DISPOSITION WITHOUT TRIAL
RULE 19 DEFAULT PROCEEDINGS
NOTING DEFAULT
Where No Defence Delivered
19.01 (1) Where a defendant fails to deliver a statement of defence within the prescribed time, the plaintiff may, on filing proof of service of the statement of claim, require the registrar to note the defendant in default.
(1.1) Where a plaintiff files electronically a requisition for the noting in default of a defendant and the registrar notes the defendant in default, the registrar shall send the plaintiff confirmation of the noting in default.
Where Defence Struck Out
(2) Where the statement of defence of a defendant has been struck out,
(a) without leave to deliver another; or
(b) with leave to deliver another, and the defendant has failed to deliver another within the time allowed,
the plaintiff may, on filing a copy of the order striking out the statement of defence, require the registrar to note the defendant in default.
Noting of Default by Co-defendant
(3) Where a plaintiff has failed to require the registrar to note a defendant in default, the court on motion of any other defendant who has delivered a statement of defence, on notice to the plaintiff, may order the registrar to note the other defendant in default.
Party under Disability
(4) If a party to an action is under disability, the party may be noted in default only with leave of a judge obtained on motion under rule 7.07.
Late Delivery of Defence
(5) A defendant may deliver a statement of defence at any time before he or she has been noted in default under this rule.
CONSEQUENCES OF NOTING DEFAULT
19.02 (1) A defendant who has been noted in default,
(a) is deemed to admit the truth of all allegations of fact made in the statement of claim; and
(b) shall not deliver a statement of defence or take any other step in the action, other than a motion to set aside the noting of default or any judgment obtained by reason of the default, except with leave of the court or the consent of the plaintiff.
(2) Despite any other rule, where a defendant has been noted in default, any step in the action that requires the consent of a defendant may be taken without the consent of the defendant in default.
(3) Despite any other rule, a defendant who has been noted in default is not entitled to notice of any step in the action and need not be served with any document in the action, except where the court orders otherwise or where a party requires the personal attendance of the defendant, and except as provided in,
(a) subrule 26.04(3) (amended pleading);
(b) subrule 27.04(3) (counterclaim);
(c) subrule 28.04(2) (crossclaim);
(d) subrule 29.11(2) (fourth or subsequent party claim);
(e) subrule 54.08(1) (motion for confirmation of report on reference);
(f) subrule 54.09(1) (report on reference);
(g) subrule 54.09(3) (motion to oppose confirmation of report on reference);
(h) subrule 55.02(2) (notice of hearing for directions on reference);
(i) clause 64.03(8)(a) (notice of taking of account in foreclosure action);
(j) subrule 64.03(24) (notice of reference in action converted from foreclosure to sale);
(k) subrule 64.04(7) (notice of taking of account in sale action);
(l) subrule 64.06(8) (notice of reference in mortgage action);
(m) subrule 64.06(17) (report on reference in mortgage action);
(n) subrule 64.06(21) (notice of change of account); and
(o) subrule 69.10(3) (counterpetition);
(p) subrules 69.16(1) (notice of Children's Lawyer's intention to investigate and report) and (5) (Children's Lawyer's report).
SETTING ASIDE THE NOTING OF DEFAULT
19.03 (1) The noting of default may be set aside by the court on such terms as are just.
(2) Where a defendant delivers a statement of defence with the consent of the plaintiff under clause 19.02(1)(b), the noting of default against the defendant shall be deemed to have been set aside.
BY SIGNING DEFAULT JUDGMENT
Where Available
19.04 (1) Where a defendant has been noted in default, the plaintiff may require the registrar to sign judgment against the defendant in respect of a claim for,
(a) a debt or liquidated demand in money, including interest if claimed in the statement of claim (Form 19A);
(b) the recovery of possession of land (Form 19B);
(c) the recovery of possession of personal property (Form 19C); or
(d) foreclosure, sale or redemption of a mortgage (Forms 64B to 64D, 64G to 64K and 64M).
Signing Default Judgment Electronically
(1.1) Where a plaintiff files electronically a requisition for the noting in default of a defendant and the registrar signs judgment against the defendant, the registrar shall send the plaintiff confirmation of the signing of the default judgment.
Requisition for Default Judgment
(2) Before the signing of default judgment, the plaintiff shall file with the registrar a requisition for default judgment (Form 19D),
(a) stating that the claim comes within the class of cases for which default judgment may properly be signed;
(b) stating whether there has been any partial payment of the claim and setting out the date and amount of any partial payment;
(c) where the plaintiff has claimed prejudgment interest in the statement of claim, setting out how the interest is calculated;
(d) where the plaintiff has claimed postjudgment interest in the statement of claim at a rate other than as provided in section 129 of the Courts of Justice Act, 1984, setting out the rate; and
(e) stating whether the plaintiff wishes costs to be fixed by the registrar or assessed.
Registrar may Decline to Sign Default Judgment
(3) The registrar may decline to sign default judgment, and the plaintiff may make a motion to the court for default judgment, where the registrar is uncertain,
(a) whether the claim comes within the class of cases for which default judgment may properly be signed; or
(b) of the amount or rate that is properly recoverable for prejudgment or postjudgment interest,
(3.1) If the registrar declines to sign default judgment the plaintiff may,
(a) move before a judge for judgment under rule 19.05; or
(b) in the case of a claim referred to in subrule (1), make a motion to the court for default judgment.
Where Claim Partially Satisfied
(4) Where the claim has been partially satisfied, the default judgment shall be confined to the remainder of the claim.
Postjudgment Interest
(5) Where the registrar signs default judgment and the plaintiff has claimed postjudgment interest in the statement of claim at a rate other than as provided in section 129 of the Courts of Justice Act, 1984, the default judgment shall provide for postjudgment interest at the rate claimed.
Costs
(6) On signing a default judgment, the registrar shall fix the costs under Tariff A to which the plaintiff is entitled against the defendant in default and shall include the costs in the judgment unless,
(a) the judgment directs a reference; or
(b) the plaintiff states in the requisition that he or she wishes to have the costs assessed,
in which case the judgment shall include costs to be determined on the reference or on assessment.
BY MOTION FOR JUDGMENT
19.05 (1) Where a defendant has been noted in default, the plaintiff may move before a judge for judgment against the defendant on the statement of claim in respect of any claim for which default judgment has not been signed.
(2) A motion for judgment under subrule (1) shall be supported by evidence given by affidavit if the claim is for unliquidated damages, a divorce or a declaration of the invalidity of a marriage.
(3) On a motion for judgment under subrule (1), the judge may grant judgment, dismiss the action or order that the action proceed to trial and that oral evidence be presented.
(4) Where an action proceeds to trial, a motion for judgment on the statement of claim against a defendant noted in default may be made at the trial.
FACTS MUST ENTITLE PLAINTIFF TO JUDGMENT
19.06 A plaintiff is not entitled to judgment on a motion for judgment or at trial merely because the facts alleged in the statement of claim are deemed to be admitted, unless the facts entitle the plaintiff to judgment.
EFFECT OF DEFAULT JUDGMENT
19.07 A judgment obtained against a defendant who has been noted in default does not prevent the plaintiff from proceeding against the same defendant for any other relief.
