NEWFOUNDLAND AND LABRADOR REGULATION 111/10

1. Rule 7A.09 of the Rules of the Supreme Court, 1986 is repealed and the following substituted:

Pre-trial conference

7A.09. Notwithstanding Rule 39A, a case management judge appointed under this rule shall conduct the pre-trial conference contemplated by Rule 39A, whether or not he or she may be the trial judge.

2. Rule 8.05 of the rules is repealed and the following substituted:

Discovery and interrogatories

8.05. Rules 30 to 35, both inclusive, and Rules 39, 39A, 39B and 39C shall apply to a person under disability and to his or her guardian for the action.

3. Rule 17A.09(1) of the rules is repealed and the following substituted:

Expedited trial

17A.09. (1) Notwithstanding that there may have been an application under rule 17.01, 17A.01, 40.03 or 40.04, the Court may, on application by any party where

(a) the claim is for a liquidated sum not exceeding $15,000 excluding post-judgment interest and costs; or

(b) in any other case where action under this rule can be taken without injustice to any other party,

order the expedited trial of a proceeding or an issue in a proceeding, and may order that

(d) pleadings be amended or closed within a fixed time;

(e) interlocutory applications be brought within a fixed time;

(f) procedures for examination for discovery be completed within a fixed time;

(g) examination for discovery be dispensed with or limited in nature and scope;

(h) other pre-trial applications or procedures be dispensed with or limited in nature and scope;

(i) evidence be adduced by affidavit;

(j) a party deliver a written summary of the proposed evidence of a witness within a fixed time;

(k) the evidence in chief of a witness be given in whole or in part by the production of a written statement;

(l) experts who have been retained by the parties meet, on a without prejudice basis, to determine those matters on which they agree and to identify those matters on which they do not agree;

(m) a pre-trial conference be held at a time and date to be fixed, at which any of the orders in this rule may be made; and

(n) a pre-trial conference be dispensed with and the proceeding be set down for trial on a trial list or, with the approval of the Chief Justice, set for trial on a particular date.

4. Rule 18.02 of the rules is repealed and the following substituted:

Separate trials or hearings in a proceeding

18.02. When 2 or more causes of actions or parties are joined in a proceeding, the Court may order separate trials under rule 40.11 or separate hearings under rule 29.14.

5. Rule 18A.03(2) of the rules is repealed and the following substituted:

(2) An application under rule 18A.03( 1) may be made

(a) to the court, by way of an interlocutory application, with notice to the other parties;

(b) informally to the Chief Justice, or a judge designated by the Chief Justice, where all parties consent; or

(c) to a judge conducting a pre-trial conference, who may make an order where all parties consent, or, where they do not consent, may move the matter into applications court where it may be dealt with on application.

6. (1) Rule 18A.06(3) of the rules is repealed and the following substituted:

(3) At a case management meeting, the judge and the parties may discuss any or all of the following matters:

(a) the nature and extent of the pre-trial procedures that may be required to advance the proceedings;

(b) the timing and methodology associated with the making of any application;

(d) the possibility of resolving procedural steps by agreement;

(e) the appropriateness of restructuring any or all of the proceedings for trial;

(f) the setting or re-adjustment of timetables for steps to be taken in the proceedings;

(g) the determination of readiness for trial of some or all of the proceedings, if more than one;

(h) those other matters as would be discussed and dealt with at a pre-trial conference;

(i) the appropriateness of holding a settlement conference or mediation session;

(j) the manner of conduct of the trial;

(k) the preparation and filing of a certificate of readiness when the matter is ready for trial; and

(l) any other matters pertinent to or affecting the proper conduct of the proceeding.

(2) Rule 18A.06(7) of the rules is repealed and the following substituted:

(7) Where a case management order has been made and the parties have filed a certificate of readiness, a pre-trial conference need not be held as a condition of the matter being placed on a trial list.

7. Rule 29.09(4) of the rules is repealed and the following substituted:

(4) Rules 30 to 36 and 38 on discovery procedures shall, with any necessary modification, apply to an application.

