REFERENCES
RULE 54 DIRECTING A REFERENCE
APPLICATION OF RULES 54 AND 55
54.01 Rules 54 and 55 apply to references directed,
(a) under rule 54.02 or any other rule; and
(b) under a statute, subject to the provisions of the statute.
WHERE REFERENCE MAY BE DIRECTED
Reference of Whole Proceeding or Issue
54.02 (1) Subject to any right to have an issue tried by a jury, a judge may at any time in a proceeding direct a reference of the whole proceeding or a reference to determine an issue where,
(a) all affected parties consent;
(b) a prolonged examination of documents or an investigation is required that, in the opinion of the judge, cannot conveniently be made at trial; or
(c) a substantial issue in dispute requires the taking of accounts.
Reference of Issue
(2) Subject to any right to have an issue tried by a jury, a judge may at any time in a proceeding direct a reference to determine an issue relating to,
(a) the taking of accounts;
(b) the conduct of a sale;
(c) the appointment by the court of a guardian or receiver, or the appointment by a person of an attorney under a power of attorney;
(d) the conduct of a guardianship or receivership or the exercise of the authority of an attorney acting under a power of attorney; or
(e) the enforcement of an order.
TO WHOM REFERENCE MAY BE DIRECTED
Judge or officer
54.03 (1) A reference may be directed to the referring judge, to another judge with that judge's consent, to a registrar or other officer of the court or to a person agreed on by the parties.
Person Agreed on by Parties
(2) Where a reference is directed to a person agreed on by the parties, the person is, for the purposes of the reference, an officer of the court directing the reference.
(3) The judge directing a reference to a person agreed on by the parties may,
(a) determine his or her remuneration and the liability of the parties for its payment;
(b) refer that issue to the person to whom the reference is directed; or
(c) reserve that issue until the report on the reference is confirmed.
ORDER DIRECTING A REFERENCE
54.04 (1) An order directing a reference shall specify the nature and subject matter of the reference and who is to conduct it and may,
(a) direct in general terms that all necessary inquiries be made, accounts taken and costs assessed;
(b) contain directions for the conduct of the reference; and
(c) designate which party is to have carriage of the reference.
(2) An order of a master or registrar directing a reference shall not require a report back, and the report or an interim report on the reference shall be confirmed under rule 54.09 (confirmation by passage of time).
(3) A referee has, subject to the order directing the reference, all the powers these rules give to a referee.
MOTIONS ON A REFERENCE
54.05 (1) A referee shall hear and dispose of any motion made in connection with the reference, but in the absence of or with the consent of the referee, a motion may be heard and disposed of by a judge or master.
(2) Rule 37.03 (place of hearing of motions) does not apply to a motion made in connection with a reference and heard by the referee.
(3) Where a referee has made an order on a motion in the reference, a person who is affected by the order may make a motion to a judge to set aside or vary the order by a notice of motion served within seven days after the order is made and naming the first available hearing date that is at least three days after service of the notice of motion.
REPORT ON REFERENCE
54.06 A referee shall make a report that contains his or her findings and conclusions.
REPORT MUST BE CONFIRMED
54.07 (1) A report has no effect until it has been confirmed.
(2) A report shall be entered immediately after it has been confirmed and Rule 59.05 (entry of order) applies, with necessary modifications.
CONFIRMATION ON MOTION WHERE REPORT BACK REQUIRED
54.08 (1) Where the order directing a reference requires the referee to report back, the report or an interim report on the reference may be confirmed only on a motion to the judge who directed the reference on notice to every party who appeared on the reference, and the judge may require the referee to give reasons for his or her findings and conclusions and may confirm the report in whole or in part
or make such other order as is just.
(2) Where the judge who directed the reference is unable for any reason to hear a motion for confirmation, the motion may be made to another judge.
CONFIRMATION BY PASSAGE OF TIME WHERE REPORT BACK NOT
REQUIRED
Fifteen Day Period to Oppose Confirmation
54.09 (1) Where the order directing a reference does not require the referee to report back, the report or an interim report on the reference is confirmed
(a) immediately on the filing of the consent of every party who appeared on the reference; or,
(b) on the expiration of fifteen days after a copy, with proof of service on every party who appeared on the reference, has been filed in the office in which the proceeding was commenced, unless a notice of motion to oppose confirmation of a report is served within that time.
To Whom Motion to Oppose Confirmation Made
(2) A motion to oppose confirmation of a report shall be made to a judge other than the one who conducted the reference.