SETTING ASIDE DEFAULT JUDGMENT
19.08 (1) A judgment against a defendant who has been noted in default that is signed by the registrar or granted by the court on motion under rule 19.04 may be set aside or varied by the court on such terms as are just.
(2) A judgment against a defendant who has been noted in default that is obtained on a motion for judgment on the statement of claim under rule 19.05 or that is obtained after trial may be set aside or varied by a judge on such terms as are just. .
(3) On setting aside a judgment under subrule (1) or (2) the court or judge may also set aside the noting of default under rule 19.03.
APPLICATION TO COUNTERCLAIMS, CROSSCLAIMS AND THIRD PARTY
CLAIMS
19.09 Rules 19.01 to 19.08 apply, with necessary modifications, to counterclaims, crossclaims and third party claims, subject to rules 28.07 (default of defence to crossclaim) and 29.07 (default of defence to third party claim).
RULE 20 SUMMARY JUDGMENT
WHERE AVAILABLE
To Plaintiff
20.01 (1) A plaintiff may, after the defendant has delivered a statement of defence or served a notice of motion, move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim.
(2) The plaintiff may move, without notice, for leave to serve a notice of motion for summary judgment together with the statement of claim, and leave may be given where special urgency is shown, subject to such directions as are just.
To Defendant
(3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.
AFFIDAVITS
20.02 An affidavit for use on a motion for summary judgment may be made on information and belief as provided in subrule 39.01(4), but on the hearing of the motion an adverse inference may be drawn, if appropriate, from the failure of a party to provide the evidence of persons having personal knowledge of contested facts.
FACTUMS REQUIRED
20.03 On a motion for summary judgment, each party shall serve on every other party to the motion a factum consisting of a concise argument stating the facts and law relied on by the party, and file it, with proof of service, in the court office where the motion is to be heard at least two days before the hearing.
DISPOSITION OF MOTION
General
20.04 (1) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest on the mere allegations or denials of his or her pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue for trial.
(2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue for trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
Only Genuine Issue Is Amount
(3) Where the court is satisfied that the only genuine issue is the amount to which the moving party is entitled, the court may order a trial of that issue or grant judgment with a reference to determine the amount.
Only Genuine Issue Is Question Of Law
(4) Where the court is satisfied that the only genuine issue is a question of law, the court may determine the question and grant judgment accordingly, but where the motion is made to a master, it shall be adjourned to be heard by a judge.
Only Claim Is For An Accounting
(5) Where the plaintiff is the moving party and claims an accounting and the defendant fails to satisfy the court that there is a preliminary issue to be tried, the court may grant judgment on the claim with a reference to take the accounts.
WHERE A TRIAL IS NECESSARY
Powers of Court
20.05 (1) Where summary judgment is refused or is granted only in part, the court may make an order specifying what material facts are not in dispute and defining the issues to be tried and may order that the action proceed to trial by being,
(a) placed forthwith, or within a specified time, on a list of cases requiring speedy trial; or
(b) set down in the normal course, or within a specified time, for trial.
(2) At the trial the facts so specified shall be deemed to be established and the trial shall be conducted accordingly, unless the trial judge orders otherwise to prevent injustice.
Imposition of Terms
(3) Where an action is ordered to proceed to trial, in whole or in part, the court may give such directions or impose such terms as are just, including an order,
(a) for payment into court of all or part of the claim;
(b) for security for costs; and
(c) that the nature and scope of discovery, if any, be limited to matters not covered by the affidavits filed on the motion and any cross-examinations on them, and that the affidavits and cross-examinations may be used at trial in the same manner as an examination for discovery.
Failure to Comply with Order
(4) Where a party fails to comply with an order for payment into court or for security for costs, the court on motion of the opposite party may dismiss the action, strike out the statement of defence or make such other order as is just.
(5) Where on a motion under subrule (4) the statement of defence is struck out, the defendant shall be deemed to be noted in default.
COSTS SANCTIONS FOR IMPROPER USE OF RULE
Where Motion Fails
20.06 (1) Where, on a motion for summary judgment, the moving party obtains no relief, the court shall fix the opposite party's costs of the motion on a substantial indemnity basis and order the moving party to pay them forthwith unless the court is satisfied that the making of the motion, although unsuccessful, was nevertheless reasonable.
Where A Party Has Acted In Bad Faith
(2) Where it appears to the court that a party to a motion for summary judgment has acted in bad faith or primarily for the purpose of delay, the court may fix the costs of the motion on a substantial indemnity basis and order the party to pay them forthwith.
EFFECT OF SUMMARY JUDGMENT
20.07 A plaintiff who obtains summary judgment may proceed against the same defendant for any other relief.
STAY OF EXECUTION
20.08 Where it appears that the enforcement of a summary judgment ought to be stayed pending the determination of any other issue in the action or a counterclaim, crossclaim or third party claim, the court may so order on such terms as are just.
APPLICATION TO COUNTERCLAIMS, CROSSCLAIMS AND THIRD PARTY
CLAIMS
20.09 Rules 20.01 to 20.08 apply, with necessary modifications, to counterclaims, crossclaims and third party claims.
RULE 21 DETERMINATION OF AN ISSUE BEFORE TRIAL
WHERE AVAILABLE
To Any Party on a Question of Law
21.01 (1) A party may move before a judge,
(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly.
(2) No evidence is admissible on a motion,
(a) under clause (1)(a), except with leave of a judge or on consent of the parties;
(b) under clause (1)(b).
To Defendant
(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,
Jurisdiction
(a) the court has no jurisdiction over the subject matter of the action;
Capacity
(b) the plaintiff is without legal capacity to commence or continue the action or the defendant does not have the legal capacity to be sued;
Another Proceeding Pending
(c) another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter; or
Action Frivolous, Vexatious or Abuse of Process
(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,
and the judge may make an order or grant judgment accordingly.
MOTION TO BE MADE PROMPTLY
21.02 A motion under rule 21.01 shall be made promptly and a failure to do so may be taken into account by the court in awarding costs.
FACTUMS REQUIRED
21.03 On a motion under rule 21.01, each party shall serve on every other party to the motion a factum
consisting of a concise argument stating the facts and law relied on by the party, and file it, with proof of service, in the court office where the motion is to be heard at least two days before the hearing.
WHERE AVAILABLE
22.01 (1) Where the parties to a proceeding concur in stating a question of law in the form of a special case for the opinion of the court, any party may move before a judge to have the special case determined.
(2) Where the judge is satisfied that the determination of the question may dispose of all or part of the proceeding, substantially shorten the hearing or result in a substantial saving of costs, the judge may hear and determine the special case.
FACTUMS REQUIRED
22.02 On a motion under rule 22.02, each party shall serve on every other party to the motion a factum consisting of a concise argument stating the facts and law relied on by the party, and file it, with proof of service, in the court office where the motion is to be heard at least two days before the hearing.
REMOVAL INTO COURT OF APPEAL
22.03 (1) A motion under rule 22.01 may be made to a judge of the Court of Appeal for leave to have a special case determined in the first instance by that court and the judge may grant leave where subrule 22.01(2) is satisfied and where the special case raises an issue in respect of which,
(a) there are conflicting decisions of judges in Ontario and there is no decision of an appellate court in Ontario;
(b) there is a conflict between decisions of an appellate court in Ontario and an appellate court of another province, or between decisions of appellate courts of two or more other provinces; or
(c) one of the parties seeks to establish that a decision of an appellate court in Ontario should not be followed.