8. Rule 29.17 of the rules is repealed.

9. Rule 37A of the rules is repealed and the following substituted:

RULE 37A
COURT ORDERED MEDIATION

Definitions

37A.01. In this rule, unless the context otherwise requires, the following words and phrases shall have the following meanings:

(a) "defence" means a statement of defence filed by a defendant under Rule 10 or, in the case of an application, the first affidavit, memorandum or other document filed by a respondent under Rule 29, and in the case of a matter involving multiple defendants or respondents, it means the first defence or document so filed;

(b) "mediation" means a process of discussion between parties or their solicitors if the parties are represented, or both the parties and their solicitors, under the direction of a neutral third party with a view to facilitating communication among the parties to assist them in reaching a mutually acceptable resolution of some or all of the issues in dispute;

(c) "mediation co-ordinator" means the person designated by the Registrar to administer the Court ordered mediation process contemplated by this rule;

(d) "mediation order" means an order made under rule 37A.03;

(e) "mediator" means a person or 2 or more persons appointed under rule 37A.03(4); and

(f) "mediators list" means a list of names of mediators approved by the Registrar.

Purpose

37A.02. The purpose of this rule is to establish a mechanism to provide mandatory mediation under a Court order in individual cases so as to reduce cost and delay in litigation and to facilitate the early and fair resolution of disputes.

Court ordered mediation

37A.03. (1) Following the filing of a defence, the Court may, on the application of a party or on its own motion, order that the parties named in the order participate in mediation in accordance with the provisions of this rule.

(2) In considering whether to exercise the power conferred by paragraph (1), the Court shall take account of the relevant circumstances including

(a) the number of parties, the state of the pleadings and the complexity of the issues in the proceeding;

(b) the nature of the legal issues raised in the proceeding;

(d) whether a party is represented by a solicitor;

(e) the financial resources of the parties; and

(f) whether mediation, under this rule or otherwise, has been held on a previous occasion.

(3) Unless otherwise ordered

(a) a mediation ordered under this rule shall commence within 24 days of the date of the mediation order; and

(b) a party shall not be required to participate in mediation under a mediation order for a period longer than 4 hours in total.

(4) A mediation under this rule shall be conducted by

(a) a person appointed by the judge making the mediation order;

(b) a mediator appointed by agreement of the parties from the mediators list, within 10 days of the date of the mediation order;

(c) a person who is not on the mediators list, if the parties consent and if that person is appointed within 10 days of the date of the mediation order;

(d) a mediator assigned by the mediation co-ordinator from the mediators list in default of notification under clause (b) or (c); or

(e) 2 or more persons appointed as co-mediators by the judge making the mediation order.

(5) A mediation order may contain the following provisions:

(a) the name of the mediator or an order to select a mediator under paragraph (4);

(b) the time within which the mediation shall commence;

(d) the responsibility for payment of costs of the mediation including fees and expenses of the mediator and the manner and timing of payment of those costs;

(e) a dispensation for a party from attendance at a mediation session;

(f) a requirement that some other person attend the mediation in place of or in addition to a party; and

(g) those other terms and conditions as, in the opinion of the judge, may be desirable to facilitate the mediation.

(6) Unless otherwise ordered, where a mediation order is made, all further proceedings are stayed until the mediator's report is filed under rule 37A.06, and any time limited for the doing of an act or the filing of a document under the Rules shall be suspended for the period of the stay.

Procedure at mediation sessions

37A.04. (1) Following the appointment of a mediator, the parties shall expeditiously contact the mediator to set a time for the mediation.

(2) Unless the parties and the mediator agree otherwise, at least 7 days before the first scheduled mediation session, each party shall provide to the mediator and each other party a brief statement of factual and legal issues in dispute, a summary of that party's position and copies of all documents relevant to the proceeding. The plaintiff or applicant shall provide the mediator with a copy of the relevant pleadings.

(3) If it is not practical to conduct a mediation session because a party fails to comply with paragraph (2), the mediator may cancel the session and immediately file with the mediation co-ordinator a certificate of non-compliance.

(4) The parties, and their solicitors if the parties are represented, shall attend the mediation session unless otherwise ordered.

(5) Unless otherwise ordered, if an insurer may be liable to satisfy all or a part of a judgment in the proceeding or to indemnify or reimburse a party for money paid in satisfaction of all or a part of a judgment in the proceeding, a representative of the insurer and its solicitor shall attend the mediation session.