Notice of Motion to Oppose Confirmation
(3) A notice of motion to oppose confirmation of a report shall,
(a) set out the grounds for opposing confirmation;
(b) be served within fifteen days after a copy of the report, with proof of service on every party who appeared on the reference, has been filed in the office in which the proceeding was commenced; and
(c) name the first available hearing date that is at least three days after service of the notice of motion.
Motion for Immediate Confirmation
(4) A party who seeks confirmation before the expiration of the fifteen day period prescribed in subrule (1) may make a motion to a judge for confirmation.
Disposition of Motion
(5) A judge hearing a motion under subrule (2) or (4) may require the referee to give reasons for his or her findings and conclusions and may confirm the report in whole or in part or make such other order as is just.
REFEREE UNABLE TO CONTINUE OR COMPLETE REFERENCE
54.10 Where a referee is unable for any reason to continue or complete a reference, any party to the reference
(a) the parties to the reference may by consent appoint a new referee; or
(b) any party to the reference may make a motion to a judge for directions for continuation or completion of the reference.
RULE 55 PROCEDURE ON A REFERENCE
GENERAL PROVISIONS FOR CONDUCT OF REFERENCE
Simple Procedure to be Adopted
55.01 (1) A referee shall, subject to any directions contained in the order directing the reference, devise and adopt the simplest, least expensive and most expeditious manner of conducting the reference and may,
(a) give such directions as are necessary; and
(b) dispense with any procedure ordinarily taken that the referee considers to be unnecessary, or adopt a procedure different from that ordinarily taken.
Special Circumstances to be Reported
(2) A referee shall report on any special circumstances relating to the reference and shall generally inquire into, decide and report on all matters relating to the reference as fully as if they had been specifically referred.
General Procedure
(3) Subject to subrule (1), a reference shall be conducted as far as possible in accordance with rules 55.01 to 55.07.
PROCEDURE ON A REFERENCE GENERALLY
Hearing for Directions
55.02 (1) The party having carriage of the reference shall forthwith have the order directing the reference signed and entered and, within ten days after entry, request an appointment with the referee for a hearing to consider directions for the reference and, in default, any other party having an interest in the reference may assume carriage of it.
(2) A notice of hearing for directions (Form 55A) and a copy of the order directing the reference shall be served on every other party to the proceeding at least five days before the hearing unless the referee directs or these rules provide otherwise.
Directions
(3) At the hearing for directions, the referee shall give such directions for the conduct of the reference as are just, including,
(a) the time and place at which the reference is to proceed;
(b) any special directions concerning the parties who are to attend; and
(c) any special directions concerning what evidence is to be received and how documents are to be proved.
(4) The directions may be varied or supplemented during the course of the reference.
Adding Parties
(5) Where it appears to the referee that any person ought to be added as a party to the proceeding, the referee may make an order adding the person as a defendant or respondent and direct that the order, together with the order directing the reference and a notice to party added on reference (Form 55B), be served on the person, and on being served the person becomes a party to the proceeding.
(6) A person served with a notice under subrule (5) may make a motion to a judge to set aside or vary the order directing the reference or the order adding the person as a party, by a notice of motion served within ten days after service of the notice under subrule (5), or where the person is served outside Ontario, within such further time as the referee directs, and naming the first available hearing date that is at least three days after service of the notice of motion.
Failure to Appear on Reference
(7) A party who is served with notice of a reference under subrule (2) or (5) and does not appear in response to the notice is not entitled to notice of any step in the reference and need not be served with any document in the reference, unless the referee orders otherwise.
Representation of Parties with Similar Interests
(8) Where it appears to the referee that two or more parties have substantially similar interests and can be adequately represented as a class, the referee may require them to be represented by the same solicitor and, where they cannot agree on a solicitor to represent them, the referee may designate a solicitor on such terms as are just.
(9) A party referred to in subrule (8) who insists on being represented by a different solicitor shall not recover the costs of the separate representation and, unless the referee orders otherwise, shall pay all costs incurred by the other parties as a result of the separate representation.
Amendment of Pleadings
(10) The referee may grant leave to make any necessary amendments to the pleadings that are not inconsistent with the order of reference.
Procedure Book
(11) The referee shall keep a procedure book in which he or she shall note all steps taken and all directions given in respect of the reference, and the directions need not be embodied in a formal order or report to bind the parties.
Transferring Carriage of Reference
(12) Where the party having carriage of the reference does not proceed with reasonable diligence, the referee may, on the motion of any other interested party, transfer carriage of the reference to another party.
Evidence of Witnesses
(13) Witnesses on a reference shall be examined orally unless the referee directs otherwise, and evidence taken orally shall be recorded.
