The final substantive section of a factum is where a party sets out the specific relief they seek in the proceeding. This section typically is titled “Order Requested,” “Relief Requested,” “Order Sought”, or “Relief Sought.”
Many view this final substantive section as somewhat boilerplate. However, parties should think carefully about what they hope to get out of the proceeding and set it out precisely. If a form of relief is not requested, it generally will not be granted.
The specific relief to be requested will depend on the context of the particular proceeding. Below, we set out a number of considerations and guidelines for crafting the request for relief.
Outcome of the Proceeding
Parties should begin their request for relief by seeking an Order disposing of the proceeding in a particular manner. In most cases, depending on the nature and requirements of the proceeding and the role of the party (i.e. plaintiff / applicant / moving party / appellant vs. defendant / respondent), parties may seek:
- An Order granting or dismissing an action, application, or motion; or
- An Order allowing or dismissing an appeal.
After this initial request, parties should set out the relief that follows from the basic outcome of the proceeding. In an action, application, or motion, this consequent relief likely will be the substantive relief sought in the proceeding, further discussed below.
In an appeal, there is an additional consideration: what is the practical consequence of the appeal being granted or dismissed?
Where a party seeks an Order dismissing the appeal (the respondent position), typically they also seek an Order that the underlying decision be upheld or confirmed.
Where a party seeks an Order granting the appeal (the appellant position), typically they also seek an Order setting aside the underlying decision or Order, and either a substitute decision or a new trial or hearing. An appellant must carefully consider whether to seek to have the appellate or reviewing court substitute its own decision for that which is set aside, or to have the matter remanded or remitted back to the trial judge, motion judge, or administrative decision-maker for a new hearing. The appropriate option will depend on the particulars of the case. For example, where an appellate court applies a correctness standard of review and finds that a legal error was made, it may address the error by applying the law correctly and substituting a new decision. Where the error is such that evidence necessary for the appellate court to make its own determination is unavailable, the court may send the matter back for a new hearing before the initial adjudicator, which may involve additional evidence.
Substantive Relief
In an action, application, or motion, the initiating party typically is seeking some sort of substantive remedy aimed at addressing the wrong alleged. The substantive relief sought should be set out comprehensively at the end of the factum as part of the relief requested.
A full review of the types of remedies available to parties is beyond the scope of this publication. However, types of remedies commonly requested by parties include:
- Declarations of legal rights;
- Monetary remedies, such as damages or disgorgement of profits; and
- Orders requiring someone to do, or refrain from doing something (e.g. injunctions, specific performance).
In requesting substantive relief, parties should be mindful of any limitations of the forum. For example, parties to a proceeding in small claims court will be limited in the amount of damages they may seek. Likewise, administrative bodies may be empowered to provide only specific remedies as set out in their enabling legislation. Parties should be familiar with the remedies available to them in the particular forum of the proceeding.
Alternative Relief
In some cases, where a party is unable to obtain their primary relief sought, there may be other forms of relief they intend to seek as a backup (or second, third, or fourth…) option. For example, a party’s primary relief sought may be an order for specific performance of a real estate contract; if they are unsuccessful in obtaining an order for specific performance, they may wish to seek damages for breach in the alternative. Any such alternative requests for relief should be set out as requests in the alternative in the final substantive section of the factum.
Alternative relief may include certain incidental orders, where required as a matter of practicality or implementation. For example, consider the case of a government respondent to an application seeking a declaration of unconstitutionality of legislation, or an appeal of such an application. The primary relief sought may be an Order dismissing the application or appeal. In the alternative, the respondent may seek, in the event the legislation is struck down either at first instance or on appeal, an Order suspending any declaration of invalidity for a period of time to allow the government to fill the resulting legislative void. Parties should consider whether such incidental orders may be necessary when formulating their requests for relief.
Costs
A party should determine how it seeks to approach costs in the event it is successful in the proceeding and identify that proposed approach as part of the relief requested. Common costs requests include:
- A costs order;
- Costs in the cause (if being requested in the context of an interim step or motion); or
- A no-costs order (i.e. each party bears its own costs).
Where costs are being sought, a party generally does not need to specify the quantum in its factum. Rather, parties need only identify that they are seeking costs, and in the case of an action, application, or motion, the scale of costs sought (i.e. partial indemnity, substantial indemnity, or full indemnity). Typically, the precise amount sought is identified in a bill of costs or costs outline at the time of the hearing. Alternatively, and frequently in the case of appeals, parties may agree on an amount of costs to be awarded to the successful party, which amount usually is provided to the court at the conclusion of the hearing.
In seeking costs, parties should be aware of any requirements or guidelines of particular jurisdictions or courts with respect to costs quanta. For example, the Ontario Divisional Court has specified that, absent exceptional circumstances, the normal award of costs on a motion for leave to appeal will be in the range of $5,000 (inclusive of disbursements and HST).[1]
[1] 2265535 Ontario Inc. v Vijayant Sood, 2017 ONSC 4738 at para 5 (Div Ct).
