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  • My Legal Briefcase

    Bringing a Motion
    Posted: 2011-03-10 06:13:37

    As discussed in prior blog postings on My Legal Briefcase, after being served with a claim it is necessary to file one’s defence with the court within 20 days of receipt of said claim. But what happens if, for good reason, the Defendant misses the deadline for filing, and will no doubt lose the claim by default. Or, what happens if the Defendant has been wrongly named in the claim? Are these issues ones that can be corrected?

    The short answer is yes. Both problems, as well as a handful of others, can be addressed with a Motion. In essence a Motion is a formal request that asks the court to revisit, re-consider, or redirect something of existence within the legal procedure. So, if by chance the wrong person has been named in a claim, for example, the Motion would provide reasons and proof to the court as to why the improper party has been named and would then ask for the Defendant to be stricken from the claim. It would also name the proper party to be included on the legal action and request that the claim to be re-directed to the newly named party.

    Anyone who is a party in a claim can make a motion, and is called ¬ďThe Moving Party¬Ē. Nevertheless, in special cases, a judge might allow for a third party to make a motion, if the person can show they will be affected by the lawsuit.

    Because a Motion, if granted, will effectively change the way in which a settlement conference or hearing will play out, a Motion hearing must be booked prior to any other court proceeding. The motion and supporting affidavits must then be served to every party in the claim within 7 days of the motion hearing, and be filed with the court no less than 3 days prior to the Motion Hearing.

    There are very specific rules to serving motions, therefore, it’s highly advised that information be obtained beforehand.

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