An application is a request to a court to make an order. They are of two types: pre-trial applications and trial applications.
Commencing an application
Applications are commenced by serving the opposing parties and any other affected party with a completed Form 1 (along with supporting materials), and then filing the application with proof of service at the court office. Form 1 is found online at www.ontariocourts.ca/ocj/criminal-rules/).
In addition to Form 1, an application will typically include an affidavit/s setting out the facts upon which the application is based. [FN1] Affidavit evidence is by far the most common form of evidence used for applications. Other types of evidence include an agreed statement of facts, transcripts, and oral testimony. Oral testimony is usually not required in most pre-trial applications.
How many copies of the Application do I need?
Make at least four copies of your application:
1. A copy for you the Applicant/Counsel to retain.
2. A copy to be served on the Crown (usually the Crown Office, Ministry of the Attorney General Ontario, which is found at the local courthouse).
3. A copy to be served on the Trial Coordinator (this copy goes to the application judge);
4. A copy to be filed at the court office after service on all parties is complete (this copy is appended to the information).
5. Sometimes an additional copy is required, as any party with an interest in the matter must also be served. For instance, in a contested application to remove counsel from record, counsel must serve her client, the accused.
How to serve an application
Service of applications may be made in person, by fax or by email. Hard copies of the documents served must be filed with the court.
Rule 3.3(1) of Criminal Rules of the Ontario Court of Justice.
The Rules allow for the electronic filing of applications where authorized by a practice direction. [FN2] But until that overdue change comes to your town serve the Crown and the trial coordinator personally, as the Crown’s office and the trial coordinator’s office are inevitably within the same courthouse where you must file the application.
Applications must be served at least 30 days before the application hearing date.
Rule 3.1(1) of Criminal Rules of Ontario Court of Justice.
Applications which do not meet the time requirements for service are known in the industry as “short service applications”. The Court may or may not, at its discretion, hear a short service application. [FN3]
Who Chooses the Application Hearing Date?
For simple pre-trial applications such as removal of counsel of record, bring forward motions, applications to vacate trial, the Applicant (his/her counsel) selects the hearing date, mindful of the rules that applications must be served at least 30 days before the application hearing date, and that, unless ordered otherwise, pre-trial applications are heard at the Ontario Court of Justice at least 60 days before trial.
See Criminal Rules of the Ontario Court of Justice, Rule 2.4 (1).
Applications such as section 11(b) applications (unreasonable delay), section 276 applications (application to adduce evidence of other sexual activity), and section 278 applications (third party records, Mills regime) are scheduled directly through the trial coordinator’s office. If you are unaware of the correct scheduling protocol, contact the trial coordinator at the courthouse for assistance.
Where the Applicant is unable to meet the time requirements for service, he/she should specifically include in the relief sought a request for an abridgement of the time limits for serving and/or filing the relevant application material (eg. “An order abridging the time required for service of this application”). The reason for non-compliance with the Rules should be set out in an affidavit. It is a good idea to also include whether consent has been sought and obtained.
It is my view that where part of the relief sought in the application includes an order shortening the time otherwise required for service, the Crown cannot refuse to accept service of the application on the basis that it is a short service application. The authority to hear a short service application (or not) resides in the court. That said, it is very unlikely a court will hear the application where the Crown raises real concerns relating to the lack of timely notice.
Applications at Courthouses in Toronto
For applications that are not required to be scheduled directly through the trial coordinator:
Scarborough
1911 Eglinton Avenue East
Applications heard any weekday
Courtroom 406 at 10:00 am.
College Park Courthouse
444 Yonge Street—2nd Floor
Applications heard any weekday
Courtroom 503 (plea court) at 10:00 am
Old City Hall Courthouse
60 Queen Street West
Applications heard any weekday
Courtroom 112 at 10:00 am.
1000 Finch
1000 Finch Avenue West, Toronto
Applications heard any weekday
Courtroom 303 at 10:00 am
[Information current at date of writing, Aug 13, 2018.]
Proof of Service
When you personally serve your application on the Crown, the Crown will endorse acceptance of service on the application itself by signing and dating at least two copies of the applications it receives (one of which it retains). On the other copies, the Crown may simply stamp that the application has been received, along with the date of receipt. The stamped copies are returned to you.
The trial coordinator will also endorse acceptance of service by stamping the copies of the application “Received” along with the date of receipt. Like the Crown, the trial coordinator will retain one copy and return the other stamped copies to you. Therefore, the application that you file at the court office will have stamps indicating service on both the Crown Office and the Trial Coordinator. These stamps suffice as proof of service.
Of the remaining copies of the application you have, file the copy which the Crown has signed (and not just stamped “Received”).
If you are required to serve a non-institutional party (such as the accused), be sure to file an affidavit of service attesting to the fact that the party was served, unless that party endorses directly on the application that service is accepted.
Hearing dates
[FN1] Where the Application is more extensive than just Form 1 and a brief supporting affidavit an Application Record should be created. The document is bound, and will include a coverpage, backpage, index, and tabs separating the different components of the application. Ideally, its pages should be sequentially numbered. Where used, a book of authorities and factum may be provided as separately bound documents.
[FN3] Under Rule 5.3, the Court may excuse non-compliance in order to ensure that the fundamental objectives of the Rules are met. Additionally, the Court has the inherent power to control its own process.
Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca (All rights reserved to author).