(2) A judge who grants leave under subrule (1) may give directions in respect of the time and form in which the case is to be listed for hearing and the exchange and filing of factums, and subject to any such directions, Rule 61 (appeals to an appellate court) applies with necessary modifications.
FORM OF SPECIAL CASE
22.04 A special case (Form 22A) shall,
(a) set out concisely the material facts, as agreed on by the parties, that are necessary to enable the court to determine the question stated;
(b) refer to and include a copy of any documents that are necessary to determine the question;
(c) set out the relief sought, as agreed on by the parties, on the determination of the question of law; and
(d) be signed by the solicitors for the parties.
HEARING OF SPECIAL CASE
22.05 (1) On the hearing of a special case the court may draw any reasonable inference from the facts agreed on by the parties and documents referred to in the special case.
(2) On the determination of the question of law the court may make an order or grant judgment accordingly.
RULE 23 DISCONTINUANCE AND WITHDRAWAL
DISCONTINUANCE BY PLAINTIFF
23.01 (1) A plaintiff may discontinue all or part of an action against any defendant,
(a) before the close of pleadings, by serving on all parties who have been served with the statement of claim a notice of discontinuance (Form 23A) and filing the notice with proof of service;
(b) after the close of pleadings, with leave of the court; or
(c) at any time, by filing the consent in writing of all parties.
(2) If a party to an action is under disability, the action may be discontinued by or against the party only with leave of a judge obtained on motion under rule 7.07.1.
EFFECT OF DISCONTINUANCE ON COUNTERCLAIM
23.02 Where an action is discontinued against a defendant who has counterclaimed, the defendant may deliver within thirty days after the discontinuance a notice of election to proceed with the counterclaim (Form 23B), and if the defendant fails to do so, the counterclaim shall be deemed to be discontinued without costs.
EFFECT OF DISCONTINUANCE ON CROSSCLAIM OR THIRD PARTY CLAIM
23.03 (1) Where an action is discontinued against a defendant who has crossclaimed or made a third party claim, the crossclaim or third party claim shall be deemed to be dismissed with costs thirty days after the discontinuance unless the court orders otherwise during the thirty day period.
Effect of deemed dismissal on subsequent action
(2) The deemed dismissal is not a defence to a subsequent action unless the court orders otherwise during the thirty-day period.
EFFECT OF DISCONTINUANCE ON SUBSEQUENT ACTION
23.04 (1) The discontinuance of all or part of an action is not a defence to a subsequent action, unless the order giving leave to discontinue or a consent filed by the parties provides otherwise.
(2) Where a plaintiff has discontinued and is liable for costs of an action, and another action involving the same subject matter is subsequently brought between the same parties to their representatives or successors in interest before payment of the costs of the discontinued action, the court may order a stay of the subsequent action until the costs of the discontinued action have been paid.
COSTS OF DISCONTINUANCE
23.05 Where a plaintiff discontinues an action against a defendant,
(a) the defendant is entitled to the costs of the action; and
(b) where the defendant has made a crossclaim or third party claim that is deemed to be dismissed under rule 23.03, the defendant is entitled to recover from the plaintiff,
(i) the costs payable under rule 23.03, and
(ii) the defendant's own costs of the crossclaim or third party claim,
unless the court orders otherwise.
WITHDRAWAL BY DEFENDANT
23.06 (1) A defendant may withdraw all or part of the statement of defence with respect to any plaintiff at any time by delivering to all parties a notice of withdrawal of defence (Form 23C), but,
(a) where the defendant has crossclaimed or made a third party claim, leave to withdraw must be obtained from the court; and
(b) where the defendant seeks to withdraw an admission in the statement of defence, rule 51.05 (withdrawal of admission) applies.
(2) Where a defendant withdraws the whole of the statement of defence, the defendant shall be deemed to be noted in default.
APPLICATION TO COUNTERCLAIMS, CROSSCLAIMS AND THIRD PARTY
CLAIMS
23.07 Rules 23.01 to 23.06 apply, with necessary modifications, to counterclaims, crossclaims and third party claims.
RULE 24 DISMISSAL OF ACTION FOR DELAY
WHERE AVAILABLE
24.01 (1) A defendant who is not in default under these rules or an order of the court may move to have an action dismissed for delay where the plaintiff has failed,
(a) to serve the statement of claim on all the defendants within the prescribed time;
(b) to have noted in default any defendant who has failed to deliver a statement of defence, within thirty days after the default;
(c) to set the action down for trial within six months after the close of pleadings;
(d) to deliver a notice of readiness for pre-trial conference under subrule 76.08(1); or
(e) to move for leave to restore to a trial list an action that has been struck off the trial list, within thirty days after the action was struck off.
Revocation
(2) On March 11, 2000, subrule (1) is amended by adding "or" at the end of clause (c) and by striking out clause (d).
NOTICE WHERE PLAINTIFF UNDER DISABILITY
24.02 Where the plaintiff is under disability, notice of a motion to dismiss the action for delay shall be served on,
(a) the litigation guardian of the plaintiff; and
(b) on the Children's Lawyer, unless,
(i) the Public Guardian and Trustee is committee of the estate or litigation guardian of the plaintiff, or
(ii) a judge orders otherwise.
EFFECT OF DISMISSAL ON COUNTERCLAIM
24.03 Where an action against a defendant who has counterclaimed is dismissed for delay, the defendant may within thirty days after the dismissal deliver a notice of election to proceed with the counterclaim (Form 23B), and if the defendant fails to do so, the counterclaim shall be deemed to be discontinued without costs.
EFFECT OF DISMISSAL ON CROSSCLAIM OR THIRD PARTY CLAIM
24.04 (1) Unless the court orders otherwise, where an action against a defendant who has crossclaimed or made a third party claim is dismissed for delay,
(a) the crossclaim or third party claim shall be deemed to be dismissed with costs; and
(b) the defendant may recover those costs and his or her own costs of the crossclaim or third party claim from the plaintiff, unless the court orders otherwise.>
Effect of deemed dismissal on subsequent action
(2) The deemed dismissal is not a defence to a subsequent action unless the court order dismissing the action provides otherwise.
EFFECT ON SUBSEQUENT ACTION
24.05 (1) The dismissal of an action for delay is not a defence to a subsequent action unless the order dismissing the action provides otherwise.
(2) Where a plaintiff s action has been dismissed for delay with costs, and another action involving the same subject matter is subsequently brought between the same parties or their representatives or successors in interest before payment of the costs of the dismissed action, the court may order a stay of the subsequent action until the costs of the dismissed action have been paid.
APPLICATION TO COUNTERCLAIMS, CROSSCLAIMS AND THIRD PARTY CLAIMS
24.06 Rules 24.01 to 24.05 apply, with necessary modifications, to counterclaims, crossclaims and third party claims.
Rule 24.1Mandatory Mediation
PURPOSE
24.1.01— This Rule establishes a pilot project for mandatory mediation in case managed actions, in order to reduce cost and delay in litigation and facilitate the early and fair resolution of disputes.
NATURE OF MEDIATION
24.1.02 — In mediation, a neutral third party facilitates communication among the parties to a dispute, to assist them in reaching a mutually acceptable resolution.
