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Courts of Justice Act

R.R.O. 1990, REGULATION 194

RULES OF CIVIL PROCEDURE

Consolidation Period: From December 10, 2008 to the e-Laws currency date.

Last amendment: O. Reg. 438/08.

This is the English version of a bilingual regulation.

SUMMARY OF CONTENTS

GENERAL MATTERS

RULE 1CITATION, APPLICATION AND INTERPRETATION

CITATION

Title

1.01  (1)  These rules may be cited as the Rules of Civil Procedure. O. Reg. 575/07, s. 6 (1).

Subdivision

(2)  In these rules,

(a) all the provisions identified by the same number to the left of the decimal point comprise a Rule (for example, Rule 1, which consists of rules 1.01 to 1.09);

(b) a provision identified by a number with a decimal point is a rule (for example, rule 1.01); and

(c) a rule may be subdivided into,

(i) subrules (for example, subrule 1.01 (2)),

(ii) clauses (for example, clause 1.01 (2) (c) or 2.02 (a)),

(iii) subclauses (for example, subclause 1.01 (2) (c) (iii) or 7.01 (c) (i)),

(iv) paragraphs (for example, paragraph 1 of subrule 52.07 (1)), and

(v) definitions (for example, the definition of “action” in rule 1.03). R.R.O. 1990, Reg. 194, r. 1.01 (2); O. Reg. 284/01, s. 1; O. Reg. 575/07, s. 6 (2).

Alternative Method of Referring to Rules

(3)  In a proceeding in a court, it is sufficient to refer to a rule or subdivision of a rule as “rule” followed by the number of the rule, subrule, clause, subclause or paragraph (for example, rule 1.01, rule 1.01 (2), rule 1.01 (2) (c), rule 1.01 (2) (c) (iii) or rule 52.07 (1) 1). R.R.O. 1990, Reg. 194, r. 1.01 (3).

APPLICATION OF RULES

Court of Appeal and Superior Court of Justice

1.02  (1)  These rules apply to all civil proceedings in the Court of Appeal and in the Superior Court of Justice, subject to the following exceptions:

1. They do not apply to proceedings in the Small Claims Court, which are governed by Regulation 201 of the Revised Regulations of Ontario, 1990.

2. They do not apply to proceedings governed by Ontario Regulation 114/99 (Family Law Rules), except as provided in those rules.

3. They do not apply if a statute provides for a different procedure. R.R.O. 1990, Reg. 194, r. 1.02 (1); O. Reg. 484/94, s. 1; O. Reg. 288/99, s. 1 (1, 2); O. Reg. 292/99, s. 1 (1, 2); O. Reg. 131/04, s. 1 (1, 2).

Combined Proceeding in Family Court of Superior Court of Justice

(1.1)  Where a proceeding combines a matter to which the Family Law Rules apply with a matter to which these rules would ordinarily apply, the parties may agree, or the court on motion may order, that the Family Law Rules apply to the combined proceeding or part of it. O. Reg. 131/04, s. 1 (3).

(2)  Revoked: O. Reg. 504/00, s. 1.

(3)  Revoked: O. Reg. 504/00, s. 1.

(4)  Revoked: O. Reg. 504/00, s. 1.

DEFINITIONS

1.03  (1)  In these rules, unless the context requires otherwise,

“action” means a proceeding that is not an application and includes a proceeding commenced by,

(a) statement of claim,

(b) notice of action,

(c) counterclaim,

(d) crossclaim, or

(e) third or subsequent party claim; (“action”)

“appellant” means a person who brings an appeal; (“appelant”)

“appellate court” means the Court of Appeal or the Divisional Court, as the circumstances require; (“tribunal d’appel”)

“applicant” means a person who makes an application; (“requérant”)

“application” means a proceeding commenced by notice of application; (“requête”)

“county” includes a district, a regional or district municipality, and the City of Toronto; (“comté”)

“court” means the court in which a proceeding is pending and, in the case of a proceeding in the Superior Court of Justice, includes,

(a) a master having jurisdiction to hear motions under Rule 37, and

(b) a case management master; (“tribunal”)

Note: On January 1, 2010, the French version of clause (b) is amended. See: O. Reg. 438/08, ss. 66, 68 (1).

“defendant” means a person against whom an action is commenced; (“défendeur”)

“deliver” means serve and file with proof of service, and “delivery” has a corresponding meaning; (“remettre”, “remise”)

“disability”, where used in respect of a person, means that the person is,

(a) a minor,

(b) mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person has a guardian or not, or

(c) an absentee within the meaning of the Absentees Act; (“incapable”, “incapacité”)

“discovery” means discovery of documents, examination for discovery, inspection of property and medical examination of a party as provided under Rules 30 to 33; (“enquête préalable”)

“document” includes data and information in electronic form; (“document”)

“electronic” includes created, recorded, transmitted or stored in digital form or in other intangible form by electronic, magnetic or optical means or by any other means that has capabilities for creation, recording, transmission or storage similar to those means, and “electronically” has a corresponding meaning; (“électronique”, “par voie électronique”)

“hearing” means the hearing of an application, motion, reference, appeal or assessment of costs, or a trial; (“audience”)

“holiday” means,

(a) any Saturday or Sunday,

(b) New Year’s Day,

(b.1) Family Day,

(c) Good Friday,

(d) Easter Monday,

(e) Victoria Day,

(f) Canada Day,

(g) Civic Holiday,

(h) Labour Day,

(i) Thanksgiving Day,

(j) Remembrance Day,

(k) Christmas Day,

(l) Boxing Day, and

(m) any special holiday proclaimed by the Governor General or the Lieutenant Governor,

and where New Year’s Day, Canada Day or Remembrance Day falls on a Saturday or Sunday, the following Monday is a holiday, and where Christmas Day falls on a Saturday or Sunday, the following Monday and Tuesday are holidays, and where Christmas Day falls on a Friday, the following Monday is a holiday; (“jour férié”)

“judge” means a judge of the court; (“juge”)

“judgment” means a decision that finally disposes of an application or action on its merits and includes a judgment entered in consequence of the default of a party; (“jugement”)

“lawyer” means a person authorized under the Law Society Act to practise law in Ontario; (“avocat”)

“lawyer’s office” means the office of the lawyer of record as set out in the last document filed by him or her; (“bureau de l’avocat”)

“motion” means a motion in a proceeding or an intended proceeding; (“motion”)

“moving party” means a person who makes a motion; (“auteur de la motion”)

“order” includes a judgment; (“ordonnance”)

“originating process” means a document whose issuing commences a proceeding under these rules, and includes,

(a) a statement of claim,

(b) a notice of action,

(c) a notice of application,

(d) an application for a certificate of appointment of an estate trustee,

(e) a counterclaim against a person who is not already a party to the main action, and

(f) a third or subsequent party claim,

but does not include a counterclaim that is only against persons who are parties to the main action, a crossclaim or a notice of motion; (“acte introductif d’instance”)

“partial indemnity costs” mean costs awarded in accordance with Part I of Tariff A, and “on a partial indemnity basis” has a corresponding meaning; (“dépens d’indemnisation partielle”)

“person” includes a party to a proceeding; (“personne”)

“plaintiff” means a person who commences an action; (“demandeur”)

“proceeding” means an action or application; (“instance”)

“referee” means the person to whom a reference in a proceeding is directed; (“arbitre”)

“registrar” means the Registrar of the Divisional Court or Court of Appeal, or a local registrar of the Superior Court of Justice, as the circumstances require; (“greffier”)

“respondent” means a person against whom an application is made or an appeal is brought, as the circumstances require; (“intimé”)

“responding party” means a person against whom a motion is made; (“partie intimée”)

“statute” includes a statute passed by the Parliament of Canada; (“loi”)

“substantial indemnity costs” mean costs awarded in an amount that is 1.5 times what would otherwise be awarded in accordance with Part I of Tariff A, and “on a substantial indemnity basis” has a corresponding meaning. (“dépens d’indemnisation substantielle”)

Note: On January 1, 2010, subrule (1) is amended by adding the following definition:

“timetable” means a schedule for the completion of one or more steps required to advance the proceeding (including delivery of affidavits of documents, examinations under oath, where available, or motions), established by order of the court or by written agreement of the parties that is not contrary to an order. (“calendrier”)

See: O. Reg. 438/08, ss. 1, 68 (1).

R.R.O. 1990, Reg. 194, r. 1.03; O. Reg. 535/92, s. 2; O. Reg. 484/94, s. 2; O. Reg. 69/95, s. 1; O. Reg. 442/97, s. 1; O. Reg. 570/98, s. 1; O. Reg. 292/99, s. 1 (2); O. Reg. 427/01, s. 1 (1); O. Reg. 284/01, s. 2; O. Reg. 14/04, s. 1 (1); O. Reg. 131/04, s. 2; O. Reg. 42/05, s. 1; O. Reg. 260/05, s. 1; O. Reg. 575/07, s. 7.

(2)  Revoked: O. Reg. 14/04, s. 1 (2).

INTERPRETATION

General Principle

1.04  (1)  These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. R.R.O. 1990, Reg. 194, r. 1.04 (1).

Note: On January 1, 2010, rule 1.04 is amended by adding the following subrule:

Proportionality

(1.1)  In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding. O. Reg. 438/08, s. 2.

See: O. Reg. 438/08, ss. 2, 68 (1).

Matters Not Provided For

(2)  Where matters are not provided for in these rules, the practice shall be determined by analogy to them. R.R.O. 1990, Reg. 194, r. 1.04 (2).

Party Acting in Person

(3)  Where a party to a proceeding is not represented by a lawyer but acts in person in accordance with subrule 15.01 (2) or (3), anything these rules require or permit a lawyer to do shall be done by the party. R.R.O. 1990, Reg. 194, r. 1.04 (3); O. Reg. 575/07, s. 1.

“Party and Party” Costs

(4)  If a statute, regulation or other document refers to party and party costs, these rules apply as if the reference were to partial indemnity costs. O. Reg. 284/01, s. 3.

“Solicitor and Client” Costs

(5)  If a statute, regulation or other document refers to solicitor and client costs, these rules apply as if the reference were to substantial indemnity costs. O. Reg. 284/01, s. 3.

ORDERS ON TERMS

1.05  When making an order under these rules the court may impose such terms and give such directions as are just. R.R.O. 1990, Reg. 194, r. 1.05.

FORMS

Use of Forms

1.06  (1)  The forms prescribed by these rules shall be used where applicable and with such variations as the circumstances require. O. Reg. 77/06, s. 1.

Table of Forms

(2)  In these rules, when a form is referred to by number, the reference is to the form with that number that is described in the Table of Forms at the end of these rules and is available on the Internet through www.ontariocourtforms.on.ca. O. Reg. 77/06, s. 1.

PRACTICE DIRECTIONS

Definition

1.07  (1)  In this rule,

“practice direction” means a direction, notice, guide or similar publication for the purpose of governing, subject to these rules, the practice for proceedings. O. Reg. 132/04, s. 1.

Court of Appeal

(2)  A practice direction for proceedings in the Court of Appeal shall be signed by the Chief Justice of Ontario. O. Reg. 132/04, s. 1.

Superior Court of Justice

(3)  A practice direction for proceedings in the Superior Court of Justice throughout Ontario shall be signed by the Chief Justice of the Superior Court of Justice. O. Reg. 132/04, s. 1.

(4)  A practice direction for proceedings in the Superior Court of Justice in a region shall be signed by the regional senior judge and countersigned by the Chief Justice of the Superior Court of Justice. O. Reg. 132/04, s. 1.

Filing, Posting and Publication of Notice

(5)  A practice direction shall be filed with the secretary of the Civil Rules Committee and posted on the Ontario Courts website (www.ontariocourts.on.ca), and notice of the practice direction shall be published in the Ontario Reports. O. Reg. 132/04, s. 1.

Effective Date

(6)  A practice direction does not come into effect before it is filed and posted and notice of it is published as described in subrule (5). O. Reg. 132/04, s. 1.

TELEPHONE AND VIDEO CONFERENCES

Where Available

1.08  (1)  If facilities for a telephone or video conference are available at the court or are provided by a party, all or part of any of the following proceedings or steps in a proceeding may be heard or conducted by telephone or video conference as permitted by subrules (2) to (5):

1. A motion (Rule 37).

2. An application (Rule 38).

3. A status hearing (Rule 48.14).

4. At trial, the oral evidence of a witness and the argument.

5. A reference (Rule 55.02).

6. An appeal or a motion for leave to appeal (Rules 61 and 62).

7. A proceeding for judicial review.

8. A pre-trial conference, a case conference, a settlement conference or a trial management conference. O. Reg. 288/99, s. 2; O. Reg. 24/00, s. 1.

Note: On January 1, 2010, paragraph 8 is revoked and the following substituted:

8. A pre-trial conference or case conference.

See: O. Reg. 438/08, ss. 3 (1), 68 (1).

Consent

(2)  If the parties consent to a telephone or video conference and if the presiding judge or officer permits it, one of the parties shall make the necessary arrangements. O. Reg. 288/99, s. 2.

Order, No Consent

(3)  If the parties do not consent, the court on motion may make an order directing a telephone or video conference on such terms as are just. O. Reg. 288/99, s. 2.

Note: On January 1, 2010, subrule (3) is amended by striking out “the court on motion may make an order” and substituting “the court may, on motion or on its own initiative, make an order”. See: O. Reg. 438/08, ss. 3 (2), 68 (1).

(4)  The judge or officer presiding at a proceeding or step in a proceeding may set aside or vary an order made under subrule (3). O. Reg. 288/99, s. 2.

Factors to Consider

(5)  In deciding whether to permit or to direct a telephone or video conference, the court shall consider,

(a) the general principle that evidence and argument should be presented orally in open court;

(b) the importance of the evidence to the determination of the issues in the case;

(c) the effect of the telephone or video conference on the court’s ability to make findings, including determinations about the credibility of witnesses;

(d) the importance in the circumstances of the case of observing the demeanour of a witness;

(e) whether a party, witness or lawyer for a party is unable to attend because of infirmity, illness or any other reason;

(f) the balance of convenience between the party wishing the telephone or video conference and the party or parties opposing; and

(g) any other relevant matter. O. Reg. 288/99, s. 2; O. Reg. 575/07, s. 1.

Arrangements for Conference

(6)  Where the court permits or directs a telephone or video conference, the court may direct a party to make the necessary arrangements and to give notice of those arrangements to the other parties and to the court. O. Reg. 288/99, s. 2.

VIDEO CONFERENCE PILOT PROJECT — REFERENCES UNDER THE SOLICITORS ACT

Application

1.08.1  (1)  This rule applies to every reference under the Solicitors Act of a lawyer’s bill for assessment that is ordered to be held in a court located in,

(a) the Town of Cochrane;

(b) the Town of Fort Frances;

(c) the City of Kenora;

(d) the City of Sault Ste. Marie;

(e) the City of Greater Sudbury; or

(f) the City of Thunder Bay. O. Reg. 573/07, s. 1.

Assessment by Video Conference

(2)  Despite rule 1.08, all or part of a reference to which this rule applies may be heard or conducted by video conference at two or more locations referred to in subrule (3) if a party to the reference makes a request for video conference in accordance with subrule (4), and the presiding officer grants the request. O. Reg. 573/07, s. 1.

Location

(3)  The following are the locations in which all or part of a reference to which this rule applies may be heard or conducted by video conference:

1. Any of the courts referred to in subrule (1).

2. The Small Claims Court located in the City of Dryden. O. Reg. 573/07, s. 1.

Request

(4)  A party may, within two days after service of a notice of appointment respecting a reference to which this rule applies, make a request for video conference under subrule (2) by,

(a) completing a request form provided by the Ministry of the Attorney General for the purpose and available from any court referred to in subrule (1); and

(b) serving the request form and filing it with proof of service in the court in which the order for the reference was made. O. Reg. 573/07, s. 1.

Objection

(5)  A party on whom a request for video conference is served may, within two days after being served with the request, object to the video conference by,

(a) completing an objection form provided by the Ministry of the Attorney General for the purpose and available from any court referred to in subrule (1); and

(b) serving the objection form and filing it with proof of service in the court in which the order for the reference was made. O. Reg. 573/07, s. 1.

Factors to Consider

(6)  In deciding whether to grant a request for video conference under subrule (2), the presiding officer shall consider,

(a) any objection made in accordance with subrule (5);

(b) the balance of convenience between the party making the request and the other party; and

(c) any other relevant matter. O. Reg. 573/07, s. 1.

Setting Aside or Varying Order

(7)  The presiding officer may set aside or vary an order made under subrule (2). O. Reg. 573/07, s. 1.

Arrangements and Filing of Documents

(8)  If the presiding officer grants a request for video conference, the following requirements apply:

1. The court in which the order for the reference was made shall make the necessary arrangements for the conference and shall notify the parties of them.