(14) The attendance of a person to be examined on a reference may be compelled in the same manner as provided in Rule 53 for a witness at a trial.
Expert Witnesses
(14.1) Rule 53.03 (expert witness) and rule 53.08 (evidence admissible only with leave) apply, with necessary modifications, to the calling of an expert witness on a reference.
Expert Appointed by Referee
(14.2) A referee may appoint an independent expert and rule 52.03 (court appointed expert) applies, with necessary modifications.
Examination of Party and Production of Documents
(15) The referee may require any party to be examined and to produce such documents as the referee thinks fit and may give directions for their inspection by any other party.
Filing of Documents
(16) While a reference is pending, all documents relating to it shall be filed with the referee and, on completion of the reference, the documents shall be returned to the office in which the proceeding was commenced.
Execution or Delivery of Instrument
(17) Where a person refuses or neglects to execute or deliver an instrument that becomes necessary under an order directing the reference, the referee may give directions for its execution or delivery.
Rulings
(18) Where the referee has made a ruling on the admissibility of evidence or any other matter relating to the conduct of the reference the referee shall, on the request of any party, set out the ruling and the reasons for it in the report or, in the discretion of the referee, in an interim report on the reference.
Preparation of Report
(19) When the hearing of the reference is completed, the referee shall fix a date to settle the report and the party having carriage of the reference shall serve notice of the date on all parties who appeared on the reference unless the referee dispenses with notice.
(20) The party having carriage of the reference shall prepare a draft report and present it to the referee on the day fixed for settling the report.
(21) When the referee has settled and signed the report, the party having carriage of the reference shall forthwith serve it on all parties who appeared on the reference and file a copy with proof of service.
(22) In a proceeding for the administration of the estate of a deceased person, the report shall, as far as possible, be in Form 55C.
PROCEDURE TO ASCERTAIN INTERESTED PERSONS AND VERIFY CLAIMS
Publication of Advertisements
55.03 (1) The referee may direct the publication of advertisements for creditors or beneficiaries of an estate or trust, other unascertained persons, or their successors.
Filing of Claims
(2) The advertisement shall specify a date by which and a place where interested persons may file their claims and shall notify them that, unless their claims are so filed, they may be excluded from the benefit of the order, but the referee may nevertheless accept a claim at a later time.
Examination of Claims
(3) Before the day specified by the referee for the consideration of claims filed in response to the advertisement, the executor, administrator or trustee, or such other person as the referee directs, shall examine the claims and prepare an affidavit verifying a list of the claims filed in response to the advertisement and stating which claims he or she believes should be disallowed and the reasons for that belief.
Adjudication of Contested Claims
(4) If a claim is contested, the referee shall order that a notice of contested claim (Form 55D), fixing a date for adjudication of the claim, be served on the claimant.
PROCEDURE ON TAKING OF ACCOUNTS
Powers of Referee
55.04 (1) On the taking of accounts, the referee may,
(a) take the accounts with rests or otherwise;
(b) take account of money received or that might have been received but for wilful neglect or default;
(c) make allowance for occupation rent and determine the amount;
(d) take into account necessary repairs, lasting improvements, costs and other expenses properly incurred; and
(e) make all just allowances.
Preparation of Accounts
(2) Where an account is to be taken, the party required to account, unless the referee directs otherwise, shall prepare the account in debit and credit form, verified by affidavit.
(3) The items on each side of the account shall be numbered consecutively, and the account shall be referred to in the affidavit as an exhibit and shall not be attached to the affidavit.
Books of Accounts as Proof
(4) The referee may direct that the books in which the accounts have been kept be taken as prima facie proof of the matters contained in them.
Production of Vouchers
(5) Before hearing a reference, the referee may fix a date for the purpose of taking the accounts and may direct the production and inspection of vouchers and, where appropriate, cross-examination of the party required to account on his or her affidavit, with a view to ascertaining what is admitted and what is contested between the parties.
Questioning Accounts
(6) A party who questions an account shall give particulars of the objection, with specific reference by number to the item in question, to the party required to account, and the referee may require the party to give further particulars of the objection.
DIRECTION FOR PAYMENT OF MONEY
Payment into Financial Institution
55.05 (1) Where under an order directing a reference the referee directs money to be paid at a specified time and place, the referee shall direct it to be paid into a financial institution to the credit of the party entitled or to the joint credit of the party entitled and the Accountant of the Superior Court of Justice or local registrar.
Payment Out
(2) Where money is directed to be paid out of court to the credit of the party entitled, the party may name the financial institution into which he or she wishes it to be paid.