(6) The parties, or in the absence of a party the persons representing the party in attendance at a mediation session, shall have authority to settle the dispute.

(7) The procedure and methodology to be followed at a mediation session may vary according to the particular style and approach of the mediator who shall, after consultation with the parties, adopt an approach which in his or her opinion is best calculated to facilitate the purposes of the mediation and otherwise complies with the requirements of this rule.

Failure to attend and other non-compliance

37A.05. (1) If it is not practical to conduct a scheduled mediation session because a party fails to attend within 30 minutes of the time scheduled for the commencement of the session, unless the parties in attendance agree otherwise, the mediator shall cancel the session and immediately file with the mediation co-ordinator a certificate of non-compliance.

(2) Where a mediator files a certificate of non-compliance or where a party fails to comply with a requirement of this rule, another party may apply for, or the Court on its own motion may make, an order that is considered just, including an order

(a) establishing a timetable for the proceeding;

(b) requiring a further mediation session at the expense of the defaulting party;

(d) staying further proceedings in Court until a mediation session has been conducted in compliance with this rule;

(e) striking out a document filed by a party; and

(f) as to costs or setting the matter for a hearing in Court with respect to costs.

Results of mediation

37A.06. (1) Unless otherwise ordered, within 10 days after a mediation is concluded, the mediator shall

(a) file with the mediation co-ordinator and deliver to each of the parties participating in the mediation a report indicating on which issues agreement has been reached; and

(b) if all parties request, provide to the parties a report

(i) identifying the remaining points of difference, if any, and

(ii) containing recommendations that the mediator considers appropriate to make as to how the remaining issues might be resolved.

(2) The mediator's report filed under clause (1)(a) shall, unless it reports that the matter has been resolved, be sealed by the mediation co-ordinator and be kept separate from the Court file containing the pleadings and shall not be disclosed to the trial judge.

(3) All communications during a mediation session

(a) shall constitute without prejudice settlement discussions;

(b) shall be privileged from disclosure; and

(4) Communications under paragraph (3) include, but are not limited to, the following:

(a) the mediator's recollections of a mediation session;

(b) the mediator's notes and records relating to a mediation session; and

(5) A mediator shall not be a compellable witness regarding any aspect of a mediation session relating to the issues being mediated or the results including discussions relating to those issues.

(6) A mediator appointed under these rules may stipulate that he or she is not liable for loss or damage suffered by a person by reason of an action or omission of the mediator in the discharge of his or her duties under these rules.

(7) If there is an agreement resolving all or any of the issues in dispute, it shall be in writing and signed by all parties participating in the agreement or their solicitors.

(8) Notwithstanding paragraphs (3) and (4), an agreement under paragraph (7) shall be admissible in evidence for the purpose of enforcing that agreement.

(9) If an agreement under paragraph (7) settles the action, the Plaintiff shall file a Memorandum of Settlement under rule 39.09

(a) in the case of an unconditional agreement, within 10 days after the agreement is signed, and

(b) in the case of a conditional agreement, within 10 days after the condition is satisfied.

(10) If following mediation the proceeding remains unresolved in whole or in part, a party may proceed with the conduct of the proceeding, or that portion of the proceeding that remains unresolved, in the normal course.

(11) Where a party to a signed agreement fails to comply with its terms, another party to the agreement may apply to the Court for

(a) judgment in the terms of the agreement, and the Court may grant judgment accordingly or with those modifications as subsequent circumstances may require to ensure that the applying party receives that to which the applying party is substantially entitled under the agreement; or

(b) leave to continue the proceeding as if there had been no agreement.

Costs of mediation

37A.07. Unless otherwise ordered or the parties otherwise agree, the mediator's fees and expenses shall be borne equally by the parties to the mediation.

Mediators fees

37A.08. (1) A mediator on the mediators list shall file with the Registrar the mediator's schedule of fees.

(2) A mediator under this rule,

(a) who is on the mediators list shall not charge fees for his or her services in excess of those filed with the Registrar, or

(b) who is not on the mediators list shall not charge fees and expenses in excess of a schedule of fees negotiated in advance with the parties and reduced to writing.

