Rules of the Supreme Court, 1986

Application and Interpretation

40.01. This rule applies to a proceeding commenced by a statement of claim, and any reference in this rule to a "proceeding" shall mean to a proceeding so commenced.

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Place of Trial

40.02. (1) Unless the Court otherwise orders, the place of trial of a proceeding, or of any question or issue arising therein, shall be at the judicial centre where the proceeding was commenced.

(2) Upon satisfying the Court that the defendant has a good defence and all the plaintiffs reside out of the jurisdiction or it is otherwise just, the defendant may obtain an order changing the place of trial to any place within the province.

(3) When the Court orders, any proceeding may be tried at any time or at any place in the province.

165/94 s4; 240/94

Mode of Trial

40.03. (1) When the Court deems it expedient to do so, it may, in such manner and upon such terms as it thinks just, try any proceeding, or any question or issue therein, with the assistance of one or more qualified assessors.

(2) The Court may refer a proceeding, or any question or issue therein to a referee, with or without the assistance of assessors, as provided in rule 43.

(3) In all other cases, a proceeding, or any question or issue therein, shall be tried by the Court without a jury.

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Time, etc., of Trial of Questions or Issues

40.04. The Court may order any question or issue, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial, and may give directions as to the manner in which the question or issue shall be stated.

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Certificate of Readiness

40.05. (1) When a 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 copy of a trial record containing

(i ) a copy of the pleadings, any particulars of them and any admissions in response to a notice to admit facts; and

