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Matt Mauer publishes "An Interesting Approach to a Routine Motion" on Slaw

Dec 03, 2013

I have had the unfortunate experience of participating in lengthy undertakings and refusals motions. I think the only people who like these motions less than counsel are the Judges and Masters that have to hear them.

Often these motions are lengthy due to the fact that the moving party moves on nearly every outstanding undertaking and refusal without bothering to try to pare the list down to questions that are important.

In a recent decision, Justice Brown came up with a concept that may deter counsel from bringing refusal motions that are unnecessarily lengthy. Justice Brown advised counsel, before the motion, that he was considering approaching the issue of costs of the motion on an "amount per refusal" basis, in the neighbourhood of $1,500 per refusal. As such, if counsel moved on 8 refusals but only succeed on 2, they could actually end up paying costs of the motion ($3000 – $9000 = -$6000) notwithstanding that they obtained some success.

I would be interested to see if this creative approach, if adopted on a wider scale, would have the intended benefit of forcing lawyers to give some thought to which refusals they wished to move on prior to bringing their motion.

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