Mediators list

37A.09. (1) On notice to the mediator, the Registrar may remove from the mediators list the name of a mediator who does not comply with this rule or an order made under this rule.

(2) The Registrar may remove from the mediators list a mediator whose fees the Registrar may consider unreasonable.

Exemption

37A.10. This Rule shall not apply to family law proceedings.

10. Rule 39 of the rules is repealed and the following substituted:

RULE 39
CONFERENCES GENERALLY

Application of this rule

39.01. Unless otherwise specified or ordered, this rule applies to pre-trial conferences and settlement conferences.

Setting down conferences

39.02. (1) The Registrar shall maintain a Pre-Trial List and a Settlement Conference List setting forth, in chronological order, each proceeding that has been placed on those Lists under these rules or an order.

(2) The Registrar shall publish a list, not later than the first day of each month, setting the dates and times when pre-trial and settlement conferences are scheduled for cases during the next calendar month.

(3) Within 15 days of receipt of notice of the date and time for a conference,

(a) the parties may in writing jointly request 3 alternate conference dates or times and the Registrar shall

(i) assign one of the alternate dates or times; or

(ii) move the proceeding to the bottom of the list,

and notify the parties accordingly; and

(b) a party may apply to a judge to postpone a scheduled conference and to fix another date.

General powers

39.03. Notwithstanding any other rule, a judge in a proceeding may, on his or her own initiative or at the request of a party, order the parties to attend a pre-trial conference or a settlement conference.

Attendance

39.04. Unless otherwise ordered, counsel who attend a conference shall be counsel who are otherwise fully authorized, briefed and prepared to discuss, deal with and, where appropriate, give binding undertakings with respect to all matters properly arising during the conference.

Conference procedures

39.05. Nothing in these rules prevents a judge during a conference, if he or she considers it to be in the interests of justice, from

(a) speaking directly to the parties;

(b) inviting a party, in the presence of counsel for that party, if any, to speak during the conference; and

(c) meeting with one or more parties or counsel for those parties or both in the absence of one or more of the other parties to the proceeding.

Discussions are without prejudice

39.06. (1) Discussions at a conference are without prejudice and shall not be referred to a subsequent application, or at the trial except as disclosed in an order.

(2) Except as provided in rule 39A.05, the judge conducting a conference shall not disclose to the trial judge or to another person what positions were taken or what admissions, concessions or opinions were made or given during the conference, and shall not include reference to those matters in a written report of the conference subsequently prepared by him or her.

Remote conferencing

39.07. A judge may, if requested by one or more of the parties, direct that a conference be held wholly or partly by telephone, teleconference or video conference.

Agreement on issues

39.08. (1) If there is an agreement during a conference resolving all or any of the issues in dispute, it shall be either

(a) in writing and signed by all parties participating in the agreement or their solicitors;

(b) read into the record in the presence of the judge presiding over the conference; or

(2) Notwithstanding rule 39B.04, an agreement resolving any or all of the issues between the parties which is reduced to writing and signed by or on behalf of the parties shall be admissible in evidence for the purpose of enforcing that agreement.

Settlement

39.09. When a proceeding is settled, the plaintiff or applicant shall file within 10 days of settlement

(a) a Memorandum of Settlement containing a statement that the matter has been settled; or

(b) a notice of discontinuance.

Consequences of failing to file documents

39.10. Where counsel or a party fails to file documents required for a conference before the deadline for filing set out in the Rules, the judge at the conference may make an order as to costs that is considered just or, in appropriate circumstances, set the matter for a hearing in Court with respect to costs.

Consequences of failure to attend conference or lack of preparedness

39.11. Where counsel or a party who is required to attend fails to attend a conference or where counsel is not prepared or authorized to proceed in accordance with rule 39.04, the judge may make an order that is considered just, including an order

(a) establishing a timetable for the proceeding;

(b) setting the date for a further conference;

(i) moving the matter down on the Pre-Trial List or Settlement Conference List, or

(ii) removing the matter from the Pre-Trial List or Settlement Conference List without prejudice to the parties to file another Certificate of Readiness under rule 40.04;

(d) requiring a person to attend at a conference;

(e) staying further proceedings until a conference has been held;

(f) striking out a document filed by a party; and

(g) as to costs or setting the matter for a hearing in Court with respect to costs.