DEFINITIONS
24.1.03 In rules 24.1.04 to 24.1.16,
“defence” means,
(a) [Revoked O. Reg. 457/01, s. 5.]
(b) a notice of intent to defend,
(c) a statement of defence, and
(d) a notice of motion in response to an action, other than a motion challenging the court's jurisdiction; (“défense”)
“mediation co-ordinator” means the person designated under rule 24.1.06. (“coordonnateur de la médiation”)
APPLICATION
Scope
24.1.04 (1) This Rule applies to actions that are,
(a) commenced in,
(i) the City of Toronto on or after January 4, 1999,
(ii) The Regional Municipality of Ottawa-Carleton on or after January 4, 1999 but before January 1, 2001,
(iii) the City of Ottawa on or after January 1, 2001, or
(iv) the County of Essex on or after December 31, 2002; and
(b) described in subrule (2).
(2) The actions referred to in clause (1)(b) are,
(a) actions governed by Rule 77 (Civil Case Management); and
(b) actions governed by Rule 76 (Simplified Procedure) and assigned to mandatory mediation by the regional senior judge.
Exceptions, Certain Actions
(2.1) Despite subrules (1) and (2), this Rule does not apply to:
1. An action under the Substitute Decisions Act, 1992 or Part V of the Succession Law Reform Act.
2. An action in relation to a matter that was the subject of a mediation under section 258.6 of the Insurance Act, if the mediation was conducted less than a year before the delivery of the first defence in the action.
Proceedings Against the Crown Act
(3) In an action to which the Proceedings Against the Crown Act applies, if the notice required by section 7 of that Act has not been served, the Crown in right of Ontario is entitled to participate in mediation under this Rule but is not required to do so.
EXEMPTION FROM MEDIATION
24.1.05 The court may make an order on a party's motion exempting the action from this Rule.
MEDIATION CO-ORDINATOR
24.1.06 The Attorney General or his or her delegate may designate a person as mediation co-ordinator for a county named in the Schedule to subrule 24.1.04(1), to be responsible for the administration of mediation in the county under this Rule.
LOCAL MEDIATION COMMITTEES
Establishment
24.1.07 (1) There shall be a local mediation committee in each county named in the Schedule to subrule 24.1.04(1).
Membership
(2) The members of each committee shall be appointed by the Attorney General so as to represent lawyers, mediators, the general public and persons employed in the administration of the courts.
(3) The Chief Justice of the Superior Court of Justice shall appoint a judge to be a member of each committee.
Functions
(4) Each committee shall,
(a) compile and keep current a list of mediator for the purposes of subrule 24.1.08(1), in accordance with guidelines approved by the Attorney General;
(b) monitor the performance of the mediators named in the list;
(c) receive and respond to complaints about mediators named in the list.
(5) In carrying out their functions under subrule (4), committees may add mediators to the list and remove mediators from the list.
MEDIATORS
List of Mediators
24.1.08 (1) The mediation co-ordinator for a county shall maintain a list of mediators for the county, as compiled and kept current by the local mediation committee.
(2) A mediation under this Rule shall be conducted by,
(a) a person chosen by the agreement of the parties from the list for a county;
(b) a person assigned by the mediation co-ordinator under subrule 24.1.09(6) from the list for the county; or
(c) a person who is not named on a list, if the parties consent.
(3) Every person who conducts a mediation under subrule (2), whether named on the list or not; is required to comply with this Rule.
(4) Without limiting the generality of subrule (3), every person who conducts a mediation under subrule (2) shall comply with subrule 24.1.15(1) (mediator's report).
MEDIATION SESSION
Time Limit
24.1.09 (1) A mediation session shall take place within 90 days after the first defence has been filed, unless the court orders otherwise.
Extension or Abridgment of Time
(2) In considering whether to exercise the power conferred by subrule (1), the court shall take into account all the circumstances, including,
(a) the number of parties, the state of the pleadings and the complexity of the issues in the action;
(b) whether a party intends to bring a motion under Rule 20 (Summary Judgment), Rule 21 (Determination of an Issue Before Trial) or Rule 22 (Special Case);
(c) whether the mediation will be more likely to succeed if the 90-day period is extended to allow the parties to obtain evidence under,
(i) Rule 30 (Discovery of Documents),
(ii) Rule 31 (Examination for Discovery),
(iii) Rule 32 (Inspection of Property),
(iv) Rule 33 (Medical Examination), or
(v) Rule 35 (Examination for Discovery by Written Questions); and
(d) whether, given the nature of the case or the circumstances of the parties, the mediation will be more likely to succeed if the 90-day period is extended or abridged.
Postponement
(3) Despite subrule (1), in the case of an action on the standard track, the mediation session may be postponed for up to 60 days if the consent of the parties is filed with the mediation co-ordinator.
Selection of mediator
(4) The parties shall choose a mediator under subrule 24.1.08(2).
(5) Within 30 days after the filing of the first defence, the plaintiff shall file with the mediation co-ordinator a notice (Form 24.1A) stating the mediator's name and the date of the mediation session.
Assignment of Mediator
(6) If the mediation co-ordinator does not, within the times provided, if any, receive an order under subrule (1), a consent under subrule (3), a notice under subrule (5), a mediator's report or a notice that the action has been settled, he or she shall immediately assign a mediator from the list.
(7) The assigned mediator shall immediately fix a date for the mediation session and shall, at least 20 days before that date, serve on every party a notice (Form 24.1B) stating the place, date and time of the session and advising that attendance is obligatory.
(8) The assigned mediator shall provide a copy of the notice to the mediation co-ordinator.
PROCEDURE BEFORE MEDIATION SESSION
Statement of Issues
24.1.10 (1) At least seven days before the mediation session, every party shall prepare a statement in Form 24.1C and provide a copy to every other party and to the mediator.
(2) The statement shall identify the factual and legal issues in dispute and briefly set out the position and interests of the party making the statement.
(3) The party making the statement shall attach to it any documents that the party considers of central importance in the action.
Copy of Pleadings
(4) The plaintiff shall include a copy of the pleadings with the copy of the statement that is provided to the mediator.
Non-Compliance
(5) If it is not practical to conduct a mediation session because a party fails to comply with subrule (1), the mediator shall cancel the session and immediately file with the mediation co-ordinator a certificate of non-compliance (Form 24.1D).
ATTENDANCE AT MEDIATION SESSION
Who is Required to Attend
24.1.11 (1) The parties, and their lawyers if the parties are represented, are required to attend the mediation session unless the court orders otherwise.
Representative of Insurer
(1.1) If an insurer may be liable to satisfy all or part of a judgment in the action or to indemnify or reimburse a party for money paid in satisfaction of all or part of a judgment in the action, a representative of the insurer is also required to attend the mediation session, unless the court orders otherwise.
Authority to Settle
(2) A party who requires another person's approval before agreeing to a settlement shall, before the mediation session, arrange to have ready telephone access to the other person throughout the session, whether it takes place during or after regular business hours.
FAILURE TO ATTEND
Non-Compliance
24.1.12 If it is not practical to conduct a scheduled mediation session because a party fails to attend within the first 30 minutes of the time appointed for the commencement of the session, the mediator shall cancel the session and immediately file with the mediation co-ordinator a certificate of non-compliance (Form 24.1D).
