PRE-TRIAL PROCEDURES
RULE 46 PLACE OF TRIAL
TO BE NAMED IN STATEMENT OF CLAIM
46.01 (1) The plaintiff shall name in the statement of claim as the place of trial a place in which the court normally sits in the county in which the plaintiff proposes that the action be tried.
(2) Where a statute requires an action to be tried in a particular county, the plaintiff shall name as the place of trial a place in which the court normally sits in that county.
(3) In a divorce action, the place of trial shall be named in accordance with rule 69.17, and in a family law proceeding, it shall be named in accordance with rule 70.05.
WHERE TRIAL TO BE HELD
46.02 The trial shall be held at the place named in the statement of claim unless the court makes an order under rule 46.03 changing the place of trial.
ORDER CHANGING PLACE OF TRIAL
46.03 (1) Where a plaintiff has named as the place of trial a place other than that required by statute, the court on motion by any party shall order that the trial be held at the place required.
(2) In any other case, the court on motion by any party may order that the trial be held at a place other than that named in the statement of claim where the court is satisfied that,
(a) the balance of convenience substantially favours the holding of the trial at another place; or
(b) it is likely that a fair trial cannot be had at the place named in the statement of claim.
ACTIONS TO BE TRIED WITH A JURY
47.01 A party to an action may require that the issues of fact be tried or the damages be assessed, or both, by a jury, by delivering a jury notice (Form 47A) at any time before the close of pleadings, unless section 108 of the Courts of Justice Act or another statute requires that the action be tried without a jury.
STRIKING OUT JURY NOTICE
Where Jury Notice not in Accordance with Statute or Rules
47.02 (1) A motion may be made to the court to strike out a jury notice on the ground that,
(a) a statute requires a trial without a jury; or
(b) the jury notice was not delivered in accordance with rule 47.01.
Where Jury Trial Inappropriate
(2) A motion to strike out a jury notice on the ground that the action ought to be tried without a jury shall be made to a judge.
Discretion of Trial Judge
(3) Where an order striking out a jury notice is refused, the refusal does not affect the discretion of the trial judge, in a proper case, to try the action without a jury.
RULE 48 LISTING FOR TRIAL
WHEN AND BY WHOM ACTION MAY BE SET DOWN FOR TRIAL
48.01 After the close of pleadings, any party to an action or to a counterclaim or crossclaim in the action who is not in default under these rules or an order of the court and who is ready for trial may set the action down for trial, together with any counterclaim or crossclaim.
HOW ACTION IS SET DOWN FOR TRIAL
Defended Action
48.02 (1) Where an action is defended, a party who wishes to set it down for trial may do so by serving a trial record prepared in accordance with rule 48.03 on every party to the action or to a counterclaim or crossclaim in the action and on any third or subsequent party and forthwith filing the trial record with proof of service.
Undefended Action
(2) Where the court orders the trial of an undefended action, a party who wishes to set it down for trial may do so by filing a trial record prepared in accordance with rule 48.03.
Defended Third Party Claim
(3) Where an action is a defended third party claim, a party who wishes to set it down for trial shall, in addition to complying with subrule (1), serve the trial record in the third party claim on the plaintiff in the main action within the time for service on the parties to the third party claim and shall forthwith file proof of service.
Undefended Third Party Claim
(3) Where an action is an undefended third party claim, a party who wishes to set it down for trial shall serve the trial record in the third party claim on the plaintiff in the main action and shall forthwith file proof of service.
TRIAL RECORD
48.03 (1) The trial record shall contain, in the following order,
(a) a table of contents, describing each document by its nature and date;
(b) a copy of any jury notice;
(c) a copy of the pleadings, including those relating to any counterclaim or crossclaim;
(d) a copy of any financial statement delivered under rule 69.14 or 70.04 or waiver of financial statements filed under subrule 69.14(3);
(e) a copy of any demand or order for particulars of a pleading or financial statement and the particulars delivered in response;
(f) a copy of any notice of amounts and particulars of special damages delivered under clause 25.06(9)(b);
(g) a copy of any order respecting the trial; and
(h) a certificate signed by the solicitor setting the action down, stating,
(i) that the record contains the documents required by clauses (a) to (g),
(ii) that the time for delivery of pleadings has expired,
(iii) where applicable, that a defendant who has failed to deliver a statement of defence has been noted in default, and
(iv) where applicable, that judgment has been obtained or that the action has been discontinued or dismissed against a defendant.