RULE 39A
PRE-TRIAL CONFERENCES

Purpose of pre-trial conferences

39A.01. The participants in a pre-trial conference shall come prepared and authorized to discuss and determine, where applicable,

(a) simplification of the issues;

(b) the amendment and filing of briefs for the benefit of the trial judge;

(d) admissions of fact or of consent documents;

(e) the resolution of the quantum of damages, if any, or any other matter by making it the subject of a reference;

(f) limitations on the number of expert witnesses;

(g) arrangements for expert witnesses to determine, on a without prejudice basis, those matters on which they agree and to identify those matters on which they do not agree;

(h) arrangements and procedures for the conduct of lengthy or complex trials;

(i) the appropriateness of conducting a settlement conference or mini-trial;

(j) the appropriateness of assigning a fixed date for trial; and

(k) other matters that may aid in the disposition of the proceeding.

How to get a matter on the Pre-Trial List

39A.02. Matters shall be placed on the Pre-Trial List

(a) under rules 40.04 or 40.05; or

(b) by order of a judge either following a settlement conference or otherwise.

Documents to be filed before pre-trial conferences

39A.03. (1) At least 5 days before the date of the pre-trial conference, each party shall file for delivery to the pre-trial conference judge a brief containing a summary of the facts, issues and law and shall deliver on the same date a copy to each other party.

(2) Notwithstanding rule 46.07, at least 4 days before the scheduled date of a pre-trial conference, the parties shall exchange copies of all expert opinions and reports in their possession or under their control and upon which they intend to rely at trial and shall produce those opinions and reports to the judge at the conference.

Disposition of pre-trial conference

39A.04. At or following a pre-trial conference the judge shall

(a) order that the parties attend a settlement conference or mini-trial;

(b) order a summary trial or expedited trial;

(c) order that the proceeding be removed from the Pre-Trial List where the judge determines that the case is not ready for trial, without prejudice to the parties to file a new Certificate of Readiness under rule 40.04; or

(d) unless a settlement conference, mini-trial, summary trial or expedited trial has been ordered, order that the proceeding be set down for trial in accordance with rule 40.06,

and in any event, may make an order reciting the results of the conference and giving those directions as the judge considers advisable however, the order may be modified by subsequent order or at trial.

Report of the pre-trial conference

39A.05. Notwithstanding rule 39.06(2), a pre-trial conference judge shall provide a report to the trial judge summarizing the anticipated issues in the trial and relevant agreements between the parties.

Pre-trial conference judge shall not preside at trial

39A.06. A judge who presides at a pre-trial conference shall not, except with the consent of the parties, preside at the trial.

RULE 39B
SETTLEMENT CONFERENCES

Purpose of settlement conferences

39B.01. (1) The purpose of a settlement conference is to allow the parties to attend before a judge who shall, in private and without hearing witnesses, explore all possibilities of settlement of the issues that are outstanding.

(2) The parties, or in the absence of a party, the persons representing the party in attendance at a settlement conference, shall have authority to settle the dispute.

How to get a matter on the Settlement Conference List

39B.02. (1) Matters shall be placed on the Settlement Conference List

(a) by order of a judge either following a pre-trial conference or otherwise; or

(b) subject to paragraph (2), on request of the parties after the pleadings have closed where the parties agree that it is likely the matter will be resolved with the assistance of a judge.

(2) Requests under clause (1)(b) shall be made by filing a Request for Settlement Conference in Form 39B.02A signed by all parties or their counsel.

(3) Where the judge at a settlement conference determines that it was not appropriate for the parties to have requested a settlement conference under clause (1)(b), the judge may make an order as to costs that is considered just or, in appropriate circumstances, set the matter for a hearing in Court with respect to costs.

Documents to be filed before settlement conferences

39B.03. (1) Each party shall, at least 10 days before the date of a settlement conference, file a brief containing a summary of the facts, issues and law and shall deliver on the same date a copy to each other party.

(2) Unless the parties consent or the Court otherwise orders, materials delivered to a judge under paragraph (1) shall not be placed in the Court file and shall not be disclosed to the trial judge.