2. Despite subrule 55.02 (16), the parties shall file all documents pertaining to the reference in the court in which the order for the reference was made at least five days before the hearing date. O. Reg. 573/07, s. 1.

Revocation

(9)  This rule is revoked on January 1, 2010. O. Reg. 573/07, s. 1.

COMMUNICATIONS OUT OF COURT

1.09  When a proceeding is pending before the court, no party to the proceeding and no party’s lawyer shall communicate about the proceeding with a judge, master or case management master out of court, directly or indirectly, unless,

Note: On January 1, 2010, the French version of rule 1.09 is amended in the portion before clause (a). See: O. Reg. 438/08, ss. 66, 68 (1).

(a) all the parties consent, in advance, to the out-of-court communication; or

(b) the court directs otherwise. O. Reg. 132/04, s. 2.

RULE 2NON-COMPLIANCE WITH THE RULES

EFFECT OF NON-COMPLIANCE

2.01  (1)  A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court,

(a) may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute; or

(b) only where and as necessary in the interest of justice, may set aside the proceeding or a step, document or order in the proceeding in whole or in part. R.R.O. 1990, Reg. 194, r. 2.01 (1).

(2)  The court shall not set aside an originating process on the ground that the proceeding should have been commenced by an originating process other than the one employed. R.R.O. 1990, Reg. 194, r. 2.01 (2).

ATTACKING IRREGULARITY

2.02  A motion to attack a proceeding or a step, document or order in a proceeding for irregularity shall not be made, except with leave of the court,

(a) after the expiry of a reasonable time after the moving party knows or ought reasonably to have known of the irregularity; or

(b) if the moving party has taken any further step in the proceeding after obtaining knowledge of the irregularity. R.R.O. 1990, Reg. 194, r. 2.02.

COURT MAY DISPENSE WITH COMPLIANCE

2.03  The court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time. R.R.O. 1990, Reg. 194, r. 2.03.

RULE 3TIME

COMPUTATION

3.01  (1)  In the computation of time under these rules or an order, except where a contrary intention appears,

(a) where there is a reference to a number of days between two events, they shall be counted by excluding the day on which the first event happens and including the day on which the second event happens, even if they are described as clear days or the words “at least” are used;

(b) where a period of less than seven days is prescribed, holidays shall not be counted;

Note: On January 1, 2010, clause (b) is amended by striking out “less than seven days” and substituting “seven days or less”. See: O. Reg. 438/08, ss. 4, 68 (1).

(c) where the time for doing an act under these rules expires on a holiday, the act may be done on the next day that is not a holiday; and

(d) service of a document, other than an originating process, made after 4 p.m. or at any time on a holiday shall be deemed to have been made on the next day that is not a holiday. R.R.O. 1990, Reg. 194, r. 3.01 (1).

(2)  Where a time of day is mentioned in these rules or in any document in a proceeding, the time referred to shall be taken as the time observed locally. R.R.O. 1990, Reg. 194, r. 3.01 (2).

EXTENSION OR ABRIDGMENT

General Powers of Court

3.02  (1)  Subject to subrule (3), the court may by order extend or abridge any time prescribed by these rules or an order, on such terms as are just. R.R.O. 1990, Reg. 194, r. 3.02 (1).

(2)  A motion for an order extending time may be made before or after the expiration of the time prescribed. R.R.O. 1990, Reg. 194, r. 3.02 (2).

Times in Appeals

(3)  An order under subrule (1) extending or abridging a time prescribed by these rules and relating to an appeal to an appellate court may be made only by a judge of the appellate court. R.R.O. 1990, Reg. 194, r. 3.02 (3).

Consent in Writing

(4)  A time prescribed by these rules for serving, filing or delivering a document may be extended or abridged by filing a consent, except as provided in subrule 77.01 (4) (no extension by consent in case management). O. Reg. 555/96, s. 1; O. Reg. 427/01, s. 2.

Note: On January 1, 2010, subrule (4) is amended by striking out “except as provided in subrule 77.01 (4) (no extension by consent in case management)” at the end. See: O. Reg. 438/08, ss. 5, 68 (1).

WHEN PROCEEDINGS MAY BE HEARD

Hearings Throughout the Year

3.03  (1)  Proceedings may be heard throughout the year, except that from December 24th to the following January 6th no trial of an action shall be held unless the consent of all parties is filed or the court orders otherwise. O. Reg. 770/92, s. 3; O. Reg. 427/01, s. 3.

In Absence of Opposite Party

(2)  No motion, reference, examination, assessment of costs or other matter, except a motion made without notice, shall proceed before a judge, master or other officer in the absence of the opposite party until fifteen minutes after the time fixed for it. R.R.O. 1990, Reg. 194, r. 3.03 (2).

Note: On January 1, 2010, Rule 3 is amended by adding the following rule:

TIMETABLES

Amendment

3.04  (1)  Parties may, by written agreement, amend a timetable established by order of a judge or case management master, unless the order expressly prohibits amendment by the parties. O. Reg. 438/08, s. 6.

Same

(2)  Parties may, by written agreement, amend a timetable established by written agreement of the parties and amended by the order of a judge or case management master, unless the order expressly prohibits amendment by the parties. O. Reg. 438/08, s. 6.

Limitation

(3)  Despite subrules (1) and (2), in the case of an action, an agreement to amend a timetable shall not amend the date before which the action shall be set down for trial or restored to a trial list, as the case may be. O. Reg. 438/08, s. 6.

Non-Compliance

(4)  If a party fails to comply with a timetable, a judge or case management master may, on any other party’s motion,

(a) stay the party’s proceeding;

(b) dismiss the party’s proceeding or strike out the party’s defence; or

(c) make such other order as is just. O. Reg. 438/08, s. 6.

See: O. Reg. 438/08, ss. 6, 68 (1).

RULE 4COURT DOCUMENTS

FORMAT

Standards — Documents in Writing

4.01  (1)  A document in writing in a proceeding shall meet the following standards:

1. The text shall be printed, typewritten, written or reproduced legibly, with double spaces between the lines and a margin of approximately 40 millimetres on the left-hand side.

2. The characters used shall be of at least 12 point or 10 pitch size.

3. Good quality white paper or good quality near white recycled paper 216 millimetres by 279 millimetres shall be used. O. Reg. 427/01, s. 4 (1).

One Side or Both

(2)  The text may appear on one side or on both sides of the paper. O. Reg. 396/91, s. 2.

Standards — Electronic Documents

(3)  A document mentioned in rule 4.05.1 is sufficient, despite subrule (1), if it meets the standards of the software authorized by the Ministry of the Attorney General. O. Reg. 14/04, s. 2.

(4)-(11)  Revoked: O. Reg. 14/04, s. 2.

4.01.1  Revoked: O. Reg. 288/99, s. 4.

CONTENTS

General Heading

4.02  (1)  Every document in a proceeding shall have a heading in accordance with Form 4A (actions) or 4B (applications) that sets out,

(a) the name of the court and the court file number; and

(b) the title of the proceeding in accordance with rule 14.06 (action or application), but in a document other than an originating process, pleading, record, order or report, where there are more than two parties to the proceeding, a short title showing the names of the first party on each side followed by the words “and others” may be used. R.R.O. 1990, Reg. 194, r. 4.02 (1); O. Reg. 131/04, s. 3.

(1.1)  Clause (1) (b) does not apply to documents in proceedings under Rules 74 and 75. O. Reg. 484/94, s. 3.

Body of Document

(2)  Every document in a proceeding shall contain,

(a) the title of the document;

(b) its date;

(c) where the document is filed by a party and not issued by a registrar or is an originating process, the name, address and telephone number of the lawyer filing the document or, where a party acts in person, his or her name, address for service and telephone number; and

(d) where the document is issued by a registrar, the address of the court office in which the proceeding was commenced or, in the case of an application to the Divisional Court, the address of the court office in the place where the application is to be heard. R.R.O. 1990, Reg. 194, r. 4.02 (2); O. Reg. 575/07, s. 1.

Backsheet

(3)  Every document in a proceeding shall have a backsheet in accordance with Form 4C that sets out,

(a) the short title of the proceeding;

(b) the name of the court and the court file number;

(c) in the case of an affidavit, the deponent’s name and the date when he or she swore it;

(d) the location of the court office in which the proceeding was commenced;

(e) the title of the document;

(f) The name, address, telephone number and law society Registration number of the lawyer serving or filing the document or, where a party acts in person, his or her name, address for service and telephone number;

(g) the fax number, if any, of the lawyer serving or filing the document or, where a party acts in person, his or her fax number, if any; and

(h) the fax number, if known, of the person on whom the document is served. R.R.O. 1990, Reg. 194, r. 4.02 (3); O. Reg. 333/96, s. 1 (1); O. Reg. 457/01, s. 1; O. Reg. 575/07, s. 1.

(4)  Revoked: O. Reg. 333/96, s. 1 (2).

BILINGUAL DOCUMENTS

4.02.1  A pleading or other documents written in French that may be filed under section 126 of the Courts of Justice Act may also include a version of all or part of the text written in English. O. Reg. 653/00, s. 1.

CERTIFIED COPIES OF COURT DOCUMENTS

4.03  On the requisition of a person entitled to see a document in the court file under section 137 of the Courts of Justice Act and on payment of the prescribed fee the registrar shall issue a certified copy of the document. R.R.O. 1990, Reg. 194, r. 4.03.

NOTICE TO BE GIVEN IN WRITING OR ELECTRONICALLY

4.04  (1)  A notice required to be given by these rules shall be given,

(a) in writing; or

(b) electronically, if the use of electronic means is authorized. O. Reg. 427/01, s. 5 (1).

(2)  Revoked: O. Reg. 14/04, s. 3.

(3)  Revoked: O. Reg. 14/04, s. 3.

ISSUING AND FILING OF DOCUMENTS

Issuing Documents

4.05  (1)  A document may be issued on personal attendance in the court office by the party seeking to issue it or by someone on the party’s behalf. R.R.O. 1990, Reg. 194, r. 4.05 (1); O. Reg. 452/98, s. 3 (1).

Electronic Issuing

(1.1)  A document mentioned in rule 4.05.1 may be issued electronically by using the authorized software. O. Reg. 14/04, s. 4 (1).

Deemed Issuing

(1.2)  A document issued under subrule (1.1) shall be deemed to have been issued by the Superior Court of Justice. O. Reg. 14/04, s. 4 (1).

(1.2.1)  Revoked: O. Reg. 14/04, s. 4 (1).

(1.2.2)  Revoked: O. Reg. 14/04, s. 4 (1).

Notice — Document Issued

(1.3)  After a document is issued electronically, notice that it was issued shall be sent to the party that had it issued. O. Reg. 427/01, s. 6 (3).

Place of Filing

(2)  The following requirements govern the place of filing of documents in proceedings, unless the documents are filed in the course of a hearing or these rules provide otherwise:

1. All documents required to be filed in a proceeding shall be filed in the court office in which the proceeding was commenced, subject to paragraphs 2 and 3.

Note: On January 1, 2010, paragraph 1 is amended by striking out “paragraphs 2 and 3” at the end and substituting “paragraphs 2, 3 and 4”. See: O. Reg. 438/08, ss. 7 (1), 68 (1).

2. If the proceeding has been transferred to another county in accordance with rule 13.1.02, the documents shall be filed in the court office in the new county, subject to paragraph 3.

3. An affidavit, transcript, record or factum to be used at a hearing shall be filed in the court office in the county where the hearing is to be held. O. Reg. 14/04, s. 4 (2).

Note: On January 1, 2010, subrule (2) is amended by adding the following paragraph:

4. Documents relating to a motion to transfer a proceeding to another county under rule 13.1.02 shall be filed in the court office of the county to which the transfer is sought, if subrule 13.1.02 (3.1) applies.

See: O. Reg. 438/08, ss. 7 (2), 68 (1).

(3)  Revoked: O. Reg. 14/04, s. 4 (2).

Filing by Leaving in Court Office or by Mail

(4)  Any document, other than one that is to be issued, may be filed by leaving it in the proper court office or mailing it to the proper court office, accompanied by the prescribed fee. R.R.O. 1990, Reg. 194, r. 4.05 (4).

Electronic Filing

(4.1)  A document mentioned in rule 4.05.1 may be filed electronically by using the authorized software. O. Reg. 14/04, s. 4 (3).

(4.1.1)  Revoked: O. Reg. 14/04, s. 4 (3).

(4.1.2)  Revoked: O. Reg. 14/04, s. 4 (3).

Notice — Document Filed

(4.2)  After a document is filed electronically, notice that it was filed shall be sent to the party that filed it. O. Reg. 427/01, s. 6 (6).

Date of Filing where Filed by Mail

(5)  Where a document is filed by mail, the date of the filing stamp of the court office on the document shall be deemed to be the date of its filing, unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 4.05 (5).

Where Document Filed by Mail not Received

(6)  Where a court office has no record of the receipt of a document alleged to have been filed by mail, the document shall be deemed not to have been filed, unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 4.05 (6).

ELECTRONIC DOCUMENTS

4.05.1  (1)  Revoked: O. Reg. 14/04, s. 5 (1).

(2)  A lawyer, another person who has filed a requisition with the registrar or the Workplace Safety and Insurance Board may use the authorized software to issue or to file electronically the following documents, to date them and to record the date of issue or filing:

1. A declaration under subrule 60.02 (3) to enforce a certificate of assessment.

2. A requisition under subrule 60.07 (1.1) or (1.2).

3. A writ of seizure and sale under subrule 60.07 (1.1) or (1.2).

4. A request to renew under subrule 60.07 (8.1).

5. An amendment to the writ under subrule 60.07 (11.1).

6. A change of address under subrule 60.07 (12.2).

7. A withdrawal of writ under subrule 60.15 (4). O. Reg. 288/99, s. 6; O. Reg. 263/03, s. 1 (1); O. Reg. 14/04, s. 5 (2).

(3)  The Minister of Finance may use the authorized software to file electronically the following documents, to date them and to record the date of issue or filing:

1. A warrant described in rule 60.07.1.

2. A request to renew under subrule 60.07 (8.1) that relates to a warrant described in rule 60.07.1.

3. An amendment under subrule 60.07 (11.1) that relates to a warrant described in rule 60.07.1.

4. A withdrawal under subrule 60.15 (4) that relates to a warrant described in rule 60.07.1. O. Reg. 263/03, s. 1 (2); O. Reg. 14/04, s. 5 (3).

4.05.2  Revoked: R.R.O. 1990, Reg. 194, r. 4.05.2 (6). See: O. Reg. 308/02, s. 5; O. Reg. 14/04, s. 6.

AFFIDAVITS

Format

4.06  (1)  An affidavit used in a proceeding shall,

(a) be in Form 4D;

(b) be expressed in the first person;

(c) state the full name of the deponent and, if the deponent is a party or a lawyer, officer, director, member or employee of a party, shall state that fact;

(d) be divided into paragraphs, numbered consecutively, with each paragraph being confined as far as possible to a particular statement of fact; and

(e) be signed by the deponent and sworn or affirmed before a person authorized to administer oaths or affirmations. R.R.O. 1990, Reg. 194, r. 4.06 (1); O. Reg. 575/07, s. 1.

Contents

(2)  An affidavit shall be confined to the statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except where these rules provide otherwise. R.R.O. 1990, Reg. 194, r. 4.06 (2).

Exhibits

(3)  An exhibit that is referred to in an affidavit shall be marked as such by the person taking the affidavit and where the exhibit,

(a) is referred to as being attached to the affidavit, it shall be attached to and filed with the affidavit;

(b) is referred to as being produced and shown to the deponent, it shall not be attached to the affidavit or filed with it, but shall be left with the registrar for the use of the court, and on the disposition of the matter in respect of which the affidavit was filed, the exhibit shall be returned to the lawyer or party who filed the affidavit, unless the court orders otherwise; and

(c) is a document, a copy shall be served with the affidavit, unless it is impractical to do so. R.R.O. 1990, Reg. 194, r. 4.06 (3); O. Reg. 575/07, s. 1.

By Two or More Deponents

(4)  Where an affidavit is made by two or more deponents, there shall be a separate jurat for each deponent, unless all the deponents make the affidavit before the same person at the same time, in which case one jurat containing the words “Sworn (or affirmed) by the above-named deponents” may be used. R.R.O. 1990, Reg. 194, r. 4.06 (4).

For a Corporation

(5)  Where these rules require an affidavit to be made by a party and the party is a corporation, the affidavit may be made for the corporation by an officer, director or employee of the corporation. R.R.O. 1990, Reg. 194, r. 4.06 (5).

For a Partnership

(6)  Where these rules require an affidavit to be made by a party and the party is a partnership, the affidavit may be made for the partnership by a member or employee of the partnership. R.R.O. 1990, Reg. 194, r. 4.06 (6).

