Prepare Supporting Documents
Prepare the Affidavits
Any evidence (material that tends to prove something) that you wish the Court to consider in the application must be set out in affidavits. Both applicants and respondents will probably prepare and deliver affidavits.
An affidavit is a written statement made by a person under oath to a lawyer, a commissioner of oaths, or a notary public, to be used as evidence.
Before preparing your affidavits, consider:
- What facts your affidavit should contain to persuade the Court to make the order you are asking for
- Who is the best person to swear the affidavit; that is, who has the most direct knowledge of the facts you are setting out and
- How you want to present the information in the affidavit
The affidavits should include only evidence that relates specifically to the application in question. You should attach as exhibits to the affidavit any documents you have relating to the subject matter of your application, such as letters, courier slips, or fax records. See Rule 22-2(8) for further information on how to attach exhibits.
If you are asking the Court to make a final order in your application, the person who swears any affidavit supporting your application must have direct knowledge of the facts contained in the affidavit. In other words, the person swearing the affidavit should not give evidence about facts that someone else told them. Information heard from someone else is called hearsay and the Court does not allow this kind of evidence in applications for final orders (see Rule 22-(12) and (13)).
If you are asking the Court to make an order that is not final in nature (in other words, an interlocutory order), then the person swearing the affidavit can include statements that someone else has informed them of, as long as the source of the information is also given. However, it is generally preferable if you can get an affidavit from a person who has the most direct knowledge of the information.
If you are the respondent and you want to respond to evidence in an affidavit filed by an applicant, you should prepare an affidavit setting out your response.
For more information, see Affidavits.
Prepare the Application Record
An application record is a binder you file with the Court before your application. It contains all the important documents the judge or master will need to make a decision. There are specific rules for what an application must contain and how it should be organized. You must always prepare an application record even when the other party has consented to the application or if it is being brought without notice to the other party. Rule 8-1(15) deals with the application record.
It is extremely important that you get your application record in on time. If you do not, your application will probably have to be rescheduled.
The applicant must provide an application record to the court registry, no later than 4 p.m. on the business day that is one full business day before the hearing date. A business day means a day on which the court registries are open for business. So, for example, if an application is to be heard on a Wednesday, the applicant must file the application record by 4 p.m. on Monday. If the application is to be on a Monday, it must be filed by the previous Thursday at 4 p.m. If it is to be heard on a Tuesday, it must be filed by 4 p.m. the previous Friday.
Further, you are not allowed to provide an application record any earlier than 9 am on the business day that is three full business days before the date set for the hearing.
When you provide your application record to the registry, you must also provide an extra copy of the notice of application or petition. On that extra notice of application, indicate the order in which the relief sought will be spoken to. That is, if you ask for two orders, but will talk about the second order sought before talking about the first order, make a note saying that on the extra copy.
The application record must be in a ring binder or other type of secure binding.
What to Put in an Application Record
The application record must contain, in sequentially numbered pages (or separated by tabs), the following documents, in this order:
- A title page with the style of proceeding and the names of the lawyers, if any, for the applicant and the application respondents
- An index
- A copy of the filed notice of application
- A copy of each filed application response
- A copy of every filed affidavit and pleading, and of every other document other than a written argument, that will be relied on at the hearing and
- If it is a summary trial, a copy of each filed pleading
The application record may contain:
- A draft of the proposed order
- A written argument, if the application is estimated to take more than 2 hours
- A list of authorities and
- A draft bill of costs
The application record must not contain:
- Affidavits of service
- Legal authorities (e.g., copies of case law, legislation, legal articles, etc.) or
- Any other documents unless the other parties consent
Unless the court orders otherwise, the applicant must retrieve the application record at the end of the hearing (or the following business day if the hearing was adjourned).