NON-COMPLIANCE
24.1.13(1) When a certificate of non-compliance is filed, the mediation co-ordinator shall refer the matter to a case management master or case management judge.
(2) The case management master or case management judge may convene a case conference under subrule 77.13(1), and may,
(a) establish a timetable for the action;
(b) strike out any document filed by a party;
(c) dismiss the action, if the non-complying party is a plaintiff, or strike out the statement of defence, if that party is a defendant;
(d) order a party to pay costs;
(e) make any other order that is just.
(3) Subrules 77.13(7) and 77.14(9) do not apply to the case conference.
CONFIDENTIALITY
24.1.14 All communications at a mediation session and the mediator's notes and records shall be deemed to be without prejudice settlement discussions.
OUTCOME OF MEDIATION
Mediator's Report
24.1.15 (1) Within 10 days after the mediation is concluded, the mediator shall give the mediation co-ordinator and the parties a report on the mediation.
(2) The mediation co-ordinator for the county may remove from the list maintained under subrule 24.1.08(1) the name of a mediator who does not comply with subrule (1).
Agreement
(3) If there is an agreement resolving some or all of the issues in dispute, it shall be signed by the parties or their lawyers.
(4) If the agreement settles the action, the defendant shall file a notice to that effect,
(a) in the case of an unconditional agreement, within 10 days after the agreement is signed;
(b) in the case of a conditional agreement, within 10 days after the condition is satisfied.
Failure to Comply with Signed Agreement
(5) Where a party to a signed agreement fails to comply with its terms, any other party to the agreement may,
(a) make a motion to a judge for judgment in the terms of the agreement, and the judge may grant judgment accordingly; or
(b) continue the action as if there had been no agreement.
CONSENT ORDER FOR ADDITIONAL MEDIATION SESSION
24.1.16 (1) With the consent of the parties the court may, at any stage in the action, make an order requiring the parties to participate in an additional mediation session.
(2) The court may include any necessary directions in the order.
(3) Rules 24.1.09 to 24.1.15 apply in respect of the additional session, with necessary modifications.
24.1.17 [Revoked O. Reg. 244/01, s. 4.]
PLEADINGS
RULE 25 PLEADINGS IN AN ACTION
PLEADINGS REQUIRED OR PERMITTED
Action Commenced by Statement of Claim or Notice of Action
25.01 (1) In an action commenced by statement of claim or notice of action, pleadings shall consist of the statement of claim (Form 14A, 14B or 14D), statement of defence (Form 18A) and reply (Form 25A), if any.
Counterclaim
(2) In a counterclaim, pleadings shall consist of the counterclaim (Form 27A or 27B), defence to counterclaim (Form 27C) and reply to defence to counterclaim (Form 27D), if any.
Crossclaim
(3) In a crossclaim, pleadings shall consist of the crossclaim (Form 28A), defence to crossclaim (Form 28B) and reply to defence to crossclaim (Form 28C), if any.
Third Party Claim
(4) In a third party claim, pleadings shall consist of the third party claim (Form 29A), third party defence (Form 29B) and reply to third party defence (Form 29C), if any.
Pleading Subsequent to Reply
(5) No pleading subsequent to a reply shall be delivered without the consent of the opposite party or leave of the court.
FORM OF PLEADINGS
25.02 Pleadings shall be divided into paragraphs numbered consecutively, and each allegation shall, so far as is practical, be contained in a separate paragraph.
SERVICE OF PLEADINGS
Who is to be Served
25.03 (1) Every pleading shall be served,
(a) initially on every opposite party and on every other party who has delivered a pleading or a notice of intention to defend in the main action or in a counterclaim, crossclaim or third or subsequent party claim in the main action; and
(b) subsequently on every other party forthwith after the party delivers a pleading or a notice of intention to defend in the main action or in a counterclaim, crossclaim or third or subsequent party claim in the main action.
Service on Added Parties
(2) Where a person is added as a party to an action, the party doing so shall serve on the added party all the pleadings previously delivered in the main action and in any counterclaim, crossclaim or third or subsequent party claim in the main action, unless the court orders otherwise.
Where Personal Service Not Required
(3) Where a pleading is an originating process, personal service on parties other than an opposite party is not required.
TIME FOR DELIVERY OF PLEADINGS
Statement of Claim
25.04 (1) The time for service of a statement of claim is prescribed by rule 14.08.
Statement of Defence
(2) The time for delivery of a statement of defence is prescribed by rule 18.01.
Reply
(3) A reply, if any, shall be delivered within ten days after service of the statement of defence except where the defendant counterclaims, in which case a reply and defence to counterclaim, if any, shall be delivered within twenty days after service of the statement of defence and counterclaim.
In a Counterclaim
(4) The time for delivery of pleadings in a counterclaim is prescribed by Rule 27.
In a Crossclaim
(5) The time for delivery of pleadings in a crossclaim is prescribed by Rule 28.
In a Third Party Claim
(6) The time for delivery of pleadings in a third party claim is prescribed by Rule 29.
CLOSE OF PLEADINGS
25.05 Pleadings in an action are closed when,
(a) the plaintiff has delivered a reply to every defence in the action or the time for delivery of a reply has expired; and
(b) every defendant who is in default in delivering a defence in the action has been noted in default.
RULES OF PLEADING--APPLICABLE TO ALL PLEADINGS
Material Facts
25.06 (1) Every pleading shall contain a concise statement of the material facts on which the party relies for his or her claim or defence, but not the evidence by which those facts are to be proved.
Pleading Law
(2) A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded.
Condition Precedent
(3) Allegations of the performance or occurrence of all conditions precedent to the assertion of a claim or defence of a party are implied in the party's pleading and need not be set out, and where the opposite party intends to contest the performance or occurrence of a condition precedent, the opposite party shall specify in his or her pleading the condition and its non-performance or non-occurrence.
Inconsistent Pleading
(4) A party may make inconsistent allegations in a pleading where the pleading makes it clear that they are being pleaded in the alternative.
(5) An allegation that is inconsistent with an allegation made in a party's previous pleading or that raises a new ground of claim shall not be made in a subsequent pleading but by way of amendment to the previous pleading.
Notice
(6) Where notice to a person is alleged, it is sufficient to allege notice as a fact unless the form or a precise term of the notice is material.
Documents or Conversations
(7) The effect of a document or the purport of a conversation, if material, shall be pleaded as briefly as possible, but the precise words of the document or conversation need not be pleaded unless those words are themselves material.
Nature of Act or Condition of Mind
(8) Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred. (April 1996 O. Reg 61/96)
Claim for Relief
(9) Where a pleading contains a claim for relief, the nature of the relief claimed shall be specified and, where damages are claimed,
(a) the amount claimed for each claimant in respect of each claim shall be stated; and
(b) the amounts and particulars of special damages need only be pleaded to the extent that they are known at the date of the pleading, but notice of any further amounts and particulars shall be delivered forthwith after they become known and, in any event, not less than ten days before trial.
RULES OF PLEADING-APPLICABLE TO DEFENCES
Admissions
25.07 (1) In a defence, a party shall admit every allegation of fact in the opposite party's pleading that the party does not dispute.
Denials
(2) Subject to subrule (6), all allegations of fact that are not denied in a party's defence shall be deemed to be admitted unless the party pleads that he or she has no knowledge in respect of the fact.