By an Illiterate or Blind Person

(7)  Where it appears to a person taking an affidavit that the deponent is illiterate or blind, the person shall certify in the jurat that the affidavit was read in his or her presence to the deponent, that the deponent appeared to understand it, and that the deponent signed the affidavit or placed his or her mark on it in the presence of the person taking the affidavit. R.R.O. 1990, Reg. 194, r. 4.06 (7).

By a Person who does not Understand the Language

(8)  Where it appears to a person taking an affidavit that the deponent does not understand the language used in the affidavit, the person shall certify in the jurat that the affidavit was interpreted to the deponent in the person’s presence by a named interpreter who took an oath or made an affirmation before him or her to interpret the affidavit correctly. R.R.O. 1990, Reg. 194, r. 4.06 (8).

Alterations

(9)  Any interlineation, erasure or other alteration in an affidavit shall be initialled by the person taking the affidavit and, unless so initialled, the affidavit shall not be used without leave of the presiding judge or officer. R.R.O. 1990, Reg. 194, r. 4.06 (9).

BINDING OF DOCUMENTS

Records

4.07  (1)  Records for motions, applications, trials and appeals shall have a light blue backsheet. O. Reg. 219/91, s. 2.

Transcripts

(2)  Transcripts of evidence for use on a motion or application or at trial shall have a light grey backsheet. O. Reg. 219/91, s. 2.

Appeal Book and Compendium

(3)  An appeal book and compendium shall be bound front and back in buff covers. O. Reg. 19/03, s. 1 (1).

Transcripts on Appeal

(4)  Transcripts of evidence for use in an appeal shall be bound front and back in red covers, except where the transcript forms part of the appeal book and compendium or record and, where there is more than one volume of transcripts, the volumes shall be clearly numbered. O. Reg. 219/91, s. 2; O. Reg. 19/03, s. 1 (2).

Factums and Case Books

(5)  A factum or case book filed by an applicant, moving party or appellant shall be bound front and back in white covers, and a factum or case book of a respondent or responding party shall be bound front and back in green covers. O. Reg. 770/92, s. 4.

(5.1)  Revoked: O. Reg. 19/03, s. 1 (3).

Cover Stock

(6)  Backsheets and covers shall be of 176g/m² cover stock. O. Reg. 219/91, s. 2.

REQUISITION

4.08  Where a party is entitled to require the registrar to carry out a duty under these rules, the party may do so by filing a requisition (Form 4E) and paying the prescribed fee, if any. R.R.O. 1990, Reg. 194, r. 4.08.

TRANSCRIPTS

Paper Size

4.09  (1)  Evidence shall be transcribed on paper 216 millimetres by 279 millimetres in size with a margin 25 millimetres wide on the left side delimited by a vertical line. R.R.O. 1990, Reg. 194, r. 4.09 (1).

Heading

(2)  The name of the court or, in the case of an examiner, the examiner’s name, title and location shall be stated on a single line no more than 15 millimetres from the top of the first page. R.R.O. 1990, Reg. 194, r. 4.09 (2).

Standards

(3)  The text shall be typewritten on thirty-two lines numbered in the margin at every fifth line. R.R.O. 1990, Reg. 194, r. 4.09 (3).

(4)  Headings, such as swearing of a witness, direct examination and cross-examination, shall be capitalized and separated from the preceding text by the space of a numbered line, and the number of lines of text on the page may be reduced by one for each heading that appears on the page. R.R.O. 1990, Reg. 194, r. 4.09 (4).

(5)  Every question shall commence on a new line and shall begin with the designation “Q.”, followed, within 10 millimetres, by the question. R.R.O. 1990, Reg. 194, r. 4.09 (5).

(6)  Every answer shall commence on a new line and shall begin with the designation “A.”, followed, within 10 millimetres, by the answer. R.R.O. 1990, Reg. 194, r. 4.09 (6).

(7)  The first line of a question or answer shall be indented 35 millimetres from the margin and shall be 130 millimetres in length. R.R.O. 1990, Reg. 194, r. 4.09 (7).

(8)  In a transcript of evidence taken in court, every line of a question or answer, other than the first line, shall begin at the margin and shall be 165 millimetres in length. R.R.O. 1990, Reg. 194, r. 4.09 (8).

(9)  In a transcript of evidence taken out of court, every line of a question or answer, other than the first line, shall begin 15 millimetres from the margin and shall be 150 millimetres in length, and questions shall be numbered consecutively by means of a number placed in the 15 millimetres to the right of the margin. R.R.O. 1990, Reg. 194, r. 4.09 (9).

(10)  Lines of text other than questions and answers shall be indented 35 millimetres from the margin and shall be 130 millimetres in length. R.R.O. 1990, Reg. 194, r. 4.09 (10).

(11)  Every transcript of evidence taken in court or out of court shall have,

(a) a cover page setting out,

(i) the court,

(ii) the title of the proceeding,

(iii) the nature of the hearing or examination,

(iv) the place and date of the hearing or examination,

(v) the name of the presiding judge or officer, and

(vi) the names of the lawyers representing the parties; and

(b) a table of contents setting out,

(i) the name of each witness with the page number at which the examination, cross-examination and re-examination of the witness commence,

(ii) the page number at which the charge to the jury, the objections to the charge and the re-charge commence,

(iii) the page number at which the reasons for judgment commence,

(iv) a list of the exhibits with the page number at which they were made exhibits, and

(v) at the foot of the page, the date the transcript was ordered, the date it was completed and the date the parties were notified of its completion. R.R.O. 1990, Reg. 194, r. 4.09 (11); O. Reg. 575/07, s. 8.

TRANSMISSION OF DOCUMENTS

4.10  (1)  Where documents filed with the court or exhibits in the custody of an officer are required for use at another location, the registrar shall send them to the registrar at the other location on a party’s requisition, on payment of the prescribed fee. R.R.O. 1990, Reg. 194, r. 4.10 (1).

(2)  Documents or exhibits that have been filed at or sent to a location other than where the proceeding was commenced for a hearing at that location shall be sent by the registrar, after the completion of the hearing, to the registrar at the court office where the proceeding was commenced. R.R.O. 1990, Reg. 194, r. 4.10 (2).

NOTICE OF CONSTITUTIONAL QUESTION

4.11  The notice of constitutional question referred to in section 109 of the Courts of Justice Act shall be in Form 4F. R.R.O. 1990, Reg. 194, r. 4.11.

Note: On January 1, 2010, the Regulation is amended by adding the following Rule:

RULE 4.1 DUTY OF EXPERT

DUTY OF EXPERT

4.1.01  (1)  It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,

(a) to provide opinion evidence that is fair, objective and non-partisan;

(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and

(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue. O. Reg. 438/08, s. 8.

Duty Prevails

(2)  The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged. O. Reg. 438/08, s. 8.

See: O. Reg. 438/08, ss. 8, 68 (1).

PARTIES AND JOINDER

RULE 5JOINDER OF CLAIMS AND PARTIES

JOINDER OF CLAIMS

5.01  (1)  A plaintiff or applicant may in the same proceeding join any claims the plaintiff or applicant has against an opposite party. R.R.O. 1990, Reg. 194, r. 5.01 (1).

(2)  A plaintiff or applicant may sue in different capacities and a defendant or respondent may be sued in different capacities in the same proceeding. R.R.O. 1990, Reg. 194, r. 5.01 (2).

(3)  Where there is more than one defendant or respondent, it is not necessary for each to have an interest in all the relief claimed or in each claim included in the proceeding. R.R.O. 1990, Reg. 194, r. 5.01 (3).

JOINDER OF PARTIES

Multiple Plaintiffs or Applicants

5.02  (1)  Two or more persons who are represented by the same lawyer of record may join as plaintiffs or applicants in the same proceeding where,

(a) they assert, whether jointly, severally or in the alternative, any claims to relief arising out of the same transaction or occurrence, or series of transactions or occurrences;

(b) a common question of law or fact may arise in the proceeding; or

(c) it appears that their joining in the same proceeding may promote the convenient administration of justice. R.R.O. 1990, Reg. 194, r. 5.02 (1); O. Reg. 575/07, s. 9.

Multiple Defendants or Respondents

(2)  Two or more persons may be joined as defendants or respondents where,

(a) there are asserted against them, whether jointly, severally or in the alternative, any claims to relief arising out of the same transaction or occurrence, or series of transactions or occurrences;

(b) a common question of law or fact may arise in the proceeding;

(c) there is doubt as to the person or persons from whom the plaintiff or applicant is entitled to relief;

(d) damage or loss has been caused to the same plaintiff or applicant by more than one person, whether or not there is any factual connection between the several claims apart from the involvement of the plaintiff or applicant, and there is doubt as to the person or persons from whom the plaintiff or applicant is entitled to relief or the respective amounts for which each may be liable; or

(e) it appears that their being joined in the same proceeding may promote the convenient administration of justice. R.R.O. 1990, Reg. 194, r. 5.02 (2).

JOINDER OF NECESSARY PARTIES

General Rule

5.03  (1)  Every person whose presence is necessary to enable the court to adjudicate effectively and completely on the issues in a proceeding shall be joined as a party to the proceeding. R.R.O. 1990, Reg. 194, r. 5.03 (1).

Claim by Person Jointly Entitled

(2)  A plaintiff or applicant who claims relief to which any other person is jointly entitled with the plaintiff or applicant shall join, as a party to the proceeding, each person so entitled. R.R.O. 1990, Reg. 194, r. 5.03 (2).

Claim by Assignee of Chose in Action

(3)  In a proceeding by the assignee of a debt or other chose in action, the assignor shall be joined as a party unless,

(a) the assignment is absolute and not by way of charge only; and

(b) notice in writing has been given to the person liable in respect of the debt or chose in action that it has been assigned to the assignee. R.R.O. 1990, Reg. 194, r. 5.03 (3).

Power of Court to Add Parties

(4)  The court may order that any person who ought to have been joined as a party or whose presence as a party is necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding shall be added as a party. R.R.O. 1990, Reg. 194, r. 5.03 (4).

Party Added as Defendant or Respondent

(5)  A person who is required to be joined as a party under subrule (1), (2) or (3) and who does not consent to be joined as a plaintiff or applicant shall be made a defendant or respondent. R.R.O. 1990, Reg. 194, r. 5.03 (5).

Relief Against Joinder of Party

(6)  The court may by order relieve against the requirement of joinder under this rule. R.R.O. 1990, Reg. 194, r. 5.03 (6).

MISJOINDER, NON-JOINDER AND PARTIES INCORRECTLY NAMED

Proceeding not to be Defeated

5.04  (1)  No proceeding shall be defeated by reason of the misjoinder or non-joinder of any party and the court may, in a proceeding, determine the issues in dispute so far as they affect the rights of the parties to the proceeding and pronounce judgment without prejudice to the rights of all persons who are not parties. R.R.O. 1990, Reg. 194, r. 5.04 (1).

Adding, Deleting or Substituting Parties

(2)  At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. R.R.O. 1990, Reg. 194, r. 5.04 (2).

Adding Plaintiff or Applicant

(3)  No person shall be added as a plaintiff or applicant unless the person’s consent is filed. R.R.O. 1990, Reg. 194, r. 5.04 (3).

RELIEF AGAINST JOINDER

5.05  Where it appears that the joinder of multiple claims or parties in the same proceeding may unduly complicate or delay the hearing or cause undue prejudice to a party, the court may,

(a) order separate hearings;

(b) require one or more of the claims to be asserted, if at all, in another proceeding;

(c) order that a party be compensated by costs for having to attend, or be relieved from attending, any part of a hearing in which the party has no interest;

(d) stay the proceeding against a defendant or respondent, pending the hearing of the proceeding against another defendant or respondent, on condition that the party against whom the proceeding is stayed is bound by the findings made at the hearing against the other defendant or respondent; or

(e) make such other order as is just. R.R.O. 1990, Reg. 194, r. 5.05.

RULE 6CONSOLIDATION OR HEARING TOGETHER

WHERE ORDER MAY BE MADE

6.01  (1)  Where two or more proceedings are pending in the court and it appears to the court that,

(a) they have a question of law or fact in common;

(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or

(c) for any other reason an order ought to be made under this rule,

the court may order that,

(d) the proceedings be consolidated, or heard at the same time or one immediately after the other; or

(e) any of the proceedings be,

(i) stayed until after the determination of any other of them, or

(ii) asserted by way of counterclaim in any other of them. R.R.O. 1990, Reg. 194, r. 6.01 (1).

(2)  In the order, the court may give such directions as are just to avoid unnecessary costs or delay and, for that purpose, the court may dispense with service of a notice of listing for trial and abridge the time for placing an action on the trial list. R.R.O. 1990, Reg. 194, r. 6.01 (2).

DISCRETION OF PRESIDING JUDGE

6.02  Where the court has made an order that proceedings be heard either at the same time or one immediately after the other, the judge presiding at the hearing nevertheless has discretion to order otherwise. R.R.O. 1990, Reg. 194, r. 6.02.

Note: On January 1, 2010, the Regulation is amended by adding the following Rule:

RULE 6.1 SEPARATE HEARINGS

SEPARATE HEARINGS

6.1.01  With the consent of the parties, the court may order a separate hearing on one or more issues in a proceeding, including separate hearings on the issues of liability and damages. O. Reg. 438/08, s. 9.

See: O. Reg. 438/08, ss. 9, 68 (1).

RULE 7PARTIES UNDER DISABILITY

REPRESENTATION BY LITIGATION GUARDIAN

Party under Disability

7.01  (1)  Unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian. O. Reg. 69/95, s. 2.

Substitute Decisions Act Applications

(2)  Despite subrule (1), an application under the Substitute Decisions Act, 1992 may be commenced, continued and defended without the appointment of a litigation guardian for the respondent in respect of whom the application is made, unless the court orders otherwise. O. Reg. 69/95, s. 2.

Previously Appointed Committees

(3)  A committee named by order or statute before April 3, 1995 is the litigation guardian of the person in respect of whom the committee was named, and shall be referred to as the litigation guardian for all purposes. O. Reg. 377/95, s. 2.

(4)  Subrule (3) also applies to the Public Guardian and Trustee acting under an order made under subsection 72 (1) or (2) of the Mental Health Act as it read before April 3, 1995. O. Reg. 69/95, s. 2.

LITIGATION GUARDIAN FOR PLAINTIFF OR APPLICANT

Court Appointment Unnecessary

7.02  (1)  Any person who is not under disability may act, without being appointed by the court, as litigation guardian for a plaintiff or applicant who is under disability, subject to subrule (1.1). O. Reg. 69/95, s. 3 (1).

Mentally Incapable Person or Absentee

(1.1)  Unless the court orders otherwise, where a plaintiff or applicant,

(a) is mentally incapable and has a guardian with authority to act as litigation guardian in the proceeding, the guardian shall act as litigation guardian;

(b) is mentally incapable and does not have a guardian with authority to act as litigation guardian in the proceeding, but has an attorney under a power of attorney with that authority, the attorney shall act as litigation guardian;

(c) is an absentee and a committee of his or her estate has been appointed under the Absentees Act, the committee shall act as litigation guardian;

(d) is a person in respect of whom an order was made under subsection 72 (1) or (2) of the Mental Health Act as it read before April 3, 1995, the Public Guardian and Trustee shall act as litigation guardian. O. Reg. 69/95, s. 3 (1).

Affidavit to be Filed

(2)  No person except the Children’s Lawyer or the Public Guardian and Trustee shall act as litigation guardian for a plaintiff or applicant who is under disability until the person has filed an affidavit in which the person,

(a) consents to act as litigation guardian in the proceeding;

(b) confirms that he or she has given written authority to a named lawyer to act in the proceeding;

(c) provides evidence concerning the nature and extent of the disability;

(d) in the case of a minor, states the minor’s birth date;

(e) states whether he or she and the person under disability are ordinarily resident in Ontario;

(f) sets out his or her relationship, if any, to the person under disability;

(g) states that he or she has no interest in the proceeding adverse to that of the person under disability; and

(h) acknowledges that he or she has been informed of his or her liability to pay personally any costs awarded against him or her or against the person under disability. O. Reg. 14/04, s. 7.

(3)  Revoked: O. Reg. 14/04, s. 7.

LITIGATION GUARDIAN FOR DEFENDANT OR RESPONDENT

Generally must be Appointed by Court

7.03  (1)  No person shall act as a litigation guardian for a defendant or respondent who is under disability until appointed by the court, except as provided in subrule (2), (2.1) or (3). R.R.O. 1990, Reg. 194, r. 7.03 (1); O. Reg. 69/95, s. 4 (1).

Where Minor Interested in Estate or Trust

(2)  Where a proceeding is against a minor in respect of the minor’s interest in an estate or trust, the Children’s Lawyer shall act as the litigation guardian of the minor defendant or respondent, unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 7.03 (2); O. Reg. 69/95, s. 19.