(3) Upon completion of a settlement conference, the judge shall return to the parties or their counsel the materials delivered for the purpose of the conference.

Communications during a settlement conference

39B.04. (1) All communications during a settlement conference

(a) shall constitute without prejudice settlement discussions;

(b) shall be privileged from disclosure; and

(2) Communications under paragraph (1) include, but are not limited to,

(a) the judge's recollections of the settlement conference;

(b) the judge's notes and records relating to the settlement conference; and

(3) No reference to the positions taken or admissions or concessions made by the parties, or to the opinion of the judge, at a settlement conference or other settlement-related proceeding, shall be contained in a brief or other document filed in a proceeding and shall not be referred to or commented on at the trial of that proceeding.

Disposition of settlement conference

39B.05. (1) If the parties settle the proceeding during a settlement conference, a Memorandum of Settlement or notice of discontinuance shall be filed in accordance with rule 39.09.

(2) If the parties do not settle the proceeding during a settlement conference, the judge may

(a) convert the settlement conference to a pre-trial conference;

(b) order a pre-trial conference and provide directions on the filing of a trial record and Certificate of Readiness, if necessary;

(d) order a summary trial or expedited trial; or

(e) make another order as is considered just.

(3) A pre-trial conference converted from a settlement conference shall be governed, with any necessary modifications, by Rules 39 and 39A and the judge shall make an order with respect to the filing of the trial record and Certificate of Readiness.

Settlement conference judge shall not preside at trial

39B.06. A judge who presides at a settlement conference shall not preside at the trial.

RULE 39C
MINI-TRIALS

Purpose of mini-trials

39C.01. The purpose of a mini-trial is to allow the parties to attend before a judge who shall, in private and without receiving sworn or affirmed evidence, give a non-binding opinion on the probable outcome of a trial of the proceeding.

General power

39C.02. Notwithstanding any other rule, a judge in a proceeding may, on his or her own initiative or at the request of a party, order a mini-trial.

Materials used during mini-trial

39C.03. (1) Unless the parties consent or a judge otherwise orders, materials delivered to a judge to be used during a mini-trial shall not be placed in the Court file and shall not be disclosed to the trial judge.

(2) Upon completion of a mini-trial, the judge shall return to the parties or their counsel the materials delivered for the purpose of the mini-trial.

Communications at mini-trial

39C.04. (1) The judge conducting a mini-trial shall not disclose to the trial judge or to another person what positions were taken or what admissions, concessions or opinions were made or given during the mini-trial, and shall not include reference to those matters in a report subsequently filed as to the holding of the mini-trial.

(2) Unless otherwise ordered, no reference to the positions taken or admissions or concessions made by the parties, or to the opinion of the judge, at a mini-trial shall be contained in a brief or other document filed in a proceeding and shall not be referred to or commented on at the trial of that proceeding. A judge may provide an opinion in writing following a mini-trial but it shall not form part of the record of the proceeding or be placed in the Court file.

Mini-trial judge shall not preside at the trial

39C.05. A judge who has heard a mini-trial shall not preside at the trial.

11. Rule 40 of the rules is repealed and the following substituted:

RULE 40
PLACE AND MODE OF TRIAL AND SETTING DOWN

Application and interpretation

40.01. In this rule, "proceeding" means a proceeding commenced by a statement of claim.

Place of trial

40.02. Unless otherwise ordered, a trial shall take place at the judicial centre where the proceeding is commenced.

Setting down for trial - trials of 5 days or fewer

40.03. (1) If a trial is anticipated to take 5 days or fewer, a party may make an application for a trial date within 90 days after the close of pleadings.

(2) An application under this rule shall be accompanied by an affidavit setting out

(a) an outline of the issues to be determined at trial;

(b) the names of all witnesses anticipated to be called by the applicant at the trial with a brief summary of their anticipated evidence and, where known, the corresponding information for the opposing party;

(c) the number of documents expected to be introduced by the applicant at trial and, where known, the corresponding information for the opposing party; and

(d) the applicant's estimate of the length of trial.

(3) An opposing party may file an affidavit in response setting out matters considered relevant to the application.