Different Version of Facts
(3) Where a party intends to prove a version of the facts different from that pleaded by the opposite party, a denial of the version so pleaded is not sufficient, but the party shall plead his or her own version of the facts in the defence.
Affirmative Defences
(4) In a defence, a party shall plead any matter on which the party intends to rely to defeat the claim of the opposite party and which, if not specifically pleaded, might take the opposite party by surprise or raise an issue that has not been raised in the opposite party's pleading.
Effect of Denial of Agreement
(5) Where an agreement is alleged in a pleading, a denial of the agreement by the opposite party shall be construed only as a denial of the making of the agreement or of the facts from which the agreement may be implied by law, and not as a denial of the legality or sufficiency in law of the agreement.
Damages
(6) In an action for damages, the amount of damages shall be deemed to be in issue unless specifically admitted.
WHERE A REPLY IS NECESSARY
Different Version of Facts
25.08 (1) A party who intends to prove a version of the facts different from that pleaded in the opposite party's defence shall deliver a reply setting out the different version, unless it has already been pleaded in his or her claim.
Affirmative Reply
(2) A party who intends to reply in response to a defence on any matter that might, if not specifically pleaded, take the opposite party by surprise or raise an issue that has not been raised by a previous pleading shall deliver a reply setting out that matter, subject to subrule 25.06(5) (inconsistent claims or new claims).
Reply Only Where Required
(3) A party shall not deliver a reply except where required to do so by subrule (1) or (2).
Deemed Denial of Allegations Where No Reply
(4) A party who does not deliver a reply within the prescribed time shall be deemed to deny the allegations of fact made in the defence of the opposite party.
RULES OF PLEADING-APPLICABLE TO REPLIES
Admissions
25.09 (1) A party who delivers a reply shall admit every allegation of fact in the opposite party's defence that the party does not dispute.
Effect of Denial of Agreement
(2) Where an agreement is alleged in a defence, a denial of the agreement in the opposite party's reply, or a deemed denial under subrule 25.08(4), shall be construed only as a denial of the making of the agreement or of the facts from which the agreement may be implied by law, and not as a denial of the legality or sufficiency in law of the agreement.
PARTICULARS
25.10 Where a party demands particulars of an allegation in the pleading of an opposite party, and the opposite party fails to supply them within seven days, the court may order particulars to be delivered within a specified time.
STRIKING OUT A PLEADING OR OTHER DOCUMENT
25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
(a) may prejudice or delay the fair trial of the action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the court.
RULE 26 AMENDMENT OF PLEADINGS
GENERAL POWER OF COURT
26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
WHEN AMENDMENTS MAY BE MADE
26.02 A party may amend his or her pleading,
(a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action;
(b) on filing the consent of all parties and, where a person is to be added or substituted as a party, the person's consent; or
(c) with leave of the court.
HOW AMENDMENTS MADE
26.03 (1) An amendment to a pleading shall be made on the face of the copy filed in the court office, except that where the amendment is so extensive as to make the amended pleading difficult or inconvenient to read the party shall file a fresh copy of the original pleading as amended, bearing the date of the original pleading and the title of the pleading preceded by the word "amended".
(2) An amendment to a pleading shall be underlined so as to distinguish the amended wording from the original, and the registrar shall note on the amended pleading the date on which, and the authority by which, the amendment was made.
(3) Where a pleading has been amended more than once each subsequent amendment shall be underlined with an additional line for each occasion.
SERVICE OF AMENDED PLEADING
Service on Every Party to Action and Related Actions
26.04 (1) An amended pleading shall be served forthwith on every person who is, at the time of service, a party to the main action or to a counterclaim, crossclaim or third party claim in the main action, unless the court orders otherwise.
(2) Proof of service of an amended pleading other than an originating process shall be filed forthwith after it is served.
Amended Originating Process
(3) Where an amended pleading is an originating process,
(a) it need not be served personally on a party who was served with the original pleading and responded to it; and
(b) it shall be served personally or by an alternative to personal service under rule 16.03 on an opposite party who has not responded to the original pleading, whether or not the party has been noted in default.
RESPONDING TO AN AMENDED PLEADING
26.05 (1) A party shall respond to an amended pleading within the time remaining for responding to the original pleading, or within ten days after service of the amended pleading, whichever is the longer period, unless the court orders otherwise.
(2) A party who has responded to a pleading that is subsequently amended and does not respond to to the amended pleading within the prescribed time shall be deemed to rely on the party's original pleading in answer to the amended pleading.
AMENDMENT AT TRIAL
26.06 Where a pleading is amended at the trial, and the amendment is made on the face of the record, an order need not be taken out and the pleading as amended need not be filed or served unless the court orders otherwise.
WHERE AVAILABLE
Against the Plaintiff
27.01 (1) A defendant may assert, by way of counterclaim in the main action, any right or claim that he or she may have against the plaintiff including a claim for contribution or indemnity under the Negligence Act in respect of another party's claim against the defendant.
Against the Plaintiff and Another Person
(2) A defendant who counterclaims against a plaintiff may join as a defendant to the counterclaim any other person, whether a party to the main action or not, who is a necessary or proper party to the counterclaim.
STATEMENT OF DEFENCE AND COUNTERCLAIM
27.02 A counterclaim (Form 27A or 27B) shall be included in the same document as the statement of defence and the document shall be entitled a statement of defence and counterclaim.
COUNTERCLAIM TO BE ISSUED WHERE DEFENDANT TO COUNTERCLAIM NOT ALREADY PARTY TO MAIN ACTION
27.03 Where a person who is not already a party to the main action is made a defendant to the counterclaim, the statement of defence and counterclaim,
(i) within the time prescribed by rule 18.01 for delivery of the statement of defence in the main action or at any time before the defendant is noted in default, or
(ii) subsequently with leave of the court; and
(b) shall contain a second title of proceeding showing who is the plaintiff by counterclaim and who are defendants to the counterclaim.
TIME FOR DELIVERY OR SERVICE OF DEFENCE AND COUNTERCLAIM
Where all Parties are Parties to Main Action
27.04 (1) Where a counterclaim is only against the plaintiff, or only against the plaintiff and another person who is already a party to the main action, the statement of defence and counterclaim shall be delivered within the time prescribed by rule 18.01 for the delivery of the statement of defence in the main action, or at any time before the defendant is noted in default.
Where New Party is Brought in
(2) Where a counterclaim is against the plaintiff and a defendant to the counterclaim who is not already a party to the main action, the statement of defence and counterclaim shall be served, after it has been issued, on the parties to the main action and, together with all the pleadings previously delivered in the main action, on a defendant to the counterclaim who is not already a party to the main action, and shall be filed with proof of service,
(a) within thirty days after the statement of defence and counterclaim is issued or at any time before the defendant is noted in default; or
(b) subsequently with leave of the court.
(3) A statement of defence and counterclaim need not be served personally on any person who is a party to the main action, except where a defendant to the counterclaim is also a defendant in the main action and has failed to deliver a notice of intent to defend or a statement of defence in the main action, in which case the defendant shall be served personally or by an alternative to personal service under rule 16.03 whether or not the defendant has been noted in default in the main action.
TIME FOR DELIVERY OF DEFENCE TO COUNTERCLAIM
27.05 (1) The plaintiff and any other defendant to a counterclaim who is already a party to the main action shall deliver a defence to counterclaim (Form 27C) within twenty days after service of the statement of defence and counterclaim.