Mentally Incapable Person or Absentee

(2.1)  Unless the court orders otherwise, where a proceeding is against,

(a) a mentally incapable person who has a guardian with authority to act as litigation guardian in the proceeding, the guardian shall act as litigation guardian;

(b) a mentally incapable person who does not have a guardian with authority to act as litigation guardian in the proceeding but has an attorney under a power of attorney with that authority, the attorney shall act as litigation guardian;

(c) an absentee, and a committee of his or her estate has been appointed under the Absentees Act, the committee shall act as litigation guardian;

(d) a person in respect of whom an order has been made under subsection 72 (1) or (2) of the Mental Health Act as it read before April 3, 1995, the Public Guardian and Trustee shall act as litigation guardian. O. Reg. 69/95, s. 4 (2).

Affidavit by Guardian or Attorney

(2.2)  A person who has authority under subrule (2.1) to act as litigation guardian shall, before acting in that capacity in a proceeding, file an affidavit containing the information referred to in subrule (10). O. Reg. 14/04, s. 8.

(2.3)  Revoked: O. Reg. 14/04, s. 8.

Defending Counterclaim

(3)  A litigation guardian for a plaintiff may defend a counterclaim without being appointed by the court. R.R.O. 1990, Reg. 194, r. 7.03 (3).

Motion by Person Seeking to be Litigation Guardian

(4)  A person who seeks to be the litigation guardian of a defendant or respondent under disability shall move to be appointed by the court before acting as litigation guardian. R.R.O. 1990, Reg. 194, r. 7.03 (4).

Motion by Plaintiff or Applicant to Appoint Litigation Guardian

(5)  Where a defendant or respondent under disability has been served with an originating process and no motion has been made under subrule (4) for the appointment of a litigation guardian, a plaintiff or applicant, before taking any further step in the proceeding, shall move for an order appointing a litigation guardian for the party under disability. R.R.O. 1990, Reg. 194, r. 7.03 (5).

(6)  At least ten days before moving for the appointment of a litigation guardian, a plaintiff or applicant shall serve a request for appointment of litigation guardian (Form 7A) on the party under disability personally or by an alternative to personal service under rule 16.03. R.R.O. 1990, Reg. 194, r. 7.03 (6).

(7)  The request may be served on the party under disability with the originating process. R.R.O. 1990, Reg. 194, r. 7.03 (7).

(8)  A motion for the appointment of a litigation guardian may be made without notice to the party under disability. R.R.O. 1990, Reg. 194, r. 7.03 (8).

(9)  A plaintiff or applicant who moves to appoint the Children’s Lawyer or the Public Guardian and Trustee as the litigation guardian shall serve the notice of motion and the material required by subrule (10) on the Children’s Lawyer or the Public Guardian and Trustee. R.R.O. 1990, Reg. 194, r. 7.03 (9); O. Reg. 69/95, ss. 19, 20.

Evidence on Motion to Appoint

(10)  A person who moves for the appointment of a litigation guardian shall provide evidence on the motion concerning,

(a) the nature of the proceeding;

(b) the date on which the cause of action arose and the date on which the proceeding was commenced;

(c) service on the party under disability of the originating process and the request for appointment of litigation guardian;

(d) the nature and extent of the disability;

(e) in the case of a minor, the minor’s birth date;

(f) whether the person under disability ordinarily resides in Ontario and,

except where the proposed litigation guardian is the Children’s Lawyer or the Public Guardian and Trustee, evidence,

(g) concerning the relationship, if any, of the proposed litigation guardian to the party under disability;

(h) whether the proposed litigation guardian ordinarily resides in Ontario;

(i) that the proposed litigation guardian,

(i) consents to act as litigation guardian in the proceeding,

(ii) is a proper person to be appointed,

(iii) has no interest in the proceeding adverse to that of the party under disability, and

(iv) acknowledges having been informed that he or she may incur costs that may not be recovered from another party. R.R.O. 1990, Reg. 194, r. 7.03 (10); O. Reg. 69/95, ss. 19, 20.

REPRESENTATION OF PERSONS UNDER DISABILITY

Litigation guardian for party

7.04  (1)  Unless there is some other proper person willing and able to act as litigation guardian for a party under disability, the court shall appoint,

(a) the Children’s Lawyer, if the party is a minor;

(b) the Public Guardian and Trustee, if the party is mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding and there is no guardian or attorney under a power of attorney with authority to act as litigation guardian;

(c) either of them, if clauses (a) and (b) both apply to the party. O. Reg. 69/95, s. 5.

Legal representative for minor who is not a party

(2)  Where, in the opinion of the court, the interests of a minor who is not a party require separate representation in a proceeding, the court may request and may by order authorize the Children’s Lawyer, or some other proper person who is willing and able to act, to act as the person’s legal representative. O. Reg. 69/95, s. 5.

Litigation guardian for incapable person who is not a party

(3)  Where, in the opinion of the court, the interests of a mentally incapable person who is not a minor and not a party require separate representation in a proceeding, the court may appoint as the mentally incapable person’s litigation guardian the Public Guardian and Trustee or some other proper person who is willing and able to act. O. Reg. 69/95, s. 5.

POWERS AND DUTIES OF LITIGATION GUARDIAN

7.05  (1)  Where a party is under disability, anything that a party in a proceeding is required or authorized to do may be done by the party’s litigation guardian. R.R.O. 1990, Reg. 194, r. 7.05 (1); O. Reg. 69/95, s. 18.

(2)  A litigation guardian shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests, including the commencement and conduct of a counterclaim, crossclaim or third party claim. R.R.O. 1990, Reg. 194, r. 7.05 (2); O. Reg. 69/95, s. 18.

(3)  A litigation guardian other than the Children’s Lawyer or the Public Guardian and Trustee shall be represented by a lawyer and shall instruct the lawyer in the conduct of the proceeding. R.R.O. 1990, Reg. 194, r. 7.05 (3); O. Reg. 69/95, ss. 18-20; O. Reg. 575/07, s. 1.

REMOVAL OR SUBSTITUTION OF LITIGATION GUARDIAN

7.06  (1)  Where, in the course of a proceeding,

(a) a minor for whom a litigation guardian has been acting reaches the age of majority, the minor or the litigation guardian may, on filing an affidavit stating that the minor has reached the age of majority, obtain from the registrar an order to continue (Form 7B) authorizing the minor to continue the proceeding without the litigation guardian;

(b) a party under any other disability for whom a litigation guardian has been acting ceases to be under disability, the party or the litigation guardian may move without notice for an order to continue the proceeding without the litigation guardian,

and the order shall be served forthwith on every other party and on the litigation guardian. R.R.O. 1990, Reg. 194, r. 7.06 (1); O. Reg. 69/95, s. 18.

(2)  Where it appears to the court that a litigation guardian is not acting in the best interests of the party under disability, the court may substitute the Children’s Lawyer, the Public Guardian and Trustee or any other person as litigation guardian. R.R.O. 1990, Reg. 194, r. 7.06 (2); O. Reg. 69/95, ss. 19, 20.

NOTING PARTY UNDER DISABILITY IN DEFAULT

7.07  (1)  If a party to an action is under a disability, the party may be noted in default under rule 19.01 only with leave of a judge. O. Reg. 19/03, s. 2.

(2)  Notice of a motion for leave under subrule (1) shall be served,

(a) on the litigation guardian of the party under disability; and

(b) on the Children’s Lawyer, unless,

(i) the Public Guardian and Trustee is the litigation guardian, or

(ii) a judge orders otherwise. R.R.O. 1990, Reg. 194, r. 7.07 (2); O. Reg. 69/95, ss. 18-20.

DISCONTINUANCE BY OR AGAINST PARTY UNDER DISABILITY

7.07.1  (1)  If a party to an action is under a disability, the action may be discontinued by or against the party under rule 23.01 only with leave of a judge. O. Reg. 19/03, s. 3.

(2)  Notice of a motion for leave under subrule (1) shall be served,

(a) on the litigation guardian of the party under disability; and

(b) on the Children’s Lawyer, unless,

(i) the Public Guardian and Trustee is the litigation guardian, or

(ii) a judge orders otherwise. O. Reg. 19/03, s. 3.

APPROVAL OF SETTLEMENT

Settlement Requires Judge’s Approval

7.08  (1)  No settlement of a claim made by or against a person under disability, whether or not a proceeding has been commenced in respect of the claim, is binding on the person without the approval of a judge. R.R.O. 1990, Reg. 194, r. 7.08 (1).

(2)  Judgment may not be obtained on consent in favour of or against a party under disability without the approval of a judge. R.R.O. 1990, Reg. 194, r. 7.08 (2).

Where no Proceeding Commenced

(3)  Where an agreement for the settlement of a claim made by or against a person under disability is reached before a proceeding is commenced in respect of the claim, approval of a judge shall be obtained on an application. R.R.O. 1990, Reg. 194, r. 7.08 (3).

Material Required for Approval

(4)  On a motion or application for the approval of a judge under this rule, there shall be served and filed with the notice of motion or notice of application,

(a) an affidavit of the litigation guardian setting out the material facts and the reasons supporting the proposed settlement and the position of the litigation guardian in respect of the settlement;

(b) an affidavit of the lawyer acting for the litigation guardian setting out the lawyer’s position in respect of the proposed settlement;

(c) where the person under disability is a minor who is over the age of sixteen years, the minor’s consent in writing, unless the judge orders otherwise; and

(d) a copy of the proposed minutes of settlement. R.R.O. 1990, Reg. 194, r. 7.08 (4); O. Reg. 69/95, s. 18; O. Reg. 575/07, s. 10.

Notice to Children’s Lawyer or Public Guardian and Trustee

(5)  On a motion or application for the approval of a judge under this rule, the judge may direct that the material referred to in subrule (4) be served on the Children’s Lawyer or on the Public Guardian and Trustee as the litigation guardian of the party under disability and may direct the Children’s Lawyer or the Public Guardian and Trustee, as the case may be, to make an oral or written report stating any objections he or she has to the proposed settlement and making recommendations, with reasons, in connection with the proposed settlement. R.R.O. 1990, Reg. 194, r. 7.08 (5); O. Reg. 69/95, ss. 18-20.

MONEY TO BE PAID INTO COURT

7.09  (1)  Any money payable to a person under disability under an order or a settlement shall be paid into court, unless a judge orders otherwise. R.R.O. 1990, Reg. 194, r. 7.09 (1).

(2)  Any money paid to the Children’s Lawyer on behalf of a person under disability shall be paid into court, unless a judge orders otherwise. R.R.O. 1990, Reg. 194, r. 7.09 (2); O. Reg. 69/95, s. 19.

RULE 8PARTNERSHIPS AND SOLE PROPRIETORSHIPS

PARTNERSHIPS

8.01  (1)  A proceeding by or against two or more persons as partners may be commenced using the firm name of the partnership. R.R.O. 1990, Reg. 194, r. 8.01 (1).

(2)  Subrule (1) extends to a proceeding between partnerships having one or more partners in common. O. Reg. 535/92, s. 4.

DEFENCE

8.02  Where a proceeding is commenced against a partnership using the firm name, the partnership’s defence shall be delivered in the firm name and no person who admits having been a partner at any material time may defend the proceeding separately, except with leave of the court. R.R.O. 1990, Reg. 194, r. 8.02.

NOTICE TO ALLEGED PARTNER WHERE ENFORCEMENT SOUGHT AGAINST PARTNER

8.03  (1)  In a proceeding against a partnership using the firm name, where a plaintiff or applicant seeks an order that will be enforceable personally against a person as a partner, the plaintiff or applicant may serve the person with the originating process, together with a notice to alleged partner (Form 8A) stating that the person was a partner at a material time specified in the notice. R.R.O. 1990, Reg. 194, r. 8.03 (1).

(2)  A person served as provided in subrule (1) shall be deemed to have been a partner at the material time, unless the person defends the proceeding separately denying that he or she was a partner at the material time. R.R.O. 1990, Reg. 194, r. 8.03 (2).

PERSON DEFENDING SEPARATELY

8.04  A person becomes a party to a proceeding as a defendant or respondent, and the title of the proceeding shall be amended accordingly, if the person defends a proceeding separately,

(a) denying having been a partner at the material time; or

(b) with leave of the court under rule 8.02. R.R.O. 1990, Reg. 194, r. 8.04.

DISCLOSURE OF PARTNERS

8.05  (1)  Where a proceeding is commenced by or against a partnership using the firm name, any other party may serve a notice requiring the partnership to disclose forthwith in writing the names and addresses of all the partners constituting the partnership at a time specified in the notice and, where the present address of a partner is unknown, the partnership shall disclose the last known address of that partner. R.R.O. 1990, Reg. 194, r. 8.05 (1).

(2)  Where a partnership fails to comply with a notice under subrule (1), its claim may be dismissed or the proceeding stayed or its defence may be struck out. R.R.O. 1990, Reg. 194, r. 8.05 (2).

(3)  Where the name of a partner is disclosed pursuant to a notice under subrule (1) and the partner has not been served as provided in rule 8.03, the partner may be so served within fifteen days after the name is disclosed. R.R.O. 1990, Reg. 194, r. 8.05 (3).

ENFORCEMENT OF ORDER

Against Partnership Property

8.06  (1)  An order against a partnership using the firm name may be enforced against the property of the partnership. R.R.O. 1990, Reg. 194, r. 8.06 (1).

Against Person Served as Alleged Partner

(2)  An order against a partnership using the firm name may also be enforced, where the order or a subsequent order so provides, against any person who was served as provided in rule 8.03 and who,

(a) under that rule, is deemed to have been a partner;

(b) has admitted having been a partner; or

(c) has been adjudged to have been a partner,

at the material time. R.R.O. 1990, Reg. 194, r. 8.06 (2).

Against Person not Served as Alleged Partner

(3)  Where, after an order has been made against a partnership using the firm name, the party obtaining it claims to be entitled to enforce it against any person alleged to be a partner other than a person who was served as provided in rule 8.03, the party may move before a judge for leave to do so, and the judge may grant leave if the liability of the person as a partner is not disputed or, if disputed, after the liability has been determined in such manner as the judge directs. R.R.O. 1990, Reg. 194, r. 8.06 (3).

SOLE PROPRIETORSHIPS

8.07  (1)  Where a person carries on business in a business name other than his or her own name, a proceeding may be commenced by or against the person using the business name. R.R.O. 1990, Reg. 194, r. 8.07 (1).

(2)  Rules 8.01 to 8.06 apply, with necessary modifications, to a proceeding by or against a sole proprietor using a business name, as though the sole proprietor were a partner and the business name were the firm name of a partnership. R.R.O. 1990, Reg. 194, r. 8.07 (2).

RULE 9ESTATES AND TRUSTS

PROCEEDINGS BY OR AGAINST EXECUTOR, ADMINISTRATOR OR TRUSTEE

General Rule

9.01  (1)  A proceeding may be brought by or against an executor, administrator or trustee as representing an estate or trust and its beneficiaries without joining the beneficiaries as parties. R.R.O. 1990, Reg. 194, r. 9.01 (1).

Exceptions

(2)  Subrule (1) does not apply to a proceeding,

(a) to establish or contest the validity of a will;

(b) for the interpretation of a will;

(c) to remove or replace an executor, administrator or trustee;

(d) against an executor, administrator or trustee for fraud or misconduct; or

(e) for the administration of an estate or the execution of a trust by the court. R.R.O. 1990, Reg. 194, r. 9.01 (2).

Executor, Administrator or Trustee Refusing to be Joined

(3)  Where a proceeding is commenced by executors, administrators or trustees, any executor, administrator or trustee who does not consent to be joined as a plaintiff or applicant shall be made a defendant or respondent. R.R.O. 1990, Reg. 194, r. 9.01 (3).

Beneficiaries and Others Added by Order

(4)  The court may order that any beneficiary, creditor or other interested person be made a party to a proceeding by or against an executor, administrator or trustee. R.R.O. 1990, Reg. 194, r. 9.01 (4).

PROCEEDING AGAINST ESTATE THAT HAS NO EXECUTOR OR ADMINISTRATOR

9.02  (1)  Where it is sought to commence or continue a proceeding against the estate of a deceased person who has no executor or administrator, the court on motion may appoint a litigation administrator to represent the estate for the purposes of the proceeding. R.R.O. 1990, Reg. 194, r. 9.02 (1).

(2)  An order in a proceeding to which a litigation administrator is a party binds or benefits the estate of the deceased person, but has no effect on the litigation administrator in a personal capacity, unless a judge orders otherwise. R.R.O. 1990, Reg. 194, r. 9.02 (2).

