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ONTARIO REGULATION 394/09

made under the

COURTS OF JUSTICE ACT

Made: September 24, 2009
Approved: October 16, 2009
Filed: October 16, 2009
Published on e-Laws: October 19, 2009
Printed in The Ontario Gazette: October 31, 2009

Amending Reg. 194 of R.R.O. 1990

(Rules of Civil Procedure)

Note: Regulation 194 has previously been amended. For the legislative history of the Regulation, see the Table of Consolidated Regulations – Detailed Legislative History at www.e-Laws.gov.on.ca.

1.  Paragraph 1 of subrule 1.02 (1) of Regulation 194 of the Revised Regulations of Ontario, 1990 is amended by striking out “Regulation 201 of the Revised Regulations of Ontario, 1990” at the end and substituting “Ontario Regulation 258/98 (Rules of the Small Claims Court)”.

2.  Subrule 1.08.1 (9) of the Regulation is revoked.

3.  Clause 3.01 (1) (c) of the Regulation is amended by striking out “under these rules”.

4.  Subrules 20.03 (2), (3) and (4) of the Regulation are revoked and the following substituted:

(2)  The moving party’s factum shall be served and filed with proof of service in the court office where the motion is to be heard at least seven days before the hearing.

(3)  The responding party’s factum shall be served and filed with proof of service in the court office where the motion is to be heard at least four days before the hearing.

5.  Subrules 21.03 (2), (3) and (4) of the Regulation are revoked and the following substituted:

(2)  The moving party’s factum shall be served and filed with proof of service in the court office where the motion is to be heard at least seven days before the hearing.

(3)  The responding party’s factum shall be served and filed with proof of service in the court office where the motion is to be heard at least four days before the hearing.

6.  Subrules 22.02 (2), (3) and (4) of the Regulation are revoked and the following substituted:

(2)  The moving party’s factum shall be served and filed with proof of service in the court office where the motion is to be heard at least seven days before the hearing.

(3)  The responding party’s factum shall be served and filed with proof of service in the court office where the motion is to be heard at least four days before the hearing.

7.  (1)  Subrule 23.03 (1) of the Regulation is amended by striking out “with costs”.

(2)  Rule 23.03 of the Regulation is amended by adding the following subrule:

(1.1)  Where an action against a defendant against whom a crossclaim has been made is discontinued, the crossclaim shall be deemed to be dismissed thirty days after the discontinuance, unless the court orders otherwise during the thirty-day period.

(3)  Subrule 23.03 (2) of the Regulation is amended by striking out “The deemed dismissal” at the beginning and substituting “A deemed dismissal under this rule”.

8.  Rule 23.05 of the Regulation is revoked and the following substituted:

COSTS OF DISCONTINUANCE, DEEMED DISMISSAL

23.05  (1)  If all or part of an action is discontinued, any party to the action may, within thirty days after the action is discontinued, make a motion respecting the costs of the action.

(2)  If a crossclaim or third party claim is deemed to be dismissed, any party to the crossclaim or third party claim may, within thirty days after the deemed dismissal, make a motion respecting the costs of the crossclaim or third party claim.

9.  Rule 24 of the Regulation is amended by adding the following rule:

NOTICE OF ORDER

24.02.1  If the defendant is successful on the motion to dismiss an action for delay, the defendant shall serve a copy of the order dismissing the action on every defendant to the action who has crossclaimed against him or her.

10.  (1)  Subrule 24.04 (1) of the Regulation is revoked and the following substituted:

EFFECT OF DISMISSAL ON CROSSCLAIM OR THIRD PARTY CLAIM

(1)  Unless the court orders otherwise, where an action against a defendant who has crossclaimed or made a third party claim is dismissed for delay, the crossclaim or third party claim shall be deemed to be dismissed.

(1.1)  Where an action against a defendant against whom a crossclaim has been made is dismissed for delay, the crossclaim shall be deemed to be dismissed thirty days after a copy of the order dismissing the action is served on the crossclaiming defendant under rule 24.02.1, unless the court orders otherwise during the thirty-day period.

(2)  Subrule 24.04 (2) of the Regulation is amended by striking out “The deemed dismissal” at the beginning and substituting “A deemed dismissal under this rule”.

11.  Rule 24 of the Regulation is amended by adding the following rule:

COSTS OF DISMISSAL, DEEMED DISMISSAL

24.05.1  (1)  If an action is dismissed for delay, any party to the action may, within thirty days after the dismissal, make a motion respecting the costs of the action.

