August 18, 2020

Litigation comes with its own jargon which is not easy to decipher. In Ontario a lawsuit/court proceeding is categorized as either an action or an application. What’s the difference?

The terms are defined in the Rules of Civil Procedure, but these definitions are not terribly useful at first blush; an action is defined as “a proceeding that is not an application” that includes proceedings commenced by various documents (e.g. a statement of claim or third party claim).

It is helpful to think of actions and applications as similar journeys with different destinations. Unless the parties resolve their differences, both actions and applications end with a judge making a decision (known as a judgment). However, an action concludes with a trial with live witnesses before the judge (or judge and jury). In contrast, an application ends in a ‘paper trial’ with the judge reviewing evidence (including transcripts of previously conducted examinations) and hearing submissions from lawyers.

Only some types of proceedings can be commenced via applications. These include matters “where it is unlikely that there will be any material facts in dispute requiring a trial.” In general civil litigation, therefore, applications are typically brought when the parties mostly agree on what happened. However, many estate matters can proceed by way of application as of right including an application for:

  • directions regarding the administration of the estate or the execution of a trust;
  • an order for an estate trustee/trustee to do or not do any particular act in respect of an estate or trust;
  • removing or replacing estate trustees/trustees or fixing their compensation;
  • interpreting wills; and
  • varying trusts.

When an application is brought it must be accompanied by a sworn affidavit setting out the underlying facts and evidence. The evidence in an action, by contrast, typically is disclosed more gradually (known as the discovery process). The parties have to exchange all relevant documents in their power, possession and control. Then the parties undergo examinations for discovery where they are asked questions under oath and a transcript is taken that can be used against them at trial.

However, in practice, the borders between actions and applications are fuzzy. Parties to an application often agree to a court order that provides many of the same discovery obligations as in an action. Anyone who swears an affidavit can be cross-examined on it and the parties can also examine any individual under rule 39.09 of the Rules of Civil Procedure. An application can always be converted into an action and resolved by a trial; by contrast, more and more actions are determined via some form of summary procedure where a judge does not hear live witnesses.

Whether an action or an application, experienced estate litigators such as those of us at de VRIES LITIGATION LLP can help you navigate the murky waters of court proceedings.