(2) It is the responsibility of the party who filed the trial record to place with the
record, before the trial, a copy of,
(a) any notice of amounts and particulars of special damages delivered after the filing of the trial record;
(b) any order respecting the trial made after the filing of the trial record;
(c) any memorandum signed by counsel, or any order made by the court, following a pre-trial conference;
(d) any financial statement delivered under subrule 69.14(14) or 70.04 after the filing of the trial record;
(e) in an undefended action, any affidavit to be used in evidence; and
(f) any report of the Children's Lawyer and supporting affidavit and any dispute of, or waiver of the right to dispute, the report or affidavit.
CONSEQUENCES OF SETTING DOWN OR CONSENT
48.04 (1) Any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court.
(2) Subrule (1) does not,
(a) relieve a party from complying with his or her undertakings on an examination for discovery;
(b) relieve a party from any obligation imposed by,
(i) rule 30.07 (disclosure of documents or errors subsequently discovered),
(ii) rule 30.09 (abandonment of claim of privilege),
(iii) rule 31.07 (disclosure of information refused on discovery),
(iv) rule 31.09 (disclosure of information subsequently obtained),
(v) rule 51.03 (duty to respond to request to admit),
(vi) rule 53.03 (service of report of expert witness), or
(vii) rule 69.14 or 70.04 (delivery of financial statement); or
(c) preclude a party from resorting to the provisions of rule 51.02 (request to admit facts or documents).
PLACING UNDEFENDED ACTION ON TRIAL LIST
48.05 (1) In an undefended action, on receipt of the trial record the registrar at the place of trial shall forthwith place the action on the appropriate trial list.
(2) An undefended action shall not be placed on a trial list for a sitting outside
Toronto unless the trial record is received by the registrar at the place of trial at least ten days before the commencement of the sitting, except where a judge orders otherwise.
(3) [Revoked O. Reg. 396/91, s.6]
PLACING DEFENDED ACTION ON TRIAL LIST
Delivery of Notice of Listing for Trial
48.06 (1) A defended action shall be placed on the appropriate trial list by the registrar sixty days after the action is set down for trial or, if the consent in writing of every party other than the party who set the action down is filed earlier, on the date of filing.
(2) A defended action shall not be placed on a trial list for a sitting outside Toronto later than ten days before the commencement of the sitting, except where a judge orders otherwise.
CONSEQUENCES OF ACTION BEING PLACED ON TRIAL LIST
48.07 Where an action is placed on a trial list,
(a) all parties shall be deemed to be ready for trial;
(b) a pre-trial conference in the action shall proceed as scheduled unless the judge or officer presiding at the conference orders otherwise; and
(c) the trial shall proceed when the action is reached on the trial list unless a judge orders otherwise.
SEPARATE TRIAL LISTS
48.08 (1) Actions to be tried with a jury shall be placed on a trial list of jury actions and actions to be tried without a jury shall be placed on a trial list of non-jury actions.
(2) Where the next scheduled sitting in a place outside Toronto is for the trial of jury actions, the trial list of non-jury actions shall be added at the end of the trial list of jury actions.
SEPARATE SPEEDY TRIAL LIST
48.09 The registrar shall keep a separate speedy trial list on which only actions for which a speedy trial has been ordered shall be listed.
ACTIONS TRAVERSED OR REMAINING ON LIST AT CONCLUSION OF SITTING
48.10 Unless a judge orders otherwise, all actions traversed to the next sitting and all actions remaining on the trial list at the conclusion of a sitting shall stand in the same order at the beginning of the next appropriate trial list.