(2)  If a crossclaim or third party claim is deemed to be dismissed, any party to the crossclaim or third party claim may, within thirty days after the deemed dismissal, make a motion respecting the costs of the crossclaim or third party claim.

12.  Subrule 24.06 of the Regulation is amended by striking out “24.05” and substituting “24.05.1”.

13.  Subrule 24.1.13 (3) of the Regulation is revoked.

14.  Subrule 34.18 (2) of the Regulation is amended by striking out “two” and substituting “four”.

15.  (1)  Subrule 37.10 (7) of the Regulation, as amended by subsection 35 (3) of Ontario Regulation 438/08, is revoked and the following substituted:

(7)  The moving party’s factum, if any, shall be served and filed with proof of service in the court office where the motion is to be heard at least seven days before the hearing.

(2)  Subrule 37.10 (8) of the Regulation, as amended by subsection 35 (4) of Ontario Regulation 438/08, is revoked and the following substituted:

(8)  The responding party’s factum, if any, shall be served and filed with proof of service in the court office where the motion is to be heard at least four days before the hearing.

(3)  Subrule 37.10 (9) of the Regulation is revoked.

16.  Subrule 37.15 (1.2) of the Regulation is amended by striking out “in respect of the motions”.

17.  (1)  Subrule 39.01 (2) of the Regulation is amended by striking out “two” and substituting “seven”.

(2)  Subrule 39.01 (3) of the Regulation is amended by striking out “two” and substituting “four”.

18.  Subrules 40.04 (2), (3) and (4) of the Regulation are revoked and the following substituted:

(2)  The moving party’s factum shall be served and filed with proof of service in the court office where the motion is to be heard at least seven days before the hearing.

(3)  The responding party’s factum shall be served and filed with proof of service in the court office where the motion is to be heard at least four days before the hearing.

19.  Subrules 42.02 (3), (4) and (5) of the Regulation are revoked and the following substituted:

(3)  The moving party’s factum shall be served and filed with proof of service in the court office where the motion is to be heard at least seven days before the hearing.

(4)  The responding party’s factum shall be served and filed with proof of service in the court office where the motion is to be heard at least four days before the hearing.

20.  (1)  Rule 48.14 of the Regulation, as remade by section 46 of Ontario Regulation 438/08, is amended by adding the following subrule:

Definition

(0.1) In this rule,

“defence” means,

(a) a statement of defence,

(b) a notice of intent to defend, and

(c) a notice of motion in response to an action, other than a motion challenging the court’s jurisdiction.

(2)  The English version of subrule 48.14 (1) of the Regulation, as remade by section 46 of Ontario Regulation 438/08, is amended by striking out “if an action in which a statement of defence has been filed” and substituting “if an action in which a defence has been filed”.

(3)  Subrule 48.14 (1) of the Regulation, as remade by section 46 of Ontario Regulation 438/08, is amended by striking out “within two years after the filing of a statement of defence” and substituting “within two years after the first defence is filed”.

(4)  Subrule 48.14 (15) of the Regulation, as made by section 46 of Ontario Regulation 438/08, is amended by striking out “(14)” at the end and substituting “(13)”.

21.  (1)  Paragraph 2 of subrule 48.15 (1) of the Regulation is revoked and the following substituted:

2. None of the following has been filed:

i. A statement of defence.

ii. A notice of intent to defend.

iii. A notice of motion in response to an action, other than a motion challenging the court’s jurisdiction.

(2)  Rule 48.15 of the Regulation is amended by adding the following subrules:

Transition

(6)  In the case of an action commenced before January 1, 2010, other than an action governed by Rule 76 or 77, the following rules apply, unless the court orders otherwise:

1. If a step is taken in the action on or after January 1, 2010 and before January 1, 2012, subrule (1) applies as if the action started on the date on which the step was taken.

2. If no step is taken in the action on or after January 1, 2010 and before January 1, 2012, the action is deemed on January 1, 2012 to be dismissed as abandoned on that date, unless the plaintiff is under a disability.

3. An action deemed to be dismissed under paragraph 2 may be set aside under rule 37.14 and, for the purpose, the deemed dismissal shall be treated as if it were an order of the registrar.

Transition, Former Rule 78 Actions

(7)  Despite subrule (6) and subrule 77.09 (2), in the case of an action that was governed by Rule 78 immediately before January 1, 2010, rule 78.06, as it read immediately before that date, continues to apply to the action, and this rule does not apply.