REMEDIAL PROVISIONS

Proceeding Commenced before Probate or Administration

9.03  (1)  Where a proceeding is commenced by or against a person as executor or administrator before a grant of probate or administration has been made and the person subsequently receives a grant of probate or administration, the proceeding shall be deemed to have been properly constituted from its commencement. R.R.O. 1990, Reg. 194, r. 9.03 (1).

Proceeding Brought by or against Estate

(2)  A proceeding commenced by or against the estate of a deceased person,

(a) by naming “the estate of A.B., deceased”, “the personal representative of A.B., deceased” or any similar designation; or

(b) in which the wrong person is named as the personal representative,

shall not be treated as a nullity, but the court may order that the proceeding be continued by or against the proper executor or administrator of the deceased or against a litigation administrator appointed for the purpose of the proceeding, and the title of the proceeding shall be amended accordingly. R.R.O. 1990, Reg. 194, r. 9.03 (2).

Proceeding Commenced in the Name of or Against a Deceased Person

(3)  A proceeding commenced in the name of or against a person who has died before its commencement shall not be treated as a nullity, but the court may order that the proceeding be continued by or against the executor or administrator or a litigation administrator appointed for the purpose of the proceeding and the title of the proceeding shall be amended accordingly. R.R.O. 1990, Reg. 194, r. 9.03 (3).

Where There is an Executor or Administrator and a Litigation Administrator has been Appointed

(4)  Where it appears that a deceased person for whom a litigation administrator has been appointed had an executor or administrator at the time of the appointment, the proceeding shall not be treated as a nullity, but the court may order that the proceeding be continued against the executor or administrator and the title of the proceeding shall be amended accordingly. R.R.O. 1990, Reg. 194, r. 9.03 (4).

General Power

(5)  A proceeding by or against a deceased person or an estate shall not be treated as a nullity because it was not properly constituted, but the court may order that the proceeding be reconstituted by analogy to the provisions of this rule. R.R.O. 1990, Reg. 194, r. 9.03 (5).

Stay of Proceeding until Properly Constituted

(6)  No further step in a proceeding referred to in subrule (2), (3), (4) or (5) shall be taken until it is properly constituted and, unless it is properly constituted within a reasonable time, the court may dismiss the proceeding or make such other order as is just. R.R.O. 1990, Reg. 194, r. 9.03 (6).

Terms May be Imposed

(7)  On making an order under this rule, the court may impose such terms as are just, including a term that an executor or an administrator shall not be personally liable in respect of any part of the estate of a deceased person that the executor or administrator has distributed or otherwise dealt with in good faith while not aware that a proceeding had been commenced against the deceased person or the estate. R.R.O. 1990, Reg. 194, r. 9.03 (7).

RULE 10REPRESENTATION ORDER

REPRESENTATION OF AN INTERESTED PERSON WHO CANNOT BE ASCERTAINED

Proceedings in which Order may be Made

10.01  (1)  In a proceeding concerning,

(a) the interpretation of a deed, will, contract or other instrument, or the interpretation of a statute, order in council, regulation or municipal by-law or resolution;

(b) the determination of a question arising in the administration of an estate or trust;

(c) the approval of a sale, purchase, settlement or other transaction;

(d) the approval of an arrangement under the Variation of Trusts Act;

(e) the administration of the estate of a deceased person; or

(f) any other matter where it appears necessary or desirable to make an order under this subrule,

a judge may by order appoint one or more persons to represent any person or class of persons who are unborn or unascertained or who have a present, future, contingent or unascertained interest in or may be affected by the proceeding and who cannot be readily ascertained, found or served. R.R.O. 1990, Reg. 194, r. 10.01 (1).

Order Binds Represented Persons

(2)  Where an appointment is made under subrule (1), an order in the proceeding is binding on a person or class so represented, subject to rule 10.03. R.R.O. 1990, Reg. 194, r. 10.01 (2).

Settlement Affecting Persons who are not Parties

(3)  Where in a proceeding referred to in subrule (1) a settlement is proposed and some of the persons interested in the settlement are not parties to the proceeding, but,

(a) those persons are represented by a person appointed under subrule (1) who assents to the settlement; or

(b) there are other persons having the same interest who are parties to the proceeding and assent to the settlement,

the judge, if satisfied that the settlement will be for the benefit of the interested persons who are not parties and that to require service on them would cause undue expense or delay, may approve the settlement on behalf of those persons. R.R.O. 1990, Reg. 194, r. 10.01 (3).

(4)  A settlement approved under subrule (3) binds the interested persons who are not parties, subject to rule 10.03. R.R.O. 1990, Reg. 194, r. 10.01 (4).

REPRESENTATION OF A DECEASED PERSON

10.02  Where it appears to a judge that the estate of a deceased person has an interest in a matter in question in the proceeding and there is no executor or administrator of the estate, the judge may order that the proceeding continue in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent the estate for the purposes of the proceeding, and an order in the proceeding binds the estate of the deceased person, subject to rule 10.03, as if the executor or administrator of the estate of that person had been a party to the proceeding. R.R.O. 1990, Reg. 194, r. 10.02.

RELIEF FROM BINDING EFFECT OF ORDER

10.03  Where a person or an estate is bound by reason of a representation order made under subrule 10.01 (1) or rule 10.02, an approval under subrule 10.01 (3) or an order that the proceeding continue made under rule 10.02, a judge may order in the same or a subsequent proceeding that the person or estate not be bound where the judge is satisfied that,

(a) the order or approval was obtained by fraud or non-disclosure of material facts;

(b) the interests of the person or estate were different from those represented at the hearing; or

(c) for some other sufficient reason the order or approval should be set aside. R.R.O. 1990, Reg. 194, r. 10.03.

RULE 11TRANSFER OR TRANSMISSION OF INTEREST

EFFECT OF TRANSFER OR TRANSMISSION

11.01  Where at any stage of a proceeding the interest or liability of a party is transferred or transmitted to another person by assignment, bankruptcy, death or other means, the proceeding shall be stayed with respect to the party whose interest or liability has been transferred or transmitted until an order to continue the proceeding by or against the other person has been obtained. R.R.O. 1990, Reg. 194, r. 11.01; O. Reg. 14/04, s. 9.

ORDER TO CONTINUE

11.02  (1)  Where a transfer or transmission of the interest or liability of a party takes place while a proceeding is pending, any interested person may, on filing an affidavit verifying the transfer or transmission of interest or liability, obtain on requisition from the registrar an order to continue (Form 11A), without notice to any other party. R.R.O. 1990, Reg. 194, r. 11.02 (1).

(2)  An order to continue shall be served forthwith on every other party. R.R.O. 1990, Reg. 194, r. 11.02 (2).

FAILURE TO OBTAIN ORDER TO CONTINUE ACTION

11.03  Where a transfer or transmission of the interest of a plaintiff takes place while an action is pending and no order to continue is obtained within a reasonable time, a defendant may move to have the action dismissed for delay, and rules 24.02 to 24.05 apply, with necessary modifications. R.R.O. 1990, Reg. 194, r. 11.03.

RULE 12CLASS PROCEEDINGS AND OTHER REPRESENTATIVE PROCEEDINGS

DEFINITIONS

12.01  In rules 12.02 to 12.06,

“Act” means the Class Proceedings Act, 1992; (“Loi”)

“Foundation” means The Law Foundation of Ontario; (“Fondation”)

“Fund” means the Class Proceedings Fund of the Foundation. (“Fonds”) O. Reg. 770/92, s. 5; O. Reg. 465/93, s. 2 (2).

TITLE OF PROCEEDING

12.02  (1)  In a proceeding commenced under subsection 2 (1) of the Act, the title of the proceeding shall include, after the names of the parties, “Proceeding under the Class Proceedings Act, 1992”. O. Reg. 770/92, s. 5.

(2)  In a proceeding referred to in section 3 or 4 of the Act, the notice of motion for an order certifying the proceeding, the order certifying it and all subsequent documents shall include, after the names of the parties, “Proceeding under the Class Proceedings Act, 1992”. O. Reg. 770/92, s. 5.

DISCOVERY OF CLASS MEMBERS

12.03  (1)  For the purpose of subrule 31.11 (1) (reading in examination), a class member who is examined for discovery under subsection 15 (2) of the Act is examined in addition to the party. O. Reg. 770/92, s. 5.

(2)  Rule 31.10 (discovery of non-parties) and clause 34.15 (1) (b) (sanctions for default or misconduct) do not apply when a class member is examined for discovery under subsection 15 (2) of the Act. O. Reg. 770/92, s. 5.

COSTS

Application of Rule

12.04  (1)  This rule applies to class proceedings in which the plaintiff or applicant has received financial support from the Fund. O. Reg. 770/92, s. 5.

Notice to Foundation, Opportunity to Participate

(2)  If the court is of the opinion that the defendant or respondent may be entitled to an award of costs, the court shall direct the plaintiff or applicant to give notice to the Foundation. O. Reg. 113/01, s. 1.

(3)  When the court has made a direction under subsection (2),

(a) no order for costs or assessment of costs shall be made unless the Foundation has had an opportunity to present evidence and make submissions in respect of costs; and

(b) the Foundation is a party for the purpose of an appeal in relation to costs. O. Reg. 113/01, s. 1.

Failure to Accept Defendant’s Offer

(4)  Subrule 49.10 (2) (costs consequences of offer) does not apply. O. Reg. 113/01, s. 1.

CONTENTS OF JUDGMENTS AND ORDERS

12.05  (1)  A judgment in a class proceeding or an order approving a settlement, discontinuance or abandonment of a class proceeding under section 29 of the Act shall contain directions with respect to,

(a) the distribution of amounts awarded under section 24 or 25 of the Act, and the costs of distribution;

(b) the payment of amounts owing under an enforceable agreement made under section 32 of the Act between a lawyer and a representative party;

(c) the payment of the costs of the proceeding; and

(d) the payment of any levy in favour of the Fund under clause 59.5 (1) (g) of the Law Society Act. O. Reg. 770/92, s. 5; O. Reg. 575/07, s. 1.

(2)  An order certifying two or more proceedings as a class proceeding under section 3 of the Act or decertifying a class proceeding under section 10 of the Act shall contain directions with respect to pleadings and other procedural matters. O. Reg. 770/92, s. 5.

LEAVE TO APPEAL

Leave to be Obtained from Another Judge

12.06  (1)  Leave to appeal to the Divisional Court under subsection 30 (2), (9), (10) or (11) of the Act shall be obtained from a judge other than the judge who made the order. O. Reg. 465/93, s. 2 (3).

Certification Order — Grounds

(2)  Leave to appeal from an order under subsection 30 (2) of the Act shall be granted only on the grounds provided in subrule 62.02 (4). O. Reg. 465/93, s. 2 (3).

Order Awarding $3,000 or less or Dismissing Claim — Grounds

(3)  Leave to appeal from an order under subsection 30 (9), (10) or (11) of the Act shall not be granted unless,

(a) there has been a miscarriage of justice; or

(b) the order may be used as a precedent in determining the rights of other class members or the defendant in the proceeding under section 24 or 25 of the Act and there is good reason to doubt the correctness of the order. O. Reg. 465/93, s. 2 (3).

Procedure

(4)  Subrules 62.02 (2), (3), (5), (6), (7) and (8) (procedure on motion for leave to appeal) apply to the motion for leave to appeal. O. Reg. 465/93, s. 2 (3).

PROCEEDING AGAINST REPRESENTATIVE DEFENDANT

12.07  Where numerous persons have the same interest, one or more of them may defend a proceeding on behalf or for the benefit of all, or may be authorized by the court to do so. O. Reg. 465/93, s. 2 (3).

PROCEEDING BY UNINCORPORATED ASSOCIATION OR TRADE UNION

12.08  Where numerous persons are members of an unincorporated association or trade union and a proceeding under the Class Proceedings Act, 1992 would be an unduly expensive or inconvenient means for determining their claims, one or more of them may be authorized by the court to bring a proceeding on behalf of or for the benefit of all. O. Reg. 288/99, s. 9.

RULE 13INTERVENTION

LEAVE TO INTERVENE AS ADDED PARTY

13.01  (1)  A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

(a) an interest in the subject matter of the proceeding;

(b) that the person may be adversely affected by a judgment in the proceeding; or

(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding. R.R.O. 1990, Reg. 194, r. 13.01 (1).

(2)  On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just. R.R.O. 1990, Reg. 194, r. 13.01 (2).

LEAVE TO INTERVENE AS FRIEND OF THE COURT

13.02  Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument. R.R.O. 1990, Reg. 194, r. 13.02.

LEAVE TO INTERVENE IN DIVISIONAL COURT OR COURT OF APPEAL

13.03  (1)  Leave to intervene in the Divisional Court as an added party or as a friend of the court may be granted by a panel of the court, the Chief Justice or Associate Chief Justice of the Superior Court of Justice or a judge designated by either of them. R.R.O. 1990, Reg. 194, r. 13.03 (1); O. Reg. 292/99, s. 4.

(2)  Leave to intervene as an added party or as a friend of the court in the Court of Appeal may be granted by a panel of the court, the Chief Justice of Ontario or the Associate Chief Justice of Ontario. R.R.O. 1990, Reg. 194, r. 13.03 (2).

COMMENCEMENT OF PROCEEDINGS

RULE 13.1 PLACE OF COMMENCEMENT AND HEARING OR TRIAL

PLACE OF COMMENCEMENT

Statute or Rule Governing Place of Commencement, Trial or Hearing

13.1.01  (1)  If a statute or rule requires a proceeding to be commenced, brought, tried or heard in a particular county, the proceeding shall be commenced at a court office in that county and the county shall be named in the originating process. O. Reg. 14/04, s. 10.

Choice of Place

(2)  If subrule (1) does not apply, the proceeding may be commenced at any court office in any county named in the originating process. O. Reg. 14/04, s. 10.

TRANSFER

Motion to Transfer to Another County

13.1.02  (1)  If subrule 13.1.01 (1) applies to a proceeding but a plaintiff or applicant commences it in another place, the court may, on its own initiative or on any party’s motion, order that the proceeding be transferred to the county where it should have been commenced. O. Reg. 14/04, s. 10.

(2)  If subrule (1) does not apply, the court may, on any party’s motion, make an order to transfer the proceeding to a county other than the one where it was commenced, if the court is satisfied,

(a) that it is likely that a fair hearing cannot be held in the county where the proceeding was commenced; or

(b) that a transfer is desirable in the interest of justice, having regard to,

(i) where a substantial part of the events or omissions that gave rise to the claim occurred,

(ii) where a substantial part of the damages were sustained,

(iii) where the subject-matter of the proceeding is or was located,

(iv) any local community’s interest in the subject-matter of the proceeding,

(v) the convenience of the parties, the witnesses and the court,

(vi) whether there are counterclaims, crossclaims, or third or subsequent party claims,

(vii) any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits,

(viii) whether judges and court facilities are available at the other county, and

(ix) any other relevant matter. O. Reg. 14/04, s. 10.

(3)  If an order has previously been made under subrule (2), any party may make a further motion, and in that case subrule (2) applies with necessary modifications. O. Reg. 14/04, s. 10.

Note: On January 1, 2010, rule 13.1.02 is amended by adding the following subrule:

(3.1)  Despite subrules 37.03 (1) and 76.05 (2) (place of hearing motions), a motion under subrule (1), (2) or (3) may be brought and heard in the county to which the transfer of the proceeding is sought. O. Reg. 438/08, s. 10.

See: O. Reg. 438/08, ss. 10, 68 (1).

Transfer on Initiative of Regional Senior Judge

(4)  If subrule (1) does not apply, the regional senior judge in whose region the proceeding was commenced may, on his or her own initiative and subject to subrules (5) and (6), make an order to transfer the proceeding to another county in the same region. O. Reg. 14/04, s. 10.

(5)  Before making an order under subrule (4), the regional senior judge shall direct the parties to appear before him or her, by personal attendance or under rule 1.08 (telephone and video conference), to consider whether the order should be made. O. Reg. 14/04, s. 10.

(6)  An order under subrule (4) may be made only if the regional senior judge is satisfied that the transfer is desirable in the interest of justice, having regard to the factors listed in subclauses (2) (b) (i) to (ix). O. Reg. 14/04, s. 10.

(7)  If an order has previously been made under subrule (4), a further order may be made, and in that case subrule (4) applies with necessary modifications. O. Reg. 14/04, s. 10.

Effect of Order

(8)  If an order is made under subrule (1), (2) or (4),

(a) the court file shall be transferred to the court office in the county to which the proceeding has been transferred; and

(b) all further documents required to be filed in the proceeding shall be filed there. O. Reg. 14/04, s. 10.

(9)-(11)  Revoked: R.R.O. 1990, Reg. 194, s. 13.1.02 (12).

(12)  Spent: O. Reg. 14/04, s. 10.