ACTIONS STRUCK OFF TRIAL LIST
48.11 Where an action is struck off a trial list, it shall not thereafter be placed on any trial list except with leave of a judge.
DUTY TO INFORM REGISTRAR OF SETTLEMENT
48.12 Every party to an action, whether it is placed on a trial list or not, shall promptly inform the registrar of any settlement of the action and shall confirm in writing that the action has been settled.
APPLICATION OF THE RULE
48.13 Rules 48.01 to 48.12 apply to any proceeding in which the court has directed the trial of an issue, unless the court orders otherwise.
ACTION NOT ON TRIAL LIST WITHIN TWO YEARS
Status Notice
48.14 (1) Where an action in which a statement of defence has been filed has not been placed on a trial list or terminated by any means within two years after the filing of a statement of defence, the registrar shall serve on the parties a status notice (Form 48C) that the action will be dismissed for delay unless it is set down for trial or terminated within ninety days after service of the notice.
(2) A solicitor who receives a status notice shall forthwith give a copy of the notice to his or her client,
Dismissal by Registrar
(3) The registrar shall dismiss the action for delay, with costs, ninety days after service of the status notice, unless
(a) the action has been set down for trial;
(b) the action has been terminated by any means; or
(c) a judge presiding at a status hearing has ordered otherwise.
(4) Where an action is not set down for trial or terminated by any means within the time specified in an order made at a status hearing, the registrar shall dismiss the action for delay, with costs.
(4.0.1) The registrar shall serve an order made under subrule (3) or (4) (Form 48D) on the parties.
(4.1) A solicitor who is served with an order dismissing the action for delay shall forthwith give a copy of the order to his or her client, and shall file proof that a copy was given to the client.
Status Hearing
(5) Where a status notice has been served, any party may request that the registrar arrange a status hearing, in which case the registrar shall mail to the parties a notice of hearing, and the hearing shall be held before a judge.
(6) The solicitors of record shall attend, and the parties may attend, the status hearing.
(7) Where a party represented by a solicitor does not attend the hearing, the party's solicitor shall file proof that a copy of the status notice and notice of time and place of the status hearing were given to the party.
Disposition at Status Heating
(8) At the status hearing, the plaintiff shall show cause why the action should not be dismissed for delay, and,
(a) if the presiding judge is satisfied that the action should proceed, the judge may set time periods for the completion of the remaining steps necessary to have the action placed on a trial list and may order that it be placed on a trial list within a specified time, or may adjourn the status hearing to a specified date, on such terms as are just; or
(b) if the presiding judge is not satisfied that the action should proceed, the judge may dismiss the action for delay.
Plaintiff Under Disability
(9) Where the plaintiff is under disability, the action shall not be dismissed for delay unless,
(a) notice of the status hearing is given to the Children's Lawyer, except where the Public Guardian and Trustee is litigation guardian of the plaintiff; or
(b) the presiding judge or a judge on motion orders otherwise.
Effect of Dismissal
(10) Rules 24.03 to 24.05 (effect of dismissal for delay) apply to an action dismissed for delay under subrule (3) (4) or (8).
(11) An order under this rule dismissing an action may be set aside under rule 37.14.
RULE 49 OFFER TO SETTLE
DEFINITIONS
49.01 In rules 49.02 to 49.14,
"defendant" includes a respondent;
"plaintiff' includes an applicant.
WHERE AVAILABLE
49.02 (1) A party to a proceeding may serve on any other party an offer to settle any one or more of the claims in the proceeding on the terms specified in the offer to settle (Form 49A).
(2) Subrule (1) and rules 49.03 to 49.14 also apply to motions with necessary modifications.
TIME FOR MAKING OFFER
49.03 An offer to settle may be made at any time, but where the offer to settle is made less than seven days before the hearing commences, the costs consequences referred to in rule 49.10 do not apply.
WITHDRAWAL OR EXPIRY OF OFFER
Withdrawal
49.04 (1) An offer to settle may be withdrawn at any time before it is accepted by serving written notice of withdrawal of the offer on the party to whom the offer was made.