(2) Where the plaintiff delivers a reply in the main action, the defence to counterclaim shall be included in the same document as the reply and the document shall be entitled a reply and defence to counterclaim.
(3) Except as provided in subrule 18.02(3) (notice of intent to defend) or 19.01(5) (late delivery of defence), a defendant to a counterclaim who is not already a party to the main action shall deliver a defence to counterclaim,
(a) within twenty days after service of the statement of defence and counterclaim, where the defendant to the counterclaim is served in Ontario;
(b) within forty days after service of the statement of defence and counterclaim, where the defendant to the counterclaim is served elsewhere in Canada or in the United States of America; or
(c) within sixty days after service of the statement of defence and counterclaim, where the defendant to the counterclaim is served anywhere else.
TIME FOR DELIVERY OF REPLY TO DEFENCE TO COUNTERCLAIM
27.06 A reply to defence to counterclaim (Form 27D), if any, shall be delivered within ten days after service of the defence to counterclaim.
AMENDING DEFENCE TO ADD COUNTERCLAIM
27.07 (1) A defendant who has delivered a statement of defence that does not contain a counterclaim and who wishes to counterclaim only against the plaintiff or only against the plaintiff and another person who is already a party to the main action may amend the statement of defence in accordance with rules 26.02 and 26.03 in order to add the counterclaim, and rule 26.05 (responding to amended pleading) applies to the amended statement of defence and counterclaim.
(2) A defendant who has delivered a statement of defence that does not contain a counterclaim and who wishes to counterclaim against the plaintiff and another person who is not already a party to the main action may, with leave of the court, have the registrar issue an amended statement of defence and counterclaim, and rule 26.05 (responding to amended pleading) applies to the amended statement of defence and counterclaim.
TRIAL OF COUNTERCLAIM
27.08 (1) A counterclaim shall be tried at the trial of the main action, unless the court orders otherwise.
(2) Where it appears that a counterclaim may unduly complicate or delay the trial of the main action, or cause undue prejudice to a party, the court may order separate trials or order that the counterclaim proceed as a separate action.
DISPOSITION OF COUNTERCLAIM
Where Claim in Main Action not Disputed
27.09 (1) Where a defendant does not dispute the claim of the plaintiff in the main action, but asserts a counterclaim, the court may stay the main action or grant judgment, with or without a stay of execution, until the counterclaim is disposed of.
Where Counterclaim not Disputed
(2) Where the plaintiff does not dispute the counterclaim of a defendant, the court may stay the counterclaim or grant judgment, with or without a stay of execution, until the main action is disposed of.
Where Both Claim and Counterclaim Succeed
(3) Where both the plaintiff in the main action and the plaintiff by counterclaim succeed, either in whole or in part, and there is a resulting balance in favour of one of them, the court may in a proper case give judgment for the balance and dismiss the smaller claim and may make such order for costs of the claim and counterclaim as is just.
APPLICATION TO COUNTERCLAIMS, CROSSCLAIMS AND THIRD PARTY
CLAIMS
27.10 Rules 27.01 to 27.09 apply, with necessary modifications, to the assertion of a counterclaim by a defendant to a counterclaim, by a defendant to a crossclaim and by a third party.
WHERE AVAILABLE
28.01 (1) A defendant may crossclaim against a co-defendant who,
(a) is or may be liable to the defendant for all or part of the plaintiff's claim;
(b) is or may be liable to the defendant for an independent claim for damages or other relief arising out of,
(i) a transaction or occurrence or series of transactions or occurrences involved in the main action, or
(ii) a related transaction or occurrence or series of transactions or occurrences; or
(c) should be bound by the determination of an issue arising between the plaintiff and the defendant.
(2) A defendant who claims contribution from a co-defendant under the Negligence Act shall do so by way of crossclaim.
STATEMENT OF DEFENCE AND CROSSCLAIM
28.02 A crossclaim (Form 28A) shall be included in the same document as the statement of defence and the document shall be entitled a statement of defence and crossclaim.
AMENDING DEFENCE TO ADD CROSSCLAIM
28.03 A defendant who has delivered a statement of defence that does not contain a crossclaim and who wishes to crossclaim may amend the statement of defence in accordance with rules 26.02 and 26.03 in order to add the crossclaim, and rule 26.05 (responding to amended pleading) applies to the amended statement of defence and crossclaim.
TIME FOR DELIVERY OF STATEMENT OF DEFENCE AND CROSSCLAIM
28.04 (1) A statement of defence and crossclaim shall be delivered,
(a) within the time prescribed by rule 18.01 for delivery of the statement of defence in the main action or at any time before the defendant is noted in default; or
(b) subsequently with leave, which the court shall grant unless the plaintiff would be prejudiced thereby.
(2) A statement of defence and crossclaim need not be served personally on a defendant against whom a crossclaim is made, unless the defendant has failed to deliver a notice of intent to defend or a statement of defence in the main action, in which case the defendant shall be served personally or by an alternative to personal service under rule 16.03, whether or not the defendant has been noted in default in the main action.
TIME FOR DELIVERY OF DEFENCE TO CROSSCLAIM
Defence to Crossclaim
28.05 (1) Subject to subrule (2), a defence to crossclaim (Form 28B) shall be delivered within twenty days after service of the statement of defence and crossclaim.
Where Defence to Crossclaim not Required
(2) Where,
(a) a crossclaim contains no claim other than a claim for contribution or indemnity under the Negligence Act;
(b) the defendant to the crossclaim has delivered a statement of defence in the main action; and
(c) the defendant to the crossclaim in response to the crossclaim relies on the facts pleaded in his or her statement of defence in the main action and not on a different version of the facts or on any matter that might, if not specifically pleaded, take the crossclaiming defendant by surprise,
the defendant to the crossclaim need not deliver a defence to the crossclaim and shall be deemed to deny the allegations of fact made in the crossclaim and to rely on the facts pleaded in the statement of defence in the main action.
CONTENTS OF DEFENCE TO CROSSCLAIM
May Defend Against Crossclaim and Against Plaintiff's Claim Against Co-defendant
28.06 (1) In a defence to crossclaim, the defendant may,
(a) defend against the crossclaim; and
(b) where appropriate, defend against the plaintiff s claim against the crossclaiming defendant, in which case the defendant may raise any defence open to the crossclaiming defendant.
Separate Part for Defence Against Plaintiff
(2) Where the defendant defends against the plaintiff s claim against the crossclaiming defendant, the defence to crossclaim shall contain a separate part entitled a defence to plaintiff s claim against crossclaiming defendant.
Consequence of Defending Against Plaintiff
(3) A defendant who defends against the plaintiff's claim against the crossclaiming defendant,
(a) has the same rights and obligations in the action, including those in respect of discovery, trial and appeal, as a defendant to that claim; and
(b) is bound by any order or determination made in the main action between the plaintiff and the crossclaiming defendant.
Time for Reply by Plaintiff
(4) The plaintiff s reply, if any, to the defence to plaintiff s claim against crossclaiming defendant shall be delivered within ten days after service of that defence.
Consequence of Not Defending Against Plaintiff
(5) A defendant who does not defend against the plaintiff s claim against the crossclaiming defendant is bound by any order or determination made in the main action between the plaintiff and the crossclaiming defendant.
