Short Notice Applications

Short Notice Applications

A Short Notice application is an application that is brought to court without notice given to the other party. There is typically a sense of urgency when these applications are requested.

Short notice applications are also known as short leave applications.

Short notice applications are typically used in personal injury cases but they can be used in family law and general litigation.

Short notice applications are usually restricted to emergent circumstances and they are not to be used to reward inefficiency, inattention to a particular case, or a lack of oversight.

In O’Callaghan v. Hengsbach 2017 BCSC 2182, Master Baker provided the following guidelines on when short notice may be provided:

• The application, should of course, be made by Requisition, usually without an affidavit, and may be heard in front of a Registrar, Master, or Judge;
• The application should be made in court, on the record (or by video or telephone), and not online as an e-filed application;
• The Applicant, or Applicant’s counsel should notify the opposing party of an intention to apply for short leave so that opposing counsel can appear. At the very least, the applicant or applicant’s counsel should contact opposing counsel to check availability for a proposed chambers date. Applicant’s counsel should also inquire as to whether short leave is opposed by opposing counsel;
• The applicant/applicant’s counsel should be prepared to provide a full accounting of the facts, circumstances, context, and chronology leading up to the application for short leave. This summary should establish that the applicant has been affected or surprised by events and/or developments that were not reasonably foreseeable;
• The applicant should be prepared to provide favourable and unfavourable facts if opposing counsel is not present; and
• If any material or pivotal fact or element is disputed by opposing counsel, the applicant should provide affidavit evidence on the point, and as always, counsel should not speak to his or her own affidavit is the matter is contested;

In summary, the court will balance the prejudice of both the applicant and the opposing party in light of reasonably unforeseen facts, circumstance, developments and events.

Further, some areas of law tend to provide more emergent activities or crises than others- in example, family law would fall into this category. Having said that, short leave applications should be used sparingly and only when the event or action was not reasonably foreseen by the applicant. A close look at the notice of civil claim and the documents that come after it will often provide some insight as to whether an action will or will not be taken by the opposing party.

A practice direction on short notice applications can be found here

For more information on how to use a short notice application, get in touch with us at info@saidilawcorp.com or call us at 604-930-9578.