(2) The notice of withdrawal of the offer may be in Form 49B.
Offer Expiring after Limited Time
(3) Where an offer to settle specifies a time within which it may be accepted and it is not accepted or withdrawn within that time, it shall be deemed to have been withdrawn when the time expires.
Offer Expires when Court Disposes of Claim
(4) An offer may not be accepted after the court disposes of the claim in respect of which the offer is made.
EFFECT OF OFFER
49.05 An offer to settle shall be deemed to be an offer of compromise made without prejudice.
DISCLOSURE OF OFFER TO COURT
49.06 (1) No statement of the fact that an offer to settle has been made shall be contained in any pleading.
(2) Where an offer to settle is not accepted, no communication respecting the offer shall be made to the court at the hearing of the proceeding until all questions of liability and the relief to be granted, other than costs, have been determined.
(3) An offer to settle shall not be filed until all questions of liability and the relief to be granted in the proceeding, other than costs, have been determined.
ACCEPTANCE OF OFFER
Generally
49.07 (1) An offer to settle may be accepted by serving an acceptance of offer (Form 49C) on the party who made the offer, at any time before it is withdrawn or the court disposes of the claim in respect of which it is made.
(2) Where a party to whom an offer to settle is made rejects the offer or responds with a counter-offer that is not accepted, the party may thereafter accept the original offer to settle, unless it has been withdrawn or the court has disposed of the claim in respect of which it was made.
Payment into Court or to Trustee as Term of Offer
(3) An offer by a plaintiff to settle a claim in return for the payment of money by a defendant may include a term that the defendant pay the money into court or to a trustee and the defendant may accept the offer only by paying the money in accordance with the offer and notifying the plaintiff of the payment.
Payment into Court or to Trustee as a Condition of Acceptance
(4) Where a defendant offers to pay money to the plaintiff in settlement of a claim, the plaintiff may accept the offer with the condition that the defendant pay the money into court or to a trustee and, where the offer is so accepted and the defendant fails to pay the money in accordance with the acceptance, the plaintiff may proceed as provided in rule 49.09 for failure to comply with the terms of an accepted offer.
Costs
(5) Where an accepted offer to settle does not provide for the disposition of costs, the plaintiff is entitled,
(a) where the offer was made by the defendant, to his or her costs assessed to the date the plaintiff was served with the offer; or
(b) where the offer was made by the plaintiff, to his or her costs assessed to the date that the notice of acceptance was served.
Incorporating into judgment
(6) Where an offer is accepted, the court may incorporate any of its terms into a judgment.
Payment out of Court
(7) Where money is paid into court under subrule (3) or (4), it may be paid out on consent or by order.
PARTIES UNDER DISABILITY
49.08 A party under disability may make, withdraw and accept an offer to settle, but no acceptance of an offer made by him or her and no acceptance by him or her of an offer made by another party is binding on him or her until the settlement has been approved as provided in rule 7.08.
FAILURE TO COMPLY WITH ACCEPTED OFFER
49.09 Where a party to an accepted offer to settle fails to comply with the terms of the offer, the other party may,
(a) make a motion to a judge for judgment in the terms of the accepted offer, and the judge may grant judgment accordingly; or
(b) continue the proceeding as if there had been no accepted offer to settle.
COSTS CONSEQUENCES OF FAILURE TO ACCEPT
Plaintiff s Offer
49.10 (1) Where an offer to settle,
(a) is made by a plaintiff at least seven days before the commencement of the hearing;
(b) is not withdrawn and does not expire before the commencement of the hearing; and
(c) is not accepted by the defendant,
and the plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date, unless the court orders otherwise.
Defendant's Offer
(2) Where an offer to settle,
(a) is made by a defendant at least seven days before the commencement of the hearing;
(b) is not withdrawn and does not expire before the commencement of the hearing; and
(c) is not accepted by the plaintiff,
and the plaintiff obtains a judgment as favourable as or less favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer was served and the defendant is entitled to partial indemnity costs from that date, unless the court orders otherwise.