22.  Rule 50.02 of the Regulation, as remade by section 47 of Ontario Regulation 438/08, is revoked and the following substituted:

PRE-TRIAL CONFERENCES FOR ACTIONS

50.02  (1)  Unless the court orders otherwise, within 180 days after an action is set down for trial, the parties shall schedule with the registrar a date and time acceptable to all parties to appear before a judge or case management master for a pre-trial conference under this Rule.

(2)  If the parties do not schedule a pre-trial conference within 180 days after the action is set down for trial, the registrar shall, subject to any previous order,

(a) schedule a date and time for the parties to appear before a judge or case management master for a pre-trial conference under this Rule; and

(b) give notice to the parties to appear at the scheduled date and time.

23.  Subrule 60.08 (12) of the Regulation is revoked and the following substituted:

(12)  For the purposes of subrule (11), a debt of the garnishee to the debtor includes,

(a) a debt payable at the time the notice of garnishment is served; and

(b) a debt payable (whether absolutely or on the fulfilment of a condition) after the notice is served and within six years after it is issued.

24.  Subrule 61.03 (8) of the Regulation is amended by striking out “under clause 133 (b) of the Courts of Justice Act or under another statute that requires leave for an appeal” in the portion before clause (a) and substituting “under a statute that requires leave for an appeal”.

25.  Subrule 61.03.1 (18) of the Regulation is amended by striking out “under clause 133 (b) of the Courts of Justice Act or under another statute that requires leave for an appeal” in the portion before clause (a) and substituting “under a statute that requires leave for an appeal”.

26.  Subrule 61.07 (1.2) of the Regulation is revoked and the following substituted:

(1.2)  The respondent shall obtain leave to appeal in the manner provided by subrule 61.03 (8) or 61.03.1 (18), as the case may be, if the cross-appeal is taken under a statute that requires leave for an appeal.

27.  (1)  Subrule 61.13 (5) of the Regulation is amended by striking out “with costs” at the end and substituting “with costs fixed at $750, despite rule 58.13”.

(2)  Subrule 61.13 (8) of the Regulation is amended by striking out “with costs” in the portion after clause (b) and substituting “with costs fixed at $750, despite rule 58.13”.

28.  Subrule 61.13.1 (2) of the Regulation is amended by striking out “with costs” at the end and substituting “with costs fixed at $750, despite rule 58.13”.

29.  Subrule 61.16 (8) of the Regulation is amended by striking out “with costs” in the portion before clause (a) and substituting “with costs fixed at $750, despite rule 58.13”.

30.  (1)  Subrule 62.02 (6.1) of the Regulation, as amended by subsection 50 (1) of Ontario Regulation 438/08, is revoked and the following substituted:

(6.1)  The moving party’s factum shall be served and filed with proof of service in the court office where the motion is to be heard at least seven days before the hearing.

(2)  Subrule 62.02 (6.2) of the Regulation, as amended by subsection 50 (2) of Ontario Regulation 438/08, is revoked and the following substituted:

(6.2)  The responding party’s factum shall be served and filed with proof of service in the court office where the motion is to be heard at least four days before the hearing.

(3)  Subrule 62.02 (6.3) of the Regulation is revoked.

31.  Subrule 68.06 (3) of the Regulation is amended by striking out “with costs” at the end and substituting “with costs fixed at $750, despite rule 58.13”.

32.  The Table of Forms to the Regulation is amended by striking out,

48C.1

Status Notice: Action Not on a Trial List

November 1, 2008

. . . . .

48E

Notice that Action will be Dismissed

November 1, 2008

48F

Order Dismissing Action as Abandoned

November 1, 2008

. . . . .

61I

Order Dismissing Appeal or Cross-Appeal for Delay

November 1, 2005

61J

Order Dismissing Motion for Leave to Appeal for Delay

November 1, 2005

61J.1

Order Dismissing Motion for Delay

November 1, 2005

. . . . .

68C

Order Dismissing Application for Judicial Review

November 1, 2005

and substituting,

48C.1

Status Notice: Action Not on a Trial List

July 30, 2009

. . . . .

48E

Notice that Action will be Dismissed

July 30, 2009

48F

Order Dismissing Action as Abandoned

July 30, 2009

. . . . .

61I

Order Dismissing Appeal or Cross-Appeal for Delay

July 30, 2009

61J

Order Dismissing Motion for Leave to Appeal for Delay

July 30, 2009

61J.1

Order Dismissing Motion for Delay

July 30, 2009

. . . . .

68C

Order Dismissing Application for Judicial Review

July 30, 2009

33.  (1)  Subject to subsection (2), this Regulation comes into force on January 1, 2010.

(2)  Sections 1 to 3 and this section come into force on the day this Regulation is filed.

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