COMMENCEMENT OF PROCEEDINGS
RULE 14 ORIGINATING PROCESS
HOW PROCEEDINGS COMMENCED
By Issuing Originating Process
14.01 (1) All civil proceedings shall be commenced by the issuing of an originating process by the registrar of the court in which the proceeding is to be commenced, except where a statute provides otherwise and as provided in subrules (2) and (2.1).
Exceptions
(2) A counterclaim or counterpetition that is only against persons who are already parties to the main action, and a crossclaim, shall be commenced by the delivery of the pleading containing the counterclaim, counterpetition or crossclaim, and the pleading need not be issued.
(2.1) An application for a certificate of appointment of estate trustee under Rule 74 need not be issued.
Where Leave Required
(3) Where leave to commence a proceeding is required, it shall be obtained by motion.
(4) A party may rely on a fact that occurs after the commencement of a proceeding, even though the fact gives rise to a new claim or defence, and, if necessary, may move to amend an originating process or pleading to allege the fact.
PROCEEDINGS BY ACTION AS GENERAL RULE
14.02 Every proceeding in the court shall be by action, except where a statute or these rules provide otherwise.
ACTIONS - BY STATEMENT OF CLAIM OR NOTICE OF ACTION
Statement of Claim
14.03 (1) The originating process for the commencement of an action is a statement of claim (Form 14A (general) or 14B (mortgage actions)), except as provided by,
(a) subrule (2) (notice of action);
(b) rule 14.04 (divorce petition);
(c) rule 27.03 (counterclaim against person not already a party);
(d) subrule 29.02(1) (third party claim); and
(e) rule 29.11 (fourth and subsequent party claims).
Notice of Action
(2) Where there is insufficient time to prepare a statement of claim, an action other than a divorce action may be commenced by the issuing of a notice of action (Form 14C) that contains a short statement of the nature of the claim.
(3) Where a notice of action is used, the plaintiff shall file a statement of claim (Form 14D) within thirty days after the notice of action is issued, and no statement of claim shall be filed thereafter except with the written consent of the defendant or with leave of the court obtained on notice to the defendant.
(4) The notice of action shall not be served separately from the statement of claim.
Information for Court Use
(4.1) Form 14F (Information for court use) shall be filed together with Form 14A, 14B or 14C, as the case may be.
Statement of Claim may Alter or Extend Claim
(5) In an action commenced by the issuing of a notice of action, the statement of claim may alter or extend the claim stated in the notice of action.
ORDINARY AND SIMPLIFIED PROCEDURE
14.03.1 The simplified procedure set out in Rule 76 shall be used in actions to which subrule 76.02(1) applies, and may be used in other actions in accordance with subrule subrule 76.02(2); otherwise, the ordinary procedure set out in these Rules shall be used in all proceedings.
DIVORCE ACTIONS - BY PETITION
14.04 The originating process for the commencement of a divorce action is a petition for divorce (Form 69A or 69B), except as provided by subrule 69.09(6) (counterpetition against person not already a party (Form 69G)).
APPLICATIONS - BY NOTICE OF APPLICATION
Notice of Application
14.05 (1) The originating process for the commencement of an application is a notice of application (Form 14E, 68A, 73A, 74.44 05 75.5).
Application under Statute
(2) A proceeding may be commenced by an application to the Superior Court of Justice or to a judge of that court, if a statute so authorizes.
Application under Rules
(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,
(a) the opinion, advice or direction of the court on a question affecting the rights of a person in respect of the administration of the estate of a deceased person or the execution of a trust;
(b) an order directing executors, administrators or trustees to do or abstain from doing any particular act in respect of an estate or trust for which they are responsible;
(c) the removal or replacement of one or more executors, administrators or trustees, or the fixing of their compensation;
(d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution;
(e) the declaration of an interest in or charge on land, including the nature and extent of the interest or charge or the boundaries of the land, or the settling of the priority of interests or charges;
(f) the approval of an arrangement or compromise or the approval of a purchase, sale, mortgage, lease or variation of trust;
(g) an injunction, mandatory order or declaration or the appointment of a receiver or other consequential relief when ancillary to relief claimed in a proceeding properly commenced by a notice of application;
(g.1) for a remedy under the Canadian Charter of Rights and Freedoms; or
(h) in respect of any matter where it is unlikely that there will be any material facts in dispute.
TITLE OF PROCEEDING
14.06 (1) Every originating process shall contain a title of the proceeding setting out the names of all the parties and the capacity in which they are made parties, if other than their personal capacity.
(2) In an action other than a divorce action, the title of the proceeding shall name the party commencing the action as the plaintiff and the opposite party as the defendant.
(3) In an application, the title of the proceeding shall name the party commencing the application as the applicant and the opposite party, if any, as the respondent and the notice of application shall state the statutory provision or rule, if any, under which the application is made.
Exception
(4) Subrules (1), (2) and (3) do not apply to proceedings under rules 74 and 75.
HOW ORIGINATING PROCESS ISSUED
14.07 (1) An originating process is issued by the registrar's act of dating, signing and sealing it with the seal of the court and assigning to it a court file number.
(2) A copy of the originating process shall be filed in the court file when it is issued.
(3) Where the originating process is filed electronically, it is issued when it is accepted by the court computer system and a court fIle number is assigned to it.
TIME FOR SERVICE IN ACTIONS
14.08 (1) Where an action is commenced by a statement of claim, the statement of claim shall be served within six months after it is issued.
(2) Where an action is commenced by a notice of action, the notice of action and the statement of claim shall be served together within six months after the notice of action is issued.
Dismissal by Registrar
(3) Sub rules (1) and (2) are subject to rules 76.06 and 77.08, which provide that in certain circumstances the registrar shall make an order dismissing the action as abandoned.
