On other occasions, I have seen and expressed – both orally and in handwritten endorsements – concerns about the approach adopted on matters such as these. Since this motion follows the same path, I am hopeful a more formal endorsement may have the effect a less forceful approach did not.
 The court must be vigilant to ensure that orders are not made without notice easily. The moving party must satisfy the court that all procedural and substantive requirements have been met. Even then, the terms of the order should be carefully tailored to ensure that rights are not trampled. Its terms and duration should be no more than is required to ensure that the court can effectively and fairly adjudicate the ultimate dispute.
So begin the sobering reasons of Justice Grace in Paccar Financial Services Ltd. v. 2026125 Ontario Limited, 2014 ONSC 456 (CanLII),. a cautionary tale of the perils of moving without notice when notice is not only advisable, but mandatory. It also serves as an object lesson in the vital importance of formulating a sound litigation strategy, including filing a factum that cites not only the applicable procedural rules, but also the cases upon which one intends to rely.
The plaintiff’s motion under Rule 44 of the Rules of Civil Procedure. would appear to most practicing commercial litigation as relatively straightforward. The problem identified by Grace, J. is that plaintiff’s counsel failure to follow basic procedural requirements:
 Rule 44 establishes a number of requirements. For example, an affidavit filed in support of a motion for interim recovery of personal property must contain listed information. Rule 44.01(2) addresses the issue of service in these terms:
The notice of motion shall be served on the defendant unless the court is satisfied that there is reason to believe that the defendant may improperly attempt to prevent recovery of possession of the property or that, for any other sufficient reason, the order should be made without notice.
 If a motion is made under Rule 44 without notice, the court may make an interim order. Rule 44.03(2) provides in part:
On a motion for an interim order for the recovery of possession of personal property made without notice to the defendant, the court may,
(a)…direct the sheriff to take and detain the property for a period of ten days after service of the interim order on the defendant before giving it to the plaintiff… [Italics added]
 I noted that the draft order provided by Paccar’s counsel contained no temporal limitation. It did not comply with Rule 44 and importantly if signed, completely obliterated the rights of a party given no voice.
 Furthermore, rule 44.03(2) clearly contemplates that an order for interim recovery of personal property will be enforced by the sheriff. That comes as no surprise. Section 141(1) of the CJA provides that the court’s orders arising out of a civil proceeding shall be directed to the sheriff for enforcement in Ontario unless a statute provides otherwise.
Although moving party’s counsel also relied upon s. 67 of the Personal Property Security Act, R.S.O. 1990, c. P.10 (“PPSA”), which empowers a judge to “grant a range of orders at the request of, among others, a secured party ‘[u]pon application’. ” Since the proceeding was commenced by way of a notice of action, it too failed to follow the correct procedure.
Justice Grace’s consternation is evident:
 Those differences are not cosmetic. By way of example only, an affidavit filed in support of a motion may contain statements of the deponent’s information and belief. An affidavit filed in support of an application must confine such statements “to facts that are not contentious”: see rules 39.01(4) and (5). Much of the solicitor’s affidavit in this case is based on information and belief. In paragraph 11 of his affidavit, the solicitor deposed:
I do verily believe that the acts of each of the Defendants are intentional and designed to deprive the Plaintiff of the Equipment and convert same to their own use.
 On a motion under Rule 44, the general rule applicable to facta applies. A party may file a factum but is not obligated to do so: rule 37.10(6). On an application, a factum is required: rule 38.09(1) (a). While, in my view, even on motions counsel should file copies of provisions of statutes that are not included within publications containing the Rules, the importance of a factum in a case like this should be obvious. The PPSA is not referenced on a daily basis on dockets in this region. I suspect that is so elsewhere in Ontario with the possible exception of the Commercial List.
The learned judge also expresses dismay over the lack of notice:
 One would have thought that an inquiry would have been made before a motion was brought without notice. One would have thought that the duty to provide full and frank disclosure necessitated disclosure of the existence of a lawyer who was believed to represent 125 in a piece of litigation raised by Paccar in support of its position before me. One would have thought that, out of an abundance of caution if nothing else, that lawyer would have been given notice – even if abridged – of the January 14, 2014 attendance. One would have thought that full and accurate information would have been volunteered to the court.
 After raising the issue, I was told that a copy of Paccar’s motion record had been sent to 125’s lawyer after the first attendance. At my request, counsel filed a copy of the January 16, 2014 e-mail enclosing same and advising 125’s lawyer of the January 17, 2014 return date.
 For now I will go no further than expressing my profound disappointment. Advocacy has boundaries. They were not respected. Some notice could and should have been provided. The solicitor’s affidavit on this motion was sworn on January 7, 2014, the very day that the same lawyer was writing to 125’s lawyer in respect of the CLE matter.
 While my concerns with the lack of notice have overtaken my concerns with the procedure Paccar adopted, I will address the procedural issues too.
Ultimately, the motion failed for a variety of procedural deficiencies, the most telling of which was that interim relief was sought, yet no return date for the defendant was provided. After telegraphing on what terms the court may be willing to entertain an application under s. 67 of the PPSA, Grace J. ends with this parting shot:
 … Whirlwind justice is rarely just. Paccar’s current motion is flawed in every respect. It is dismissed without prejudice to the right of Paccar to start afresh.
Back to the drawing board.