes a level of self-discipline to ensure you are not overstating the facts.
The only time I would not do this is if the facts are not in issue and there is little chance the judge or master will need to refer to the affidavit evidence, or where the application hearing is booked for over 2 hrs and you’ll be preparing a written argument. In that case, the specific affidavit references (together with references to the Application Record tabs) can go in the written argument.
7. Make liberal use of headings.
Use headings in both your Factual Basis and Legal Basis sections. I like using headings in almost all of my legal writing. A notice of application is no exception.
For a reader to absorb complex information, it helps their brain if they can divide content into discrete parts. Headings will ease the reader’s way through your notice of application. They break up long blocks of text and make the document easier to skim.
8. In Part 3, provide a concise and complete legal analysis.
Too often, lawyers include a meagre legal argument in Part 3. Or worse, none at all.
That’s a bad idea. Form 32 is designed to include a complete legal argument. It says so right in the Rules:
R. 8-1(4)(c) A notice of application must be in Form 32 and must… set out the rule, enactment or other jurisdictional authority relied on for the orders sought and any other legal arguments on which the orders sought should be granted.
The rule is designed to avoid litigants being taken by surprise. But it’s also an essential tool of advocacy on a procedural application. Your time available in front of the judge or master will be short. A solid legal argument will help to maximize that time because: a) the judge or master may have a chance to read it beforehand, giving them a preview of your submissions, b) the judge or master may not have to take as many notes during your submissions, and c) if the judge or master reserves, he or she may use the notice of application to prepare the reasons.
Do not assume you will fill in the blanks on your feet or hand up a written argument at the hearing. Strictly speaking, a written argument is not permitted in chambers applications scheduled for under 2 hours. Some judges and masters will accept them, but the safest bet is to include a thorough argument in Part 3 of the notice of application.
9. But don’t cite too many cases.
Your legal analysis should be complete, but try to avoid citing too many cases. In a short procedural application, there just isn’t time to get through them all. As one of my lawyer-clients has told me more than once, "Erica, you know that if you include a case in the NOA, that means I actually have to read it??"
It's true. You are making your job — and that of the court — unnecessarily hard if you cite two cases where one will do. Consider the amount of time allotted for the hearing. Consider how voluminous your binders will look once all those cases are printed out. Consider how much time you have to prepare. And weed out any case that is not absolutely necessary.
10. Keep to the 10-page limit (and not with creative formatting!).
If this seems like a lot to jam into 10 pages, it is.
But the rule says what it says, and was enacted for a reason. Try to show respect for the Rules and for the court's time by sticking to that page limit. I don't believe mosts registries will reject NOAs that are over 10 pages, but don't assume the judge won't notice!
Again, this is your chance to build your credibility with the court. Demonstrate that you can advocate for your client’s position within the constraints laid out by the Rules.
And whatever you do, don't achieve compliance with the page limit by using 9-point font or narrow margins! That will definitely be noticed, and not in a good way.
Next up…. affidavits. Stay tuned.