(4) If the application under paragraph (1) is granted, the judge at the hearing shall

(a) if necessary, establish a schedule for the filing and exchange of trial documents;

(b) if necessary, establish a schedule for the filing and exchange of witness lists and will-say statements;

(d) determine whether a pre-trial conference is necessary and if so, set a date;

(e) make any other order necessary to facilitate appropriate preparation for trial; and

(f) with the assistance of the Registrar, set a date for the trial.

Setting down for trial - General

40.04. (1) If a trial date has not been set under rule 40.03 and the proceeding is ready for trial, the parties may jointly initiate the procedures for setting the case down for trial by

(a) filing in the Registry a trial record containing a copy of

(i) the pleadings, particulars and admissions, and

(ii) orders relating to the conduct of the trial; and

(b) filing a Certificate of Readiness in Form 40.04A signed by all parties or their counsel.

(2) The trial record shall be filed in the Registry at the same time as the Certificate of Readiness.

(3) Unless the parties agree otherwise, the Plaintiff shall be responsible for filing the trial record and the Certificate of Readiness.

(4) Within 7 days of a Certificate of Readiness being filed, the Registrar shall examine it and,

(a) place the proceeding on the Pre-Trial List if it has been properly completed and signed; or

(b) reject it and so notify all parties or their counsel if it has not been properly completed and signed.

(5) A Certificate of Readiness that has been rejected by the Registrar may be amended and resubmitted, whereupon paragraph (4) shall apply to the Certificate as resubmitted.

Application where no Certificate of Readiness

40.05. (1) Where a party to a proceeding

(a) refuses, or fails within 10 days of a request by another party, to complete or sign a Certificate of Readiness; or

(b) disagrees with the rejection by the Registrar of a Certificate of Readiness under rule 40.04(4)(b)

a party may apply for an order that the proceeding be placed on the Pre-Trial List.

(2) An application under this rule shall set out

(a) the form of Certificate of Readiness that the applicant is prepared to sign;

(b) the circumstances known to the applicant which led to the failure or refusal to complete or sign by another party, or which led to the rejection of the certificate by the Registrar;

(d) a statement that the applicant nevertheless believes that either

(i) the case is ready for trial, or

(ii) the other party has disentitled himself or herself to further delay because of inaction or other cause.

(3) The Court shall

(a) place the case on the Pre-Trial List if

(i) the parties are in fact ready for trial, or

(ii) notwithstanding that one party may not be ready, the interest of the ready party in having an early trial outweighs the interest of that other party to further delay, in which case the Court may give directions prescribing or limiting the further procedures which that other party may conduct; or

(b) dismiss the application and give further directions and make further orders respecting trial preparation as may be appropriate; and

(i) against an unready party, if the case is placed on the Pre-Trial List,

(ii) against the applicant if the application is dismissed, or

(iii) against a party who failed or refused to sign the Certificate of Readiness, if the Court determines that the failure or refusal was not justified.

Setting down for trial

40.06. (1) Unless otherwise ordered, no trial date shall be given until a pre-trial conference has been held.

(2) If at a pre-trial conference a judge considers that the case is ready for trial, and no settlement conference, mini-trial, expedited or summary trial has been ordered, he or she shall immediately

(a) set a fixed date for the trial or order that the proceeding be placed on the Fixed Date List, if

(i) the proceeding is to be tried with a jury, or

(ii) there are other reasons that merit fixing a specific date; and

(b) in all other cases, order that the proceeding be placed on the General List.

(3) The Registrar shall place the case on the General List without prejudice to the right of a party to apply for a fixed date if

(a) a pre-trial conference has been held;

(b) 30 days has passed, or a longer time as all parties may agree in writing filed in the Registry, since a settlement conference or mini-trial; and

Settlement

40.07. Where a Memorandum of Settlement is filed under rule 39.09

(a) if no consent order is required as part of the settlement, the Registrar shall immediately remove the case from the trial list and the proceeding shall be considered to be discontinued in accordance with the terms of the Memorandum of Settlement; or

(b) if a consent order is required as part of the settlement, the form of that order shall be filed with the Registrar for delivery to the judge who conducted the pre-trial conference, settlement conference or mini-trial, if any, or to a judge in any other case, and, if approved, rule 40.07(a) shall apply.