EFFECT OF DEFAULT OF DEFENCE TO CROSSCLAIM
28.07 Where a defendant against whom a crossclaim is made is noted in default in respect of the crossclaim, the crossclaiming defendant may obtain judgment against the other defendant only at the trial of the main action or on motion to a judge.
TIME FOR DELIVERY OF REPLY TO DEFENCE TO CROSSCLAIM
28.08 A reply to defence to crossclaim (Form 28C), if any, shall be delivered within ten days after service of the defence to crossclaim.
TRIAL OF CROSSCLAIM
28.09 A crossclaim shall be tried at or immediately after the trial of the main action, unless the court orders otherwise.
PREJUDICE OR DELAY TO PLAINTIFF
28.10 A plaintiff is not to be prejudiced or unnecessarily delayed by reason of a crossclaim, and on motion by the plaintiff the court may make such order or impose such terms, including an order that the crossclaim proceed as a separate action, as are necessary to prevent prejudice or delay where that may be done without injustice to the parties to the crossclaim.
APPLICATION TO COUNTERCLAIMS AND THIRD PARTY CLAIMS
28.11 Rules 28.01 to 28.10 apply, with necessary modifications, to the assertion of a crossclaim between co-defendants to a counterclaim or between third parties to a third party claim.
RULE 29 THIRD PARTY CLAIM
WHERE AVAILABLE
29.01 A defendant may commence a third party claim against any person who is not a party to the action and who,
(a) is or may be liable to the defendant for all or part of the plaintiff's claim;
(b) is or may be liable to the defendant for an independent claim for damages or other relief arising out of,
(i) a transaction or occurrence or series of transactions or occurrences involved in the main action, or
(ii) a related transaction or occurrence or series of transactions or occurrences; or
(c) should be bound by the determination of an issue arising between the plaintiff and the defendant.
TIME FOR THIRD PARTY CLAIM
Issuing
29.02 (1) A third party claim (Form 29A) shall be issued, within ten days after the defendant delivers a statement of defence, or at any time before the defendant is noted in default, which ever is earlier.
Exception, reply
(1.1) A third party claim may be issued within ten days after the plaintiff delivers a reply in the main action of the defendant's statement of defence.
Exceptions, consent and leave
(1.2) A third party claim may be issued at any time with the plaintiff's consent or with leave, which the court shall grant unless the plaintiff would be prejudiced thereby.
Service
(2) A third party claim shall be served on the third party personally or by an alternative to personal service under rule 16.03, together with all the pleadings previously delivered in the main action or in any counterclaim, crossclaim or third or subsequent party claim in the main action, within thirty days after the third party claim is issued.
(3) A third party claim shall also be served on every other party to the main action within the time for service on the third party, but personal service is not required.
THIRD PARTY DEFENCE
29.03 Except as provided in subrule 18.02(3) (notice of intent to defend) or 19.01(5) (late filing of defence), a third party may defend against the third party claim by delivering a third party defence (Form 29B),
(a) within twenty days after service of the third party claim, where the third party is served in Ontario;
(b) within forty days after service of the third party claim, where the defendant is served elsewhere in Canada or in the United States of America; or
(c) within sixty days after service of the third party claim, where the third party is served anywhere else.
REPLY TO THIRD PARTY DEFENCE
29.04 A reply to third party defence (Form 29C), if any, shall be delivered within ten days after service of the third party defence.
DEFENCE OF MAIN ACTION BY THIRD PARTY
Third Party May Defend Main Action
29.05 (1) Where appropriate, the third party may defend against the plaintiff s claim against the defendant by delivering a statement of defence in the main action, in which the third party may raise any defence open to the defendant.
Consequence of Defending Main Action
(2) A third party who delivers a statement of defence in the main action,
(a) has the same rights and obligations in the main action, including those in respect of discovery, trial and appeal, as a defendant in the main action; and
(b) is bound by any order or determination made in the main action between the plaintiff and the defendant who made the third party claim.
Time for Statement of Defence
(3) The statement of defence of the third party shall be delivered within the time prescribed by rule 29.03 for the delivery of his or her third party defence.
Time for Reply
(4) The plaintiff s reply, if any, to the statement of defence of the third party shall be delivered within ten days after service of that statement of defence.
Consequence of Not Defending Main Action
(5) A third party who does not deliver a statement of defence in the main action is bound by any order or determination made in the main action between the plaintiff and the defendant who made the third party claim.
EFFECT OF THIRD PARTY DEFENCE
29.06 Where a third party has delivered a third party defence,
(a) the third party shall be served with all subsequent documents in the main action;
(b) judgment in the main action on consent or after the noting of the defendant in default may be obtained only on notice to the third party; and
(c) where the defendant making the third party claim has also made a crossclaim against a co-defendant, the co-defendant and the third party have the same rights to discovery from each other as if they were parties to the same action.
EFFECT OF DEFAULT OF THIRD PARTY
29.07 Where a third party has been noted in default, the defendant may obtain judgment against the third party only at the trial of the main action or on motion to a judge.
TRIAL OF THIRD PARTY CLAIM
29.08 (1) After the close of pleadings in the third party claim it shall be listed for trial as an action as provided in Rule 48 without undue delay and placed on the trial list immediately after the main action.
(2) The third party claim shall be tried at or immediately after the trial of the main action, unless the court orders otherwise.
PREJUDICE OR DELAY TO PLAINTIFF
29.09 A plaintiff is not to be prejudiced or unnecessarily delayed by reason of a third party claim, and on motion by the plaintiff the court may make such order or impose such terms, including an order that the third party claim proceed as a separate action, as are necessary to prevent prejudice or delay where that may be done without injustice to the defendant or the third party.
THIRD PARTY DIRECTIONS
29.10 Any party affected by a third party claim may move for directions in respect of any matter of procedure not otherwise provided for in these rules.
FOURTH AND SUBSEQUENT PARTY CLAIMS
29.11 (1) A third party may, by commencing a fourth party claim, assert against any person not already a party to the third party claim any claim that is properly the subject matter of a third party claim, and rules 29.01 to 29.10 apply, with necessary modifications, to the fourth party claim.
(2) A fourth party claim need not be served personally on a fourth party who is a party to the main action, unless the fourth party is a defendant in that action and has failed to deliver a notice of intent to defend or a statement of defence in the main action, in which case the fourth party shall be served personally or by an alternative to personal service under rule 16.03, whether or not the fourth party has been noted in default in the main action.
(2.1) Despite subrule 29.02(2), when a fourth party claim is served on a person who is already a party to the main action or to any counterclaim, cross-claim or third party claim in the main action, the pleadings previously delivered in the main action or in any counterclaim, crossclaim or third party claim in the main action need not be served.
(3) A fourth or subsequent party may assert any claim that is properly the subject matter of a third party claim in like manner as a third party claim.
APPLICATION TO FOURTH AND SUBSEQUENT PARTY CLAIMS
29.12 The provisions of these rules that apply to third party claims apply, with necessary modifications, to fourth and subsequent party claims.
APPLICATION TO COUNTERCLAIMS AND CROSSCLAIMS
29.13 Rules 29.01 to 29.12 apply, with necessary modifications, to the assertion of a third party claim by a defendant to a counterclaim or by a defendant to a crossclaim.