Burden of Proof
(3) The burden of proving that the judgment is as favourable as the terms of the offer to settle, or more or less favourable, as the case may be, is on the party who claims the benefit of subrule (1) or (2).
MULTIPLE DEFENDANTS
49.11 Where there are two or more defendants, the plaintiff may offer to settle with any defendant and any defendant may offer to settle with the plaintiff, but where the defendants are alleged to be jointly or jointly and severally liable to the plaintiff in respect of a claim and rights of
contribution or indemnity may exist between the defendants, the costs consequences prescribed by rule 49.10 do not apply to an offer to settle unless,
(a) in the case of an offer made by the plaintiff, the offer is made to all the defendants, and is an offer to settle the claim against all the defendants; or
(b) in the case of an offer made to the plaintiff,
(i) the offer is an offer to settle the plaintiff s claim against all the defendants and to pay the costs of any defendant who does not join in making the offer, or
(ii) the offer is made by all the defendants and is an offer to settle the claim against all the defendants, and, by the terms of the offer, they are made jointly and severally liable to the plaintiff for the whole amount of the offer.
OFFER TO CONTRIBUTE
49.12 (1) Where two or more defendants are alleged to be jointly or jointly and severally liable to the plaintiff in respect of a claim, any defendant may make to any other defendant an offer to contribute (Form 49D) toward a settlement of the claim.
(2) The court may take an offer to contribute into account in determining whether another defendant should be ordered,
(a) to pay the costs of the defendant who made the offer; or
(b) to indemnify the defendant who made the offer for any costs he or she is liable to pay to the plaintiff,
or to do both.
(3) Rules 49.04, 49.05, 49.06 and 49.13 apply to an offer to contribute as if it were an offer to settle.
DISCRETION OF COURT
49.13 Despite rules 49.03, 49.10 and 49.11, the court, in exercising its discretion with respect to costs, may take into account any offer to settle made in writing, the date the offer was made and the terms of the offer.
APPLICATION TO COUNTERCLAIMS, CROSSCLAIMS AND THIRD PARTY CLAIMS
49.14 Rules 49.01 to 49.13 apply, with necessary modifications, to counterclaims, crossclaims and third party claims.
RULE 50 PRE-TRIAL CONFERENCE
WHERE AVAILABLE
50.01 In an action or application, a judge may, at the request of a party or on his or her own initiative, direct the solicitors for the parties, either with or without the parties, and any party not represented by a solicitor, to appear before a judge or officer for a pre-trial conference to consider,
(a) the possibility of settlement of any or all of the issues in the proceeding;
(b) the simplification of the issues;
(c) the possibility of obtaining admissions that may facilitate the hearing;
(d) the question of liability;
(e) the amount of damages, where damages are claimed;
(f) the estimated duration of the hearing;
(g) the advisability of having the court appoint an expert;
(h) the advisability of fixing a date for the hearing;
(i) the advisability of directing a reference; and
(j) any other matter that may assist in the just, most expeditious and least expensive disposition of the proceeding.
MEMORANDUM OR ORDER
50.02 (1) At the conclusion of the conference,
(a) counsel may sign a memorandum setting out the results of the conference; and
(b) where the conference is conducted by a judge, the judge may make such order as he or she considers necessary or advisable with respect to the conduct of the proceeding,
and the memorandum or order binds the parties unless the judge or officer presiding at the hearing of the proceeding orders otherwise to prevent injustice.
(2) A copy of a memorandum or order under subrule (1) shall be placed with the trial or application record.
NO DISCLOSURE TO THE COURT
50.03 No communication shall be made to the judge or officer presiding at the hearing of the proceeding or a motion or reference in the proceeding with respect to any statement made at a pre-trial conference, except as disclosed in the memorandum or order under rule 50.02.
PRE-TRIAL JUDGE CANNOT PRESIDE AT HEARING
50.04 A judge who conducts a pre-trial conference shall not preside at the trial of the action or the hearing of the application.