RULE 14ORIGINATING PROCESS

HOW PROCEEDINGS COMMENCED

By Issuing Originating Process

14.01  (1)  A proceeding shall be commenced by the issuing of an originating process. O. Reg. 14/04, s. 11.

Exceptions

(2)  A counterclaim that is only against persons who are already parties to the main action, and a crossclaim, shall be commenced by the delivery of the pleading containing the counterclaim or crossclaim, and the pleading need not be issued. O. Reg. 131/04, s. 4.

(2.1)  An application for a certificate of appointment of estate trustee under Rule 74 need not be issued. O. Reg. 484/94, s. 4 (2).

Where Leave Required

(3)  Where leave to commence a proceeding is required, it shall be obtained by motion. R.R.O. 1990, Reg. 194, r. 14.01 (3).

(4)  A party may rely on a fact that occurs after the commencement of a proceeding, even though the fact gives rise to a new claim or defence, and, if necessary, may move to amend an originating process or pleading to allege the fact. R.R.O. 1990, Reg. 194, r. 14.01 (4).

14.01.1  Revoked: O. Reg. 457/01, s. 2.

PROCEEDINGS BY ACTION AS GENERAL RULE

14.02  Every proceeding in the court shall be by action, except where a statute or these rules provide otherwise. R.R.O. 1990, Reg. 194, r. 14.02.

ACTIONS — BY STATEMENT OF CLAIM OR NOTICE OF ACTION

Statement of Claim

14.03  (1)  The originating process for the commencement of an action is a statement of claim (Form 14A (general) or 14B (mortgage actions)), except as provided by,

(a) subrule (2) (notice of action);

(b) Revoked: O. Reg. 131/04, s. 5 (1).

(c) rule 27.03 (counterclaim against person not already a party);

(d) subrule 29.02 (1) (third party claim); and

(e) rule 29.11 (fourth and subsequent party claims). R.R.O. 1990, Reg. 194, r. 14.03 (1); O. Reg. 131/04, s. 5 (1).

Notice of Action

(2)  Where there is insufficient time to prepare a statement of claim, an action may be commenced by the issuing of a notice of action (Form 14C) that contains a short statement of the nature of the claim. R.R.O. 1990, Reg. 194, r. 14.03 (2); O. Reg. 131/04, s. 5 (2).

(3)  Where a notice of action is used, the plaintiff shall file a statement of claim (Form 14D) within thirty days after the notice of action is issued, and no statement of claim shall be filed thereafter except with the written consent of the defendant or with leave of the court obtained on notice to the defendant. R.R.O. 1990, Reg. 194, r. 14.03 (3).

(4)  The notice of action shall not be served separately from the statement of claim. R.R.O. 1990, Reg. 194, r. 14.03 (4).

Information for Court Use

(4.1)  Form 14F (Information for court use) shall be filed together with Form 14A, 14B or 14C, as the case may be. O. Reg. 206/02, s. 2; O. Reg. 263/03, s. 2.

Statement of Claim may Alter or Extend Claim

(5)  In an action commenced by the issuing of a notice of action, the statement of claim may alter or extend the claim stated in the notice of action. R.R.O. 1990, Reg. 194, r. 14.03 (5).

ORDINARY AND SIMPLIFIED PROCEDURE

14.03.1  The simplified procedure set out in Rule 76 shall be used in actions to which subrule 76.02 (1), (2) or (2.1) applies, and may be used in other actions in accordance with subrule 76.02 (3); otherwise, the ordinary procedure set out in these Rules shall be used in all proceedings. O. Reg. 652/00, s. 1; O. Reg. 284/01, s. 4; O. Reg. 132/04, s. 3.

14.04  Revoked: O. Reg. 131/04, s. 6.

APPLICATIONS — BY NOTICE OF APPLICATION

Notice of Application

14.05  (1)  The originating process for the commencement of an application is a notice of application (Form 14E, 68A or 73A) or an application for a certificate of appointment of an estate trustee (Form 74.4, 74.5, 74.14, 74.15, 74.21, 74.24, 74.27 or 74.30). R.R.O. 1990, Reg. 194, r. 14.05 (1); O. Reg. 484/94, s. 5.

Information for Court Use

(1.1)  Form 14F (Information for court use) shall be filed together with a notice of application in Form 14E, 68A or 73A. O. Reg. 260/05, s. 2.

Application under Statute

(2)  A proceeding may be commenced by an application to the Superior Court of Justice or to a judge of that court, if a statute so authorizes. R.R.O. 1990, Reg. 194, r. 14.05 (2); O. Reg. 292/99, s. 1 (2).

Application under Rules

(3)  A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,

(a) the opinion, advice or direction of the court on a question affecting the rights of a person in respect of the administration of the estate of a deceased person or the execution of a trust;

(b) an order directing executors, administrators or trustees to do or abstain from doing any particular act in respect of an estate or trust for which they are responsible;

(c) the removal or replacement of one or more executors, administrators or trustees, or the fixing of their compensation;

(d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution;

(e) the declaration of an interest in or charge on land, including the nature and extent of the interest or charge or the boundaries of the land, or the settling of the priority of interests or charges;

(f) the approval of an arrangement or compromise or the approval of a purchase, sale, mortgage, lease or variation of trust;

(g) an injunction, mandatory order or declaration or the appointment of a receiver or other consequential relief when ancillary to relief claimed in a proceeding properly commenced by a notice of application;

(g.1) for a remedy under the Canadian Charter of Rights and Freedoms; or

(h) in respect of any matter where it is unlikely that there will be any material facts in dispute. R.R.O. 1990, Reg. 194, r. 14.05 (3); O. Reg. 396/91, s. 3.

TITLE OF PROCEEDING

14.06  (1)  Every originating process shall contain a title of the proceeding setting out the names of all the parties and the capacity in which they are made parties, if other than their personal capacity. R.R.O. 1990, Reg. 194, r. 14.06 (1).

(2)  In an action, the title of the proceeding shall name the party commencing the action as the plaintiff and the opposite party as the defendant. R.R.O. 1990, Reg. 194, r. 14.06 (2); O. Reg. 131/04. s. 7.

(3)  In an application, the title of the proceeding shall name the party commencing the application as the applicant and the opposite party, if any, as the respondent and the notice of application shall state the statutory provision or rule, if any, under which the application is made. R.R.O. 1990, Reg. 194, r. 14.06 (3).

Exception

(4)  Subrules (1), (2) and (3) do not apply to proceedings under Rules 74 and 75. O. Reg. 484/94, s. 6.

HOW ORIGINATING PROCESS ISSUED

14.07  (1)  An originating process is issued by the registrar’s act of dating, signing and sealing it with the seal of the court and assigning to it a court file number. R.R.O. 1990, Reg. 194, r. 14.07 (1).

(2)  A copy of the originating process shall be filed in the court file when it is issued. R.R.O. 1990, Reg. 194, r. 14.07 (2).

(3)  Revoked: O. Reg. 14/04, s. 12.

TIME FOR SERVICE IN ACTIONS

14.08  (1)  Where an action is commenced by a statement of claim, the statement of claim shall be served within six months after it is issued. R.R.O. 1990, Reg. 194, r. 14.08 (1).

(2)  Where an action is commenced by a notice of action, the notice of action and the statement of claim shall be served together within six months after the notice of action is issued. R.R.O. 1990, Reg. 194, r. 14.08 (2).

Dismissal by Registrar

(3)  Subrules (1) and (2) are subject to rules 76.06 and 77.08, which provide that in certain circumstances the registrar shall make an order dismissing the action as abandoned. O. Reg. 284/01, s. 5.

Note: On January 1, 2010, subrule (3) is amended by striking out “rules 76.06 and 77.08, which provide” and substituting “rule 48.15, which provides”. See: O. Reg. 438/08, ss. 11 (1), 68 (1).

(4)  Subrules (1) and (2) are subject to rule 78.06, which provides that in certain circumstances the registrar shall make an order dismissing the action as abandoned. O. Reg. 198/05, s. 1.

Revocation

(5)  Subrule (4) is revoked on January 1, 2010. O. Reg. 198/05, s. 1; O. Reg. 55/08, s. 1; O. Reg. 438/08, s. 11 (2).

STRIKING OUT OR AMENDING

14.09  An originating process that is not a pleading may be struck out or amended in the same manner as a pleading. R.R.O. 1990, Reg. 194, r. 14.09.

DISMISSAL OF ACTION WHERE DEFENDANT PAYS CLAIM

14.10  (1)  Where the plaintiff’s claim is for money only, a defendant, on paying within the time prescribed for delivery of a defence or at any time before being noted in default, the amount of the plaintiff’s claim and the amount claimed for costs, may on motion have the court dismiss the action. R.R.O. 1990, Reg. 194, r. 14.10 (1).

(2)  A defendant who considers the amount claimed for costs to be excessive may pay, within the time prescribed for delivery of a defence or at any time before being noted in default, the amount of the plaintiff’s claim and the sum of $400 for costs, and the court on motion may dismiss the action and may fix and order payment of the plaintiff’s costs or may order payment of the plaintiff’s costs as assessed under Rule 58. R.R.O. 1990, Reg. 194, r. 14.10 (2); O. Reg. 653/00, s. 2.

RULE 15REPRESENTATION BY LAWYER

WHERE LAWYER IS REQUIRED

15.01  (1)  A party to a proceeding who is under disability or acts in a representative capacity shall be represented by a lawyer. R.R.O. 1990, Reg. 194, r. 15.01 (1); O. Reg. 575/07, s. 1.

(2)  A party to a proceeding that is a corporation shall be represented by a lawyer, except with leave of the court. R.R.O. 1990, Reg. 194, r. 15.01 (2); O. Reg. 575/07, s. 1.

(3)  Any other party to a proceeding may act in person or be represented by a lawyer. R.R.O. 1990, Reg. 194, r. 15.01 (3); O. Reg. 575/07, s. 1.

NOTICE OF AUTHORITY TO COMMENCE PROCEEDING

Request for Notice by Lawyer

15.02  (1)  A person who is served with an originating process may deliver a request that the lawyer who is named in the originating process as the lawyer for the plaintiff or applicant deliver a notice declaring whether he or she commenced or authorized the commencement of the proceeding or whether his or her client authorized the commencement of the proceeding. O. Reg. 427/01, s. 9; O. Reg. 575/07, s. 1.

Power of Court

(2)  If the lawyer fails to deliver a notice in accordance with the request, the court may,

(a) order the lawyer to do so;

(b) stay the proceeding; and

(c) order the lawyer to pay the costs of the proceeding. O. Reg. 427/01, s. 9; O. Reg. 575/07, s. 1.

Proceeding Commenced without Lawyer’s Authority

(3)  If the lawyer declares that he or she did not commence or authorize the commencement of the proceeding, the court may, on motion without notice, stay or dismiss the proceeding. O. Reg. 427/01, s. 9; O. Reg. 575/07, s. 1.

Proceeding Commenced without Client’s Authority

(4)  If a lawyer has commenced a proceeding without the authority of his or her client, the court may, on motion, stay or dismiss the proceeding and order the lawyer to pay the costs of the proceeding. O. Reg. 427/01, s. 9; O. Reg. 575/07, s. 1.

Effect of Stay

(5)  If a proceeding is stayed under this rule, no further step may be taken without leave of the court. O. Reg. 427/01, s. 9.

CHANGE IN REPRESENTATION BY PARTY

Notice of Change of Lawyer

15.03  (1)  A party who has a lawyer of record may change the lawyer of record by serving on the lawyer and every other party and filing, with proof of service, a notice of change of lawyer (Form 15A) giving the name, address and telephone number of the new lawyer. O. Reg. 575/07, s. 12.

Notice of Appointment of Lawyer

(2)  A party acting in person may appoint a lawyer of record by serving on every other party and filing, with proof of service, a notice of appointment of lawyer (Form 15B) giving the name, address and telephone number of the lawyer of record. O. Reg. 575/07, s. 12.

Notice of Intention to Act in Person

(3)  Subject to subrule 15.01 (1) or (2), a party who has a lawyer of record may elect to act in person by serving on the lawyer and every other party and filing, with proof of service, a notice of intention to act in person (Form 15C) that sets out the party’s address for service and telephone number. O. Reg. 575/07, s. 12.

Claim for Lawyer’s Lien

(4)  A party may move, on notice to the party’s former lawyer of record, for an order determining whether and to what extent the lawyer has a right to a lawyer’s lien. O. Reg. 575/07, s. 12.

(5)  In the order, the court may impose such terms as are just in connection with the lien and its discharge. O. Reg. 377/95, s. 3.

MOTION BY LAWYER FOR REMOVAL AS LAWYER OF RECORD

Client to be Served

15.04  (1)  A lawyer may move, on notice to his or her client, for an order removing him or her as lawyer of record. O. Reg. 575/07, s. 13 (1).

(2)  Service of a notice of motion for the removal of a lawyer from the record and service of the order shall be made on the client,

(a) personally or by an alternative to personal service under rule 16.03; or

(b) by mailing a copy to the client at,

(i) the client’s last known address, and

(ii) another address, if any, where the lawyer believes the copy is likely to come to the client’s attention. O. Reg. 42/05, s. 2 (1); O. Reg. 575/07, s. 1.

Party under Disability

(3)  Where the party for whom the lawyer is acting is under disability, the notice of motion and the order shall also be served on the litigation guardian and,

(a) where the party is a minor, on the Children’s Lawyer; and

(b) in any other case, on the Public Guardian and Trustee. R.R.O. 1990, Reg. 194, r. 15.04 (3); O. Reg. 69/95, ss. 18-20; O. Reg. 575/07, s. 1.

Contents of Order

(4)  The order removing a lawyer from the record shall include,

(a) the client’s last known address, or the address for service if different;

(b) another address, if any, where the lawyer believes the copy is likely to come to the client’s attention;

(c) the client’s telephone number and fax number, if any, unless the court orders otherwise;

(d) if the client is a corporation, the text of subrules (6) and (7); and

(e) if the client is not a corporation, the text of subrules (8) and (9). O. Reg. 42/05, s. 2 (2); O. Reg. 575/07, s. 1.

Proof of Service of Order to be Filed

(5)  Proof of service of the order shall be filed forthwith after it is served. R.R.O. 1990, Reg. 194, r. 15.04 (5).

Corporations

(6)  A client that is a corporation shall, within 30 days after being served with the order removing the lawyer from the record,

(a) appoint a new lawyer of record by serving a notice under subrule 15.03 (2); or

(b) obtain and serve an order under subrule 15.01 (2) granting it leave to be represented by a person other than a lawyer. O. Reg. 575/07, s. 13 (2).

(7)  If the corporation fails to comply with subrule (6),

(a) the court may dismiss its proceeding or strike out its defence; and

(b) in an appeal,

(i) a judge of the appellate court may, on motion, dismiss the corporation’s appeal, or

(ii) the court hearing the appeal may deny it the right to be heard. O. Reg. 171/98, s. 1.

Clients Other Than Corporations

(8)  A client who is not a corporation shall, within 30 days after being served with the order removing the lawyer from the record,

(a) appoint a new lawyer of record by serving a notice under subrule 15.03 (2); or

(b) serve a notice of intention to act in person under subrule 15.03 (3). O. Reg. 575/07, s. 13 (3).

(9)  If the client fails to comply with subrule (8),

(a) the court may dismiss the client’s proceeding or strike out his or her defence; and

(b) in an appeal,

(i) a judge of the appellate court may, on motion, dismiss the client’s appeal, or

(ii) the court hearing the appeal may deny the client the right to be heard. O. Reg. 42/05, s. 2 (3).

DUTY OF LAWYER OF RECORD

15.05  A lawyer of record shall act as and remains the lawyer of record for his or her client until,

(a) the client delivers a notice under rule 15.03; or

(b) an order removing the lawyer from the record has been entered, served on the client and every other party and, where required by subrule 15.04 (3), in accordance with that subrule, and filed with proof of service. O. Reg. 575/07, s. 14.

WHERE A LAWYER OF RECORD HAS CEASED TO PRACTISE

15.06  Where the lawyer of record for a party has ceased to practise law, and the party for whom the lawyer acted has not served a notice under rule 15.03, any other party may serve a document on the party by mailing a copy to the party at the party’s last known address, or may move for directions. O. Reg. 575/07, s. 14.

LAWYER FROM ANOTHER PROVINCE

15.07  If a lawyer from another province represents a party to a proceeding, any party to the proceeding may move for directions for the conduct of the proceeding. O. Reg. 575/07, s. 14.

SERVICE

RULE 16SERVICE OF DOCUMENTS

GENERAL RULES FOR MANNER OF SERVICE

Originating Process

16.01  (1)  An originating process shall be served personally as provided in rule 16.02 or by an alternative to personal service as provided in rule 16.03. R.R.O. 1990, Reg. 194, r. 16.01 (1); O. Reg. 131/04, s. 8.