STRIKING OUT OR AMENDING
14.09 An originating process that is not a pleading may be struck out or amended in the same manner as a pleading.
DISMISSAL OF ACTION WHERE DEFENDANT PAYS CLAIM
14.10 (1) Where the plaintiffs claim is for money only, a defendant, on paying within the time prescribed for delivery of a defence or at any time before being noted in default, the amount of the plaintiff's claim and the amount claimed for costs, may on motion have the court dismiss the action.
(2) A defendant considers the amount claimed for costs to be excessive may pay, within the time prescribed for delivery of a defence or at any time before being noted in default, the amount of the plaintiff s claim and the sum of $400 for costs, and the court on motion may dismiss the action and may fix and order payment of the plaintiff's costs or may order payment of the plaintiff s costs as assessed under Rule 58.
RULE 15 REPRESENTATION BY SOLICITOR
WHERE SOLICITOR IS REQUIRED
15.01 (1) A party to a proceeding who is under disability or acts in a representative capacity shall be represented by a solicitor.
(2) A party to a proceeding that is a corporation shall be represented by a solicitor, except with leave of the court.
(3) Any other party to a proceeding may act in person or be represented by a solicitor.
DECLARATION OF AUTHORITY TO COMMENCE PROCEEDING
Demand for Declaration by Solicitor
15.02 (1) A solicitor who is named in an originating process as the solicitor for the plaintiff or applicant shall, forthwith on receipt of a demand in writing from any person who has been served with the originating process, declare in writing whether he or she commenced or authorized the commencement of the proceeding or whether his or her client authorized the commencement of the proceeding. and where the solicitor fails to comply with the demand,
If the solicitor fails to deliver a notice in accordance with the request, the court may
(a) order the solicitor to do so ;
(b) stay the proceeding; and
(c) order the solicitor of the proceeding.
Proceeding Commenced without Solicitor's Authority
(3) If a solicitor declares that he or she did not commence or authorize the commencement of the proceeeding, the court may, on motion, stay or dismiss the proceeding
Proceeding Commenced without Client's Authority
(3) Where a solicitor has commenced a proceeding without the authority of his or her client, the court on motion may stay or dismiss the proceeding and order the solicitor to pay the costs of the proceeding.
Where Proceeding Stayed
(4) Where a proceeding is stayed under this rule, no further step may be taken without leave of the court.
CHANGE IN REPRESENTATION BY PARTY
Notice of Change of Solicitor
15.03 (1) A party who has a solicitor of record may change the solicitor of record by serving on the solicitor and every other party and filing, with proof of service, a notice of change of solicitor (Form 15A) giving the name, address and telephone number of the new solicitor.
Notice of Appointment of Solicitor
(2) A party acting in person may appoint a solicitor of record by serving on every other party and filing, with proof of service, a notice of appointment of solicitor (Form 15B) giving the name, address and telephone number of the solicitor of record.
Notice of Intention to Act in Person
(3) Subject to subrule 15.01(1) or (2), a party who has a solicitor of record may elect to act in person by serving on the solicitor and every other party and filing, with proof of service, a notice of intention to act in person (Form 15C) that sets out the party's address for service and telephone number.
Claim for Solicitor's Lien
(4) A party may move, on notice to the party's former solicitor of record, for an order determining whether and to what extent the solicitor has a right to a solicitor's lien.
(5) In the order, the court may impose such terms as are just in connection with the lien and its discharge.
MOTION BY SOLICITOR FOR REMOVAL AS SOLICITOR OF RECORD
Client to be Served
15.04 (1) A solicitor may move, on notice to his or her client, for an order removing him or her as solicitor of record.
(2) Service of a notice of motion for the removal of a solicitor from the record and service of the order shall be made on the client personally or by an alternative to personal service under rule 16.03 or by mailing a copy to the client at his or her last known address.
Party under Disability
(3) Where the party for whom the solicitor is acting is under disability, the notice of motion and the order shall also be served on the litigation guardian and,
(a) where the party is a minor, on the Children's Lawyer; and
(b) in any other case, on the Public Guardian and Trustee.
Order to Contain Client's Address
(4) The order removing a solicitor from the record shall include,
(a) the client's last known addres or the address for service if different;
the client's telephone number and fax number, if any, unles the court orders otherwise; and
(b) if the client is a corporation, the text of subrules (6) and (7).
Proof of Service of Order to be Filed
(5) Proof of service of the order shall be filed forthwith after it is served.
Corporations
(6) A client that is a corporation shall, within 30 days after being served with the order removing the solicitor from the record, (amended Reg 194, Dec. 28, 1996)
(a) appoint a new solicitor of record by serving a notice under subrule 15.03(2); or
(b) obtain and serve an order under subrule 15.01(2) granting it leave to be represented by a person other than a solicitor.
(7) If a corporation fails to comply with subrule (6),
(a) the court may dismiss its proceedings or strike out its defence; and
(b) in an appeal
(i) a judge of the appelate court may, on motion, dismiss the corporation's appeal or
(ii) the court hearing the appeal may deny it the right to be heard.
DUTY OF SOLICITOR OF RECORD
15.05 A solicitor of record shall act as and remains the solicitor of record for his or her client until,
(a) the client delivers a notice under rule 15.03; or
(b) an order removing the solicitor from the record has been entered, served on the client and every other party and, where required by subrule 15.04(3), in accordance with that subrule, and filed with proof of service.
WHERE A SOLICITOR OF RECORD HAS CEASED TO PRACTISE
15.06 Where the solicitor of record for a party has ceased to practise law, and the party for whom the solicitor acted has not served a notice under rule 15.03, any other party may serve a document on the party by mailing a copy to the party's last known address, or may move for directions.