DOCUMENTS TO BE MADE AVAILABLE
50.05 All documents intended to be used at the hearing that may be of assistance in achieving the purposes of a pre-trial conference, such as medical reports and reports of experts, shall be made available to the pre-trial conference judge or officer.
COSTS OF PRE-TRIAL CONFERENCE
50.06 A judge who conducts a pre-trial conference may make an order for costs of the pre-trial conference but in the absence of such an order or where the conference is conducted by an officer, the costs shall be assessed as part of the costs of the proceeding.
CONFERENCE BEFORE TRIAL JUDGE
50.07 Subrule 50.04(1) does not prevent a judge before whom a proceeding has been called for hearing from holding a conference either before or during the hearing to consider any matter that may assist in the just, most expeditious and least expensive disposition of the proceeding without disqualifying himself or herself from presiding at the hearing.
50.08 Revoked O. Reg 288/99, s. 15
INTERPRETATION
51.01 In rules 51.02 to 51.06, "authenticity" includes the fact that,
(a) a document that is said to be an original was printed, written, signed or executed as it purports to have been;
(b) a document that is said to be a copy is a true copy of the original; and
(c) where the document is a copy of a letter, telegram or telecommunication, the original was sent as it purports to have been sent and received by the person to whom it is addressed.
REQUEST TO ADMIT FACT OR DOCUMENT
51.02 (1) A party may at any time, by serving a request to admit (Form 51A), request any other party to admit, for the purposes of the proceeding only, the truth of a fact or the authenticity of a document.
(2) A copy of any document mentioned in the request to admit shall, where
practicable, be served with the request, unless a copy is already in the possession of the other party.
EFFECT OF REQUEST TO ADMIT
Response Required Within Twenty Days
51.03 (1) A party on whom a request to admit is served shall respond to it within twenty days after it is served by serving on the requesting party a response to request to admit (Form 51B).
Deemed Admission Where No Response
(2) Where the party on whom the request is served fails to serve a response as required by subrule (1), the party shall be deemed, for the purposes of the proceeding only, to admit the truth of the facts or the authenticity of the documents mentioned in the request to admit.
Deemed Admission Unless Response Contains Denial or Reason for Refusal to Admit
(3) A party shall also be deemed, for the purposes of the proceeding only, to admit the truth of the facts or the authenticity of the documents mentioned in the request, unless the party's response,
(a) specifically denies the truth of a fact or the authenticity of a document mentioned in the request; or
(b) refuses to admit the truth of a fact or the authenticity of a document and sets out the reason for the refusal.
COSTS ON REFUSAL TO ADMIT
51.04 Where a party denies or refuses to admit the truth of a fact or the authenticity of a document after receiving a request to admit, and the fact or document is subsequently proved at the hearing, the court may take the denial or refusal into account in exercising its discretion respecting costs.
WITHDRAWAL OF ADMISSION
51.05 An admission made in response to a request to admit, a deemed admission under rule 51.03 or an admission in a pleading may be withdrawn on consent or with leave of the court.
ORDER BASED ON ADMISSION OF FACT OR DOCUMENT
Motion
51.06 (1) Where an admission of the truth of a fact or the authenticity of a document is made,
(a) in an affidavit filed by a party;
(b) in the examination for discovery of a party or a person examined for discovery on behalf of a party; or
(c) by a party on any other examination under oath or affirmation in or out of court,
any party may make a motion to a judge in the same or another proceeding for such order as he or she may be entitled to on the admission without waiting for the determination of any other question between the parties, and the judge may make such order as is just.
(2) Where an admission of the truth of a fact or the authenticity of a document is made by a party in a pleading or is made or deemed to be made by a party in response to a request to admit, any party make a motion in the same proceeding to a judge for such order as he or she may be entitled to on the admission without waiting for the determination of any question between the
parties, and the judge may make such order as is just.
(3) If Rule 30.1 applies to the admission, its use in another proceeding is subject to Rule 30.1 (deemed undertaking).