(2)  A party who has not been served with the originating process but delivers a defence, notice of intent to defend or notice of appearance shall be deemed to have been served with the originating process as of the date of delivery. O. Reg. 113/01, s. 2.

All Other Documents

(3)  No other document need be served personally, or by an alternative to personal service, unless these rules or an order require personal service or an alternative to personal service. R.R.O. 1990, Reg. 194, r. 16.01 (3).

(4)  Any document that is not required to be served personally or by an alternative to personal service,

(a) shall be served on a party who has a lawyer of record by serving the lawyer, and service may be made in a manner provided in rule 16.05;

(b) may be served on a party acting in person or on a person who is not a party,

(i) by mailing a copy of the document to the last address for service provided by the party or other person or, if no such address has been provided, to the party’s or person’s last known address, or

(ii) by personal service or by an alternative to personal service. R.R.O. 1990, Reg. 194, r. 16.01 (4); O. Reg. 260/05, s. 3; O. Reg. 575/07, s. 15.

PERSONAL SERVICE

16.02  (1)  Where a document is to be served personally, the service shall be made,

Individual

(a) on an individual, other than a person under disability, by leaving a copy of the document with the individual;

Municipality

(b) on a municipal corporation, by leaving a copy of the document with the chair, mayor, warden or reeve of the municipality, with the clerk or deputy clerk of the municipality or with a lawyer for the municipality;

Corporation

(c) on any other corporation, by leaving a copy of the document with an officer, director or agent of the corporation, or with a person at any place of business of the corporation who appears to be in control or management of the place of business;

Board or Commission

(d) on a board or commission, by leaving a copy of the document with a member or officer of the board or commission;

Person outside Ontario Carrying on Business in Ontario

(e) on a person outside Ontario who carries on business in Ontario, by leaving a copy of the document with anyone carrying on business in Ontario for the person;

Crown in Right of Canada

(f) on Her Majesty the Queen in right of Canada, in accordance with subsection 23 (2) of the Crown Liability and Proceedings Act (Canada);

Crown in Right of Ontario

(g) on Her Majesty the Queen in right of Ontario, in accordance with section 10 of the Proceedings Against the Crown Act;

Attorney General

(h) on the Attorney General of Ontario, by leaving a copy of the document with a lawyer in the Crown Law Office (Civil Law) of the Ministry of the Attorney General;

Absentee

(i) on an absentee, by leaving a copy of the document with the absentee’s litigation guardian, if there is one or, if not, with the Public Guardian and Trustee;

Minor

(j) on a minor, by leaving a copy of the document with the litigation guardian if one has been appointed or, if not, with the minor and, where the minor resides with a parent or other person having the care or lawful custody of the minor, by leaving another copy of the document with the parent or other person, but, where the proceeding is in respect of the minor’s interest in an estate or trust, the minor shall be served by leaving with the Children’s Lawyer a copy of the document bearing the name and address of the minor;

Mentally Incapable Person

(k) on a mentally incapable person,

(i) if there is a guardian or an attorney acting under a validated power of attorney for personal care with authority to act in the proceeding, by leaving a copy of the document with the guardian or attorney,

(ii) if there is no guardian or attorney acting under a validated power of attorney for personal care with authority to act in the proceeding but there is an attorney under a power of attorney with authority to act in the proceeding, by leaving a copy of the document with the attorney and leaving an additional copy with the person,

(iii) if there is neither a guardian nor an attorney with authority to act in the proceeding, by leaving a copy of the document bearing the person’s name and address with the Public Guardian and Trustee and leaving an additional copy with the person;

(l) Revoked: O. Reg. 69/95, s. 6 (2).

Partnership

(m) on a partnership, by leaving a copy of the document with any one or more of the partners or with a person at the principal place of business of the partnership who appears to be in control or management of the place of business; and

Sole Proprietorship

(n) on a sole proprietorship, by leaving a copy of the document with the sole proprietor or with a person at the principal place of business of the sole proprietorship who appears to be in control or management of the place of business. R.R.O. 1990, Reg. 194, r. 16.02 (1); O. Reg. 465/93, s. 3; O. Reg. 69/95, ss. 6, 19, 20; O. Reg. 536/96, s. 2; O. Reg. 575/07, ss. 1, 16.

(2)  A person effecting personal service of a document need not produce the original document or have it in his or her possession. R.R.O. 1990, Reg. 194, r. 16.02 (2).

ALTERNATIVES TO PERSONAL SERVICE

Where Available

16.03  (1)  Where these rules or an order of the court permit service by an alternative to personal service, service shall be made in accordance with this rule. R.R.O. 1990, Reg. 194, r. 16.03 (1).

Acceptance of Service by Lawyer

(2)  Service on a party who has a lawyer may be made by leaving a copy of the document with the lawyer or an employee in the lawyer’s office, but service under this subrule is effective only if the lawyer endorses on the document or a copy of it an acceptance of service and the date of the acceptance. O. Reg. 575/07, s. 17.

(3)  By accepting service the lawyer shall be deemed to represent to the court that the lawyer has the authority of his or her client to accept service. R.R.O. 1990, Reg. 194, r. 16.03 (3); O. Reg. 575/07, s. 1.

Service by Mail to Last Known Address

(4)  Service of a document may be made by sending a copy of the document together with an acknowledgment of receipt card (Form 16A) by mail to the last known address of the person to be served, but service by mail under this subrule is only effective as of the date the sender receives the card. O. Reg. 24/00, s. 3.

Service at Place of Residence

(5)  Where an attempt is made to effect personal service at a person’s place of residence and for any reason personal service cannot be effected, the document may be served by,

(a) leaving a copy, in a sealed envelope addressed to the person, at the place of residence with anyone who appears to be an adult member of the same household; and

(b) on the same day or the following day mailing another copy of the document to the person at the place of residence,

and service in this manner is effective on the fifth day after the document is mailed. R.R.O. 1990, Reg. 194, r. 16.03 (5).

Service on a Corporation

(6)  Where the head office, registered office or principal place of business of a corporation or, in the case of an extra-provincial corporation, the attorney for service in Ontario cannot be found at the last address recorded with the Ministry of Consumer and Commercial Relations, service may be made on the corporation by mailing a copy of the document to the corporation or to the attorney for service in Ontario, as the case may be, at that address. R.R.O. 1990, Reg. 194, r. 16.03 (6).

SUBSTITUTED SERVICE OR DISPENSING WITH SERVICE

Where Order May be Made

16.04  (1)  Where it appears to the court that it is impractical for any reason to effect prompt service of an originating process or any other document required to be served personally or by an alternative to personal service under these rules, the court may make an order for substituted service or, where necessary in the interest of justice, may dispense with service. R.R.O. 1990, Reg. 194, r. 16.04 (1).

Effective Date of Service

(2)  In an order for substituted service, the court shall specify when service in accordance with the order is effective. R.R.O. 1990, Reg. 194, r. 16.04 (2).

(3)  Where an order is made dispensing with service of a document, the document shall be deemed to have been served on the date of the order for the purpose of the computation of time under these rules. R.R.O. 1990, Reg. 194, r. 16.04 (3).

SERVICE ON LAWYER OF RECORD

16.05  (1)  Service of a document on the lawyer of record of a party may be made,

(a) by mailing a copy to the lawyer’s office;

(b) by leaving a copy with a lawyer or employee in the lawyer’s office;

(c) by depositing a copy at a document exchange of which the lawyer is a member or subscriber, but service under this clause is effective only if the document or a copy of it and the copy deposited are date stamped by the document exchange in the presence of the person depositing the copy;

(d) by faxing a copy to the lawyer’s office in accordance with subrules (3), (3.1) and (3.2) but, where service is made under this clause between 4 p.m. and midnight, it shall be deemed to have been made on the following day;

(e) by sending a copy to the lawyer’s office by courier; or

(f) by e-mailing a copy to the lawyer’s office in accordance with subrule (4), but service under this rule is effective only if the lawyer of record provides by e-mail an acceptance of service and the date of the acceptance, and where the e-mail acceptance is received between 4 p.m. and midnight, service shall be deemed to have been made on the following day. O. Reg. 575/07, s. 18.

(2)  Service of a document by depositing a copy at a document exchange under clause (1) (c) is effective on the day following the day on which it was deposited and date stamped, unless that following day is a holiday, in which case service is effective on the next day that is not a holiday. R.R.O. 1990, Reg. 194, r. 16.05 (2).

(2.1)  Service of a document by sending a copy by courier under clause (1) (e) is effective on the second day following the day the courier was given the document, unless that second day is a holiday, in which case service is effective on the next day that is not a holiday. O. Reg. 351/94, s. 1 (2).

(3)  A document that is served by fax shall include a cover page indicating,

(a) the sender’s name, address and telephone number;

(b) the name of the lawyer to be served;

(c) the date and time of transmission;

(d) the total number of pages transmitted, including the cover page;

(e) the fax number of the sender; and

(f) the name and telephone number of a person to contact in the event of transmission problems. O. Reg. 536/96, s. 3 (2); O. Reg. 575/07, s. 1.

Fax of Certain Documents

(3.1)  A document of 16 pages or more inclusive of the cover page and the backsheet may be served by fax only between 4 p.m. and 8 a.m. the following day, unless the party to be served gives prior consent. O. Reg. 536/96, s. 3 (2); O. Reg. 206/02, s. 3 (3).

(3.2)  A motion record, application record, trial record, appeal book and compendium or book of authorities may not be served by fax at any time unless the party to be served gives prior consent. O. Reg. 536/96, s. 3 (2); O. Reg. 19/03, s. 4.

E-mail, Required Information

(4)  The e-mail message to which a document served under clause (1) (f) is attached shall include,

(a) the sender’s name, address, telephone number, fax number and e-mail address;

(b) the date and time of transmission; and

(c) the name and telephone number of a person to contact in the event of transmission problems. O. Reg. 24/00, s. 4 (2).

SERVICE BY MAIL

Manner of Service

16.06  (1)  Where a document is to be served by mail under these rules, a copy of the document shall be served by regular lettermail or by registered mail. O. Reg. 535/92, s. 6 (1).

Effective Date

(2)  Service of a document by mail, except under subrule 16.03 (4), is effective on the fifth day after the document is mailed but the document may be filed with proof of service before service becomes effective. R.R.O. 1990, Reg. 194, r. 16.06 (2); O. Reg. 535/92, s. 6 (2).

WHERE DOCUMENT DOES NOT REACH PERSON SERVED

16.07  Even though a person has been served with a document in accordance with these rules, the person may show on a motion to set aside the consequences of default, for an extension of time or in support of a request for an adjournment, that the document,

(a) did not come to the person’s notice; or

(b) came to the person’s notice only at some time later than when it was served or is deemed to have been served. R.R.O. 1990, Reg. 194, r. 16.07.

VALIDATING SERVICE

16.08  Where a document has been served in a manner other than one authorized by these rules or an order, the court may make an order validating the service where the court is satisfied that,

(a) the document came to the notice of the person to be served; or

(b) the document was served in such a manner that it would have come to the notice of the person to be served, except for the person’s own attempts to evade service. R.R.O. 1990, Reg. 194, r. 16.08.

PROOF OF SERVICE

Affidavit of Service

16.09  (1)  Service of a document may be proved by an affidavit of the person who served it (Form 16B). R.R.O. 1990, Reg. 194, r. 16.09 (1).

Sheriff’s Certificate

(2)  Personal service or service under subrule 16.03 (5) (service at place of residence) of a document by a sheriff or sheriff’s officer may be proved by a certificate of service (Form 16C). R.R.O. 1990, Reg. 194, r. 16.09 (2).

Lawyer’s Admission or Acceptance

(3)  A lawyer’s written admission or acceptance of service is sufficient proof of service and need not be verified by affidavit. O. Reg. 575/07, s. 19.

Document Exchange

(4)  Service of a document under clause 16.05 (1) (c) (document exchange) may be proved by the date stamp on the document or a copy of it. R.R.O. 1990, Reg. 194, r. 16.09 (4).

Proof of Service on Document

(5)  The affidavit or certificate of service may be printed on the backsheet or on a stamp or sticker affixed to the backsheet of the document served. R.R.O. 1990, Reg. 194, r. 16.09 (5).

(6)  Service of a document under clause 16.05 (1) (f) (e-mail) may be proved by a certificate of service of the person who served the document stating that he or she,

(a) served the document by e-mailing a copy in accordance with subrule (4) and received by e-mail an acceptance of service, with the date and time of the acceptance;

(b) has sworn an affidavit of service containing the particulars set out in the certificate of service;

(c) has kept the affidavit of service; and

(d) will, on the request of the court or a party, produce the affidavit of service. O. Reg. 24/00, s. 5.

RULE 17SERVICE OUTSIDE ONTARIO

DEFINITION

17.01  In rules 17.02 to 17.06,

“originating process” includes a counterclaim against only parties to the main action, and a crossclaim. R.R.O. 1990, Reg. 194, r. 17.01.

SERVICE OUTSIDE ONTARIO WITHOUT LEAVE

17.02  A party to a proceeding may, without a court order, be served outside Ontario with an originating process or notice of a reference where the proceeding against the party consists of a claim or claims,

Property in Ontario

(a) in respect of real or personal property in Ontario;

Administration of Estates

(b) in respect of the administration of the estate of a deceased person,

(i) in respect of real property in Ontario, or

(ii) in respect of personal property, where the deceased person, at the time of death, was resident in Ontario;

Interpretation of an Instrument

(c) for the interpretation, rectification, enforcement or setting aside of a deed, will, contract or other instrument in respect of,

(i) real or personal property in Ontario, or

(ii) the personal property of a deceased person who, at the time of death, was resident in Ontario;

Trustee Where Assets Include Property in Ontario

(d) against a trustee in respect of the execution of a trust contained in a written instrument where the assets of the trust include real or personal property in Ontario;

Mortgage on Property in Ontario

(e) for foreclosure, sale, payment, possession or redemption in respect of a mortgage, charge or lien on real or personal property in Ontario;

Contracts

(f) in respect of a contract where,

(i) the contract was made in Ontario,

(ii) the contract provides that it is to be governed by or interpreted in accordance with the law of Ontario,

(iii) the parties to the contract have agreed that the courts of Ontario are to have jurisdiction over legal proceedings in respect of the contract, or

(iv) a breach of the contract has been committed in Ontario, even though the breach was preceded or accompanied by a breach outside Ontario that rendered impossible the performance of the part of the contract that ought to have been performed in Ontario;

Tort Committed in Ontario

(g) in respect of a tort committed in Ontario;

Damage Sustained in Ontario

(h) in respect of damage sustained in Ontario arising from a tort, breach of contract, breach of fiduciary duty or breach of confidence, wherever committed;

Injunctions

(i) for an injunction ordering a party to do, or refrain from doing, anything in Ontario or affecting real or personal property in Ontario;

(j) Revoked: O. Reg. 131/04, s. 9.

(k) Revoked: O. Reg. 131/04, s. 9.

(l) Revoked: O. Reg. 131/04, s. 9.

Judgment of Court Outside Ontario

(m) on a judgment of a court outside Ontario;

Authorized by Statute

(n) authorized by statute to be made against a person outside Ontario by a proceeding commenced in Ontario;

Necessary or Proper Party

(o) against a person outside Ontario who is a necessary or proper party to a proceeding properly brought against another person served in Ontario;

Person Resident or Carrying on Business in Ontario

(p) against a person ordinarily resident or carrying on business in Ontario;

Counterclaim, Crossclaim or Third Party Claim

(q) properly the subject matter of a counterclaim, crossclaim or third or subsequent party claim under these rules; or

Taxes

(r) made by or on behalf of the Crown or a municipal corporation to recover money owing for taxes or other debts due to the Crown or the municipality. R.R.O. 1990, Reg. 194, r. 17.02; O. Reg. 171/98, s. 2; O. Reg. 131/04, s. 9.

SERVICE OUTSIDE ONTARIO WITH LEAVE

17.03  (1)  In any case to which rule 17.02 does not apply, the court may grant leave to serve an originating process or notice of a reference outside Ontario. R.R.O. 1990, Reg. 194, r. 17.03 (1).

(2)  A motion for leave to serve a party outside Ontario may be made without notice, and shall be supported by an affidavit or other evidence showing in which place or country the person is or probably may be found, and the grounds on which the motion is made. R.R.O. 1990, Reg. 194, r. 17.03 (2).

ADDITIONAL REQUIREMENTS FOR SERVICE OUTSIDE ONTARIO

17.04  (1)  An originating process served outside Ontario without leave shall disclose the facts and specifically refer to the provision of rule 17.02 relied on in support of such service. R.R.O. 1990, Reg. 194, r. 17.04 (1).

(2)  Where an originating process is served outside Ontario with leave of the court, the originating process shall be served together with the order granting leave and any affidavit or other evidence used to obtain the order. R.R.O. 1990, Reg. 194, r. 17.04 (2).