Consequences of setting down

40.08. (1) When a proceeding has been placed on the General List or the Fixed Date List or a date for trial has been fixed

(a) all parties shall be considered to be ready for trial;

(b) except with leave of the Court, no party shall initiate or continue an application that is based on facts or events which were known before the date of filing of the Certificate of Readiness;

(d) the trial shall proceed when the case is reached on the General List, Fixed Date List or the fixed date arrives, unless otherwise ordered.

(2) Where a trial does not proceed when the proceeding is reached on the General List, Fixed Date List or the fixed date arrives and no order is made under clause (1)(d), the Registrar shall, unless otherwise ordered, strike the proceeding off the appropriate list.

(3) Where a proceeding is struck off a trial list under paragraph (2), it shall not be placed on a trial list afterwards except on application.

(4) This rule does not

(a) relieve a party from complying with undertakings given on an examination for discovery;

(b) relieve a party from an obligation imposed by rules 30.10, 32.09, 33.02, 34.04 and 46.07; or

Publication of General List

40.09. (1) The Registrar shall publish a list not later than the first day of each month, setting forth the proceedings which are expected to come on for hearing or trial during the next calendar month and that list shall state a time on or after which the trial or hearing shall take place.

(2) The Registrar shall publish a list not later than noon each day setting forth the list of proceedings which are to come on for trial or hearing during the next sitting day of the Court and shall immediately notify the parties.

(3) The Registrar shall deliver to the Central Registry a copy of the docket comprising the General List, Fixed Date List and Monthly List not later than the twentieth day of each month.

Brief for trial judge

40.10. Each party shall, on or before the fourth day preceding the trial, file in the Registry and provide to each other party either

(a) confirmation that the party will rely on the pre-trial brief prepared under rule 39A.03(1) with no changes; or

(b) an amended brief containing a summary of the facts, issues and law relevant to the proceeding.

Dismissal for want of prosecution

40.11. Where a plaintiff does not apply to set a proceeding down for trial, the defendant may apply to set it down for trial or apply to the Court to dismiss the proceeding for want of prosecution, and the Court may order the proceeding to be dismissed or make an order that is just.

Notification of change in status

40.12. A party shall immediately furnish the Registrar with information that may affect the estimated duration of a trial or changes in contemplated procedure or circumstances that may result in delay of the trial.

Order for separate trials, etc.

40.13. Where claims in respect of 2 or more causes of action are included in the same proceeding, or where 2 or more plaintiffs or defendants are parties to the same proceeding, and it appears to the Court that the joinder of the causes of action or parties may embarrass or delay the trial or is otherwise inconvenient, the Court may order separate trials or make an order that is just.

General powers

40.14. Notwithstanding any other rule, the Court may

(a) assign an early trial date;

(b) assign a fixed date for trial;

(d) order that a proceeding be placed on the General List; and

(e) order that the position of a proceeding on the Fixed Date List or General List be advanced or otherwise changed.

Transition

40.15. (1) Dates for a proceeding, including trials, settlement conferences, pre-trial conferences and mediations, that were set before these rules coming into force shall proceed as scheduled, unless otherwise ordered.

(2) The Pre-Trial List, the Settlement Conference List, the Fixed Date List and the General List which existed before the date these rules come into force shall continue to be the lists of the Court.

(3) Trial records and Certificates of Readiness that were filed before the date these rules come into force are not required to be re-filed as a result of changes to these rules.

12. Rule 49.08 of the rules is repealed and the following substituted:

Default and summary judgments

49.08. A party may apply for a default order under Rule 16, and for a summary order before trial under Rule 17 and rule 40.11.

13. Rule 56C.05 of the rules is repealed and the following substituted:

Non-Application of Family Justice Services Division involvement

56C.05. The Family Justice Services Division or the process set out in this part shall not apply to the following claims for relief:

(a) the claim relates only to the granting of a divorce;

(b) a claim for a division of matrimonial property; and

but Rules 37A, 39.09, 39B and 39C may apply, as, in the opinion of a judge the circumstances may warrant.

Forms Amdt.

14. The rules are amended by

(a) adding Form 39B.02 as outlined below;

(b) repealing Form 40.05A.

Commencement

15. These rules come into force on January 11, 2011.