(3) Where money has been paid to the joint credit of the party and the Accountant or registrar, the Accountant or registrar shall sign the cheque or direction for payment out on the production of the consent of the party paying in, verified by affidavit, or of the party's solicitor, or, in the absence of the consent, on the order of the referee.
Money Belonging to Minor
(4) Where it appears that money in court belongs to a minor, the referee shall require evidence of the age of the minor and shall, in the report, state the minor's birth date and full address.
Money to be Paid to Creditors
(5) Where an order of reference or a report directs the payment of money out of court to creditors, the person having carriage of the reference shall deposit with the Accountant or registrar a copy of the order or report and shall serve a notice to creditor (Form 55E) on each creditor stating that payment of the creditor's claim, as allowed, may be obtained from the Accountant or registrar.
REFERENCE FOR CONDUCT OF SALE
Method of Sale
55.06 (1) Where a sale is ordered, the referee may cause the property to be sold by public auction, private contract or tender, or partly by one method and partly by another.
Advertisement
(2) Where property is directed to be sold by auction or tender, the party having
carriage of the sale shall prepare a draft advertisement according to the instructions of the referee showing,
(a) the short title of the proceeding;
(b) that the sale is by order of the court;
(c) the time and place of the sale;
(d) a short description of the property to be sold;
(e) whether the property is to be sold in one lot or several and, if in several, in how many, and in what lots;
(f) the terms of payment;
(g) that the sale is subject to a reserve bid, if that is the case; and
(h) any conditions of sale different from those set out in (Form 55F).
Conditions of Sale
(3) The conditions of sale by auction or tender shall be those set out in (Form 55F), subject to such modifications as the referee directs.
Hearing for Directions
(4) At a hearing for directions under subrule 55.02(3), the referee shall,
(a) settle the form of the advertisement;
(b) fix the time and place of sale;
(c) name an auctioneer, where one is to be employed;
(d) give directions for publication of the advertisement;
(e) give directions for obtaining appraisals;
(f) fix a reserve bid, if any; and
(g) make all other arrangements necessary for the sale.
Who May Bid
(5) All parties may bid except the party having carriage of the sale and any trustee or agent for the party or other person in a fiduciary relationship to the party.
(6) Where the party having carriage of the sale wishes to bid, the referee may transfer carriage of the sale to another party or to any other person.
Who Conducts Sale
(7) Where no auctioneer is employed, the referee or a person designated by the referee shall conduct the sale.
Purchaser to Sign Agreement
(8) The purchaser shall enter into an agreement of purchase and sale at the time of sale.
Deposit
(9) The deposit required by the conditions of sale shall be paid to the party having carriage of the sale or the party's solicitor at the time of sale and the party or solicitor shall forthwith pay the money into court in the name of the purchaser.
Interim Report
(10) Where a sale is made through an auctioneer, the auctioneer shall make an affidavit concerning the result of the sale, and where no auctioneer is employed, the referee shall enter the result in the procedure book and, in either case, the referee may make an interim report on the sale (Form 55G).
Objection to Sale
(11) A party may object to a sale by making a motion to the referee to set it aside, and notice of the motion shall be served on all parties to the reference and on the purchaser, who shall be deemed to be a party for the purpose of the motion.
Completion of Sale
(12) The purchaser may pay the purchase money or the balance of it 'into court without order and, after the confirmation of the report on the sale, on notice to the party having carriage of the sale, the purchaser may obtain a vesting order.
(13) Where possession is wrongfully withheld from the purchaser, either the purchaser or the party having carriage of the sale may move for a writ of possession.
(14) The purchase money may be paid out of court in accordance with the report,
(a) on consent of the purchaser or his or her solicitor; or
(b) on proof to the Accountant or registrar that the purchaser has received a transfer or vesting order of the property for which the money in question was paid into court.
(15) No transfer shall be approved until the referee is satisfied that the purchase money has been paid into court and, where a mortgage is taken for part of the purchase money, that the mortgage has been registered and deposited with the Accountant or registrar.
REFERENCE TO APPOINT COMMITTEE, GUARDIAN OR RECEIVER
55.07 (1) Where, by an order directing a reference, a referee is directed to appoint a committee, guardian or receiver, the referee shall not report on the appointment until he or she has settled and approved any security required by the order and until the security has been filed with the Accountant or registrar.
(2) Where, by an order directing a reference or a report, the person so appointed is required to pass accounts or to pay money into court and has not done so, the referee may, on the passing of accounts, disallow any compensation and may charge the person with interest.