An application to the court can only be brought in limited situations. Rule 14.05(3) of the Rules of Civil Procedure sets out the circumstances in which an application is authorized.
There is a “catch-all” provision in rule 14.05(3)(h) which permits an application “in respect of any matter where it is unlikely that there will be any material facts in dispute requiring a trial”.
The court’s recent decision in Dubblestyne et al v. Town of Oakville, 2021 ONSC 2678, demonstrates that, when relying on the “catch-all” provision, counsel and parties should carefully consider whether an application is appropriate as opposed to an action.
The matter arose out of a dispute between neighbours. One of the neighbours removed a retaining wall and constructed a replacement wall. The applicant sought the removal of the removal of the replacement wall and construction of a new wall, along with damages.
The respondents made one main submission, specifically, that the matter could not be resolved by way of an application. Justice Harris agreed, stating that the underlying facts are unsettled and disputed. Justice Harris noted that the application procedure is best suited to resolving matters involving undisputed or easily settled facts.
Although judges hearing applications may have enhanced fact-finding powers similar to summary judgment motions, Justice Harris declined to exercise these powers. Material findings could not be made from the record. The facts were not only disputed – they were vague and unclear.
As a result, Justice Harris dismissed the application and ordered the matter to proceed to trial.
In summary, applications can only be brought if permitted by the Rules of Civil Procedure. If a party seeks to bring an application under the “catch-all” provision in rule 14.05(3)(h), they should ensure that no material facts are in dispute. If material facts are in dispute, commencing an action is the proper way to proceed.