MANNER OF SERVICE OUTSIDE ONTARIO

Definitions

17.05  (1)  In this rule,

“contracting state” means a contracting state under the Convention; (“État contractant”)

“Convention” means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters signed at The Hague on November 15, 1965. (“Convention”) R.R.O. 1990, Reg. 194, r. 17.05 (1).

General Manner of Service

(2)  An originating process or other document to be served outside Ontario in a jurisdiction that is not a contracting state may be served in the manner provided by these rules for service in Ontario, or in the manner provided by the law of the jurisdiction where service is made, if service made in that manner could reasonably be expected to come to the notice of the person to be served. R.R.O. 1990, Reg. 194, r. 17.05 (2).

Manner of Service in Convention States

(3)  An originating process or other document to be served outside Ontario in a contracting state shall be served,

(a) through the central authority in the contracting state; or

(b) in a manner that is permitted by Article 10 of the Convention and that would be permitted by these rules if the document were being served in Ontario. O. Reg. 535/92, s. 7.

Proof of Service

(4)  Service may be proved,

(a) in the manner provided by these rules for proof of service in Ontario;

(b) in the manner provided by the law of the jurisdiction where service is made; or

(c) in accordance with the Convention, if service is made in a contracting state (Forms 17A to 17C). R.R.O. 1990, Reg. 194, r. 17.05 (4).

MOTION TO SET ASIDE SERVICE OUTSIDE ONTARIO

17.06  (1)  A party who has been served with an originating process outside Ontario may move, before delivering a defence, notice of intent to defend or notice of appearance,

(a) for an order setting aside the service and any order that authorized the service; or

(b) for an order staying the proceeding. R.R.O. 1990, Reg. 194, r. 17.06 (1).

(2)The court may make an order under subrule (1) or such other order as is just where it is satisfied that,

(a) service outside Ontario is not authorized by these rules;

(b) an order granting leave to serve outside Ontario should be set aside; or

(c) Ontario is not a convenient forum for the hearing of the proceeding. R.R.O. 1990, Reg. 194, r. 17.06 (2).

(3)  Where on a motion under subrule (1) the court concludes that service outside Ontario is not authorized by these rules, but the case is one in which it would have been appropriate to grant leave to serve outside Ontario under rule 17.03, the court may make an order validating the service. R.R.O. 1990, Reg. 194, r. 17.06 (3).

(4)  The making of a motion under subrule (1) is not in itself a submission to the jurisdiction of the court over the moving party. R.R.O. 1990, Reg. 194, r. 17.06 (4).

RULE 18TIME FOR DELIVERY OF STATEMENT OF DEFENCE

TIME FOR DELIVERY OF STATEMENT OF DEFENCE

18.01  Except as provided in rule 18.02 or subrule 19.01 (5) (late delivery of defence) or 27.04 (2) (counterclaim against plaintiff and non-party), a statement of defence (Form 18A) shall be delivered,

(a) within twenty days after service of the statement of claim, where the defendant is served in Ontario;

(b) within forty days after service of the statement of 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 statement of claim, where the defendant is served anywhere else. R.R.O. 1990, Reg. 194, r. 18.01.

NOTICE OF INTENT TO DEFEND

18.02  (1)  A defendant who is served with a statement of claim and intends to defend the action may deliver a notice of intent to defend (Form 18B) within the time prescribed for delivery of a statement of defence. R.R.O. 1990, Reg. 194, r. 18.02 (1).

(2)  A defendant who delivers a notice of intent to defend within the prescribed time is entitled to ten days, in addition to the time prescribed by rule 18.01, within which to deliver a statement of defence. R.R.O. 1990, Reg. 194, r. 18.02 (2).

(3)  Subrules (1) and (2) apply, with necessary modifications, to,

(a) a defendant to a counterclaim who is not already a party to the main action and who has been served with a statement of defence and counterclaim; and

(b) a third party who has been served with a third party claim. R.R.O. 1990, Reg. 194, r. 18.02 (3).

18.03  Revoked: O. Reg. 457/01, s. 4.

DISPOSITION WITHOUT TRIAL

RULE 19DEFAULT 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, or of deemed service under subrule 16.01 (2), require the registrar to note the defendant in default. R.R.O. 1990, Reg. 194, r. 19.01 (1); O. Reg. 113/01, s. 3.

Noting Default Electronically

(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. O. Reg. 288/99, s. 12.

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. R.R.O. 1990, Reg. 194, r. 19.01 (2).

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. R.R.O. 1990, Reg. 194, r. 19.01 (3)

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. O. Reg. 19/03, s. 5.

Late Delivery of Defence

(5)  A defendant may deliver a statement of defence at any time before being noted in default under this rule. R.R.O. 1990, Reg. 194, r. 19.01 (5).

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. R.R.O. 1990, Reg. 194, r. 19.02 (1).

(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. R.R.O. 1990, Reg. 194, r. 19.02 (2).

(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); and

(n) subrule 64.06 (21) (notice of change of account);

(o) Revoked: O. Reg. 131/04, s. 10 (2).

(p) Revoked: O. Reg. 131/04, s. 10 (2).

R.R.O. 1990, Reg. 194, r. 19.02 (3); O. Reg. 69/95, s. 19; O. Reg. 131/04, s. 10.

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. R.R.O. 1990, Reg. 194, r. 19.03 (1).

(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. R.R.O. 1990, Reg. 194, r. 19.03 (2).

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). R.R.O. 1990, Reg. 194, r. 19.04 (1).

(1.1)  Revoked: O. Reg. 14/04, s. 13.

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, setting out the rate; and

(e) stating whether the plaintiff wishes costs to be fixed by the registrar or assessed. R.R.O. 1990, Reg. 194, r. 19.04 (2).

Registrar may Decline to Sign Default Judgment

(3)  The registrar may decline to sign default judgment if 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. O. Reg. 171/98, s. 4.

(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. O. Reg. 171/98, s. 4.

Where Claim Partially Satisfied

(4)  Where the claim has been partially satisfied, the default judgment shall be confined to the remainder of the claim. R.R.O. 1990, Reg. 194, r. 19.04 (4).

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, the default judgment shall provide for postjudgment interest at the rate claimed. R.R.O. 1990, Reg. 194, r. 19.04 (5).

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. R.R.O. 1990, Reg. 194, r. 19.04 (6).

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. R.R.O. 1990, Reg. 194, r. 19.05 (1).

(2)  A motion for judgment under subrule (1) shall be supported by evidence given by affidavit if the claim is for unliquidated damages. R.R.O. 1990, Reg. 194, r. 19.05 (2); O. Reg. 131/04, s. 11.

(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. R.R.O. 1990, Reg. 194, r. 19.05 (3).

(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. R.R.O. 1990, Reg. 194, r. 19.05 (4).

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. R.R.O. 1990, Reg. 194, r. 19.06.

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. R.R.O. 1990, Reg. 194, r. 19.07.

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. R.R.O. 1990, Reg. 194, r. 19.08 (1).

(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. R.R.O. 1990, Reg. 194, r. 19.08 (2).

(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. R.R.O. 1990, Reg. 194, r. 19.08 (3).

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). R.R.O. 1990, Reg. 194, r. 19.09.

RULE 20SUMMARY 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. R.R.O. 1990, Reg. 194, r. 20.01 (1).

(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. R.R.O. 1990, Reg. 194, r. 20.01 (2).

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. R.R.O. 1990, Reg. 194, r. 20.01 (3).

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. R.R.O. 1990, Reg. 194, r. 20.02; O. Reg. 533/95, s. 2.

Note: On January 1, 2010, rule 20.02 is revoked and the following substituted:

EVIDENCE ON MOTION

20.02  (1)  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, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. O. Reg. 438/08, s. 12.

(2)  In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. O. Reg. 438/08, s. 12.

See: O. Reg. 438/08, ss. 12, 68 (1).

FACTUMS REQUIRED

20.03  (1)  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. O. Reg. 14/04, s. 14.

(2)  The moving party’s factum shall be served at least four days before the hearing. O. Reg. 14/04, s. 14.

(3)  The responding party’s factum shall be served at least two days before the hearing. O. Reg. 14/04, s. 14.

(4)  Each party’s factum shall be filed, with proof of service, in the court office where the motion is to be heard, at least two days before the hearing. O. Reg. 14/04, s. 14.

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 the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue for trial. R.R.O. 1990, Reg. 194, r. 20.04 (1); O. Reg. 533/95, s. 3.

Note: On January 1, 2010, subrule (1) is revoked. See: O. Reg. 438/08, ss. 13 (1), 68 (1).

(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

Note: On January 1, 2010, clause (a) is amended by striking out “no genuine issue for trial” and substituting “no genuine issue requiring a trial”. See: O. Reg. 438/08, ss. 13 (2), 68 (1).

(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. O. Reg. 284/01, s. 6.

Note: On January 1, 2010, rule 20.04 is amended by adding the following subrules:

Powers

(2.1)  In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence. O. Reg. 438/08, s. 13 (3).

Oral Evidence (Mini-Trial)

(2.2)  A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. O. Reg. 438/08, s. 13 (3).

See: O. Reg. 438/08, ss. 13 (3), 68 (1).

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. R.R.O. 1990, Reg. 194, r. 20.04 (3).

Note: On January 1, 2010, the French version of subrule (3) is amended. See: O. Reg. 438/08, ss. 13 (4), 68 (1).

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. R.R.O. 1990, Reg. 194, r. 20.04 (4).

Note: On January 1, 2010, the French version of subrule (4) is amended. See: O. Reg. 438/08, ss. 13 (4), 68 (1).

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. R.R.O. 1990, Reg. 194, r. 20.04 (5).

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. R.R.O. 1990, Reg. 194, r. 20.05 (1).

(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. R.R.O. 1990, Reg. 194, r. 20.05 (2).

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. R.R.O. 1990, Reg. 194, r. 20.05 (3).

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. R.R.O. 1990, Reg. 194, r. 20.05 (4).

(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. R.R.O. 1990, Reg. 194, r. 20.05 (5).

Note: On January 1, 2010, rule 20.05 is revoked and the following substituted:

WHERE 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 order that the action proceed to trial expeditiously. O. Reg. 438/08, s. 14.

Directions and Terms

(2)  If an action is ordered to proceed to trial under subrule (1), the court may give such directions or impose such terms as are just, including an order,

(a) that each party deliver, within a specified time, an affidavit of documents in accordance with the court’s directions;

(b) that any motions be brought within a specified time;

(c) that a statement setting out what material facts are not in dispute be filed within a specified time;

(d) that examinations for discovery be conducted in accordance with a discovery plan established by the court, which may set a schedule for examinations and impose such limits on the right of discovery as are just, including a limit on the scope of discovery to matters not covered by the affidavits or any other evidence filed on the motion and any cross-examinations on them;

(e) that a discovery plan agreed to by the parties under Rule 29.1 (discovery plan) be amended;

(f) that the affidavits or any other evidence filed on the motion and any cross-examinations on them may be used at trial in the same manner as an examination for discovery;

(g) that any examination of a person under Rule 36 (taking evidence before trial) be subject to a time limit;

(h) that a party deliver, within a specified time, a written summary of the anticipated evidence of a witness;

(i) that any oral examination of a witness at trial be subject to a time limit;

(j) that the evidence of a witness be given in whole or in part by affidavit;

(k) that any experts engaged by or on behalf of the parties in relation to the action meet on a without prejudice basis in order to identify the issues on which the experts agree and the issues on which they do not agree, to attempt to clarify and resolve any issues that are the subject of disagreement and to prepare a joint statement setting out the areas of agreement and any areas of disagreement and the reasons for it if, in the opinion of the court, the cost or time savings or other benefits that may be achieved from the meeting are proportionate to the amounts at stake or the importance of the issues involved in the case and,

(i) there is a reasonable prospect for agreement on some or all of the issues, or

(ii) the rationale for opposing expert opinions is unknown and clarification on areas of disagreement would assist the parties or the court;

(l) that each of the parties deliver a concise summary of his or her opening statement;

(m) that the parties appear before the court by a specified date, at which appearance the court may make any order that may be made under this subrule;

(n) that the action be set down for trial on a particular date or on a particular trial list, subject to the direction of the regional senior judge;

(o) for payment into court of all or part of the claim; and

(p) for security for costs. O. Reg. 438/08, s. 14.

Specified Facts

(3)  At the trial, any facts specified under subrule (1) or clause (2) (c) shall be deemed to be established unless the trial judge orders otherwise to prevent injustice. O. Reg. 438/08, s. 14.

Order re Affidavit Evidence

(4)  In deciding whether to make an order under clause (2) (j), the fact that an adverse party may reasonably require the attendance of the deponent at trial for cross-examination is a relevant consideration. O. Reg. 438/08, s. 14.

Order re Experts, Costs

(5)  If an order is made under clause (2) (k), each party shall bear his or her own costs. O. Reg. 438/08, s. 14.

Failure to Comply with Order

(6)  Where a party fails to comply with an order under clause (2) (o) for payment into court or under clause (2) (p) 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. O. Reg. 438/08, s. 14.

(7)  Where on a motion under subrule (6) the statement of defence is struck out, the defendant shall be deemed to be noted in default. O. Reg. 438/08, s. 14.

See: O. Reg. 438/08, ss. 14, 68 (1).

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. R.R.O. 1990, Reg. 194, r. 20.06 (1); O. Reg. 284/01, s. 7 (1); O. Reg. 284/01, s. 7 (2).

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. R.R.O. 1990, Reg. 194, r. 20.06 (2).

Note: On January 1, 2010, rule 20.06 is revoked and the following substituted:

COSTS SANCTIONS FOR IMPROPER USE OF RULE

20.06  The court may fix and order payment of the costs of a motion for summary judgment by a party on a substantial indemnity basis if,

(a) the party acted unreasonably by making or responding to the motion; or

(b) the party acted in bad faith for the purpose of delay. O. Reg. 438/08, s. 14.

See: O. Reg. 438/08, ss. 14, 68 (1).

EFFECT OF SUMMARY JUDGMENT

20.07  A plaintiff who obtains summary judgment may proceed against the same defendant for any other relief. R.R.O. 1990, Reg. 194, r. 20.07.

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. R.R.O. 1990, Reg. 194, r. 20.08.

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. R.R.O. 1990, Reg. 194, r. 20.09.

RULE 21DETERMINATION 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. R.R.O. 1990, Reg. 194, r. 21.01 (1).

(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). R.R.O. 1990, Reg. 194, r. 21.01 (2).

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. R.R.O. 1990, Reg. 194, r. 21.01 (3).

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. R.R.O. 1990, Reg. 194, r. 21.02.

FACTUMS REQUIRED

21.03  (1)  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. O. Reg. 14/04, s. 15.

(2)  The moving party’s factum shall be served at least four days before the hearing. O. Reg. 14/04, s. 15.

(3)  The responding party’s factum shall be served at least two days before the hearing. O. Reg. 14/04, s. 15.

(4)  Each party’s factum shall be filed, with proof of service, in the court office where the motion is to be heard, at least two days before the hearing. O. Reg. 14/04, s. 15.

RULE 22SPECIAL CASE

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. R.R.O. 1990, Reg. 194, r. 22.01 (1).

(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. R.R.O. 1990, Reg. 194, r. 22.01 (2).

FACTUMS REQUIRED

22.02  (1)  On a motion under rule 22.01, 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. O. Reg. 14/04, s. 16.

(2)  The moving party’s factum shall be served at least four days before the hearing. O. Reg. 14/04, s. 16.

(3)  The responding party’s factum shall be served at least two days before the hearing. O. Reg. 14/04, s. 16.

(4)  Each party’s factum shall be filed, with proof of service, in the court office where the motion is to be heard, at least two days before the hearing. O. Reg. 14/04, s. 16.

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. R.R.O. 1990, Reg. 194, r. 22.03 (1).

(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. R.R.O. 1990, Reg. 194, r. 22.03 (2).

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 lawyers for the parties. R.R.O. 1990, Reg. 194, r. 22.04; O. Reg. 575/07, s. 2.

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. R.R.O. 1990, Reg. 194, r. 22.05 (1).

(2)  On the determination of the question of law the court may make an order or grant judgment accordingly. R.R.O. 1990, Reg. 194, r. 22.05 (2).

RULE 23DISCONTINUANCE 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 of all parties. R.R.O. 1990, Reg. 194, r. 23.01 (1); O. Reg. 427/01, s. 10.

(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. O. Reg. 19/03, s. 6.

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. R.R.O. 1990, Reg. 194, r. 23.02.

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. R.R.O. 1990, Reg. 194, r. 23.03.

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. O. Reg. 770/92, s. 6.

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. R.R.O. 1990, Reg. 194, r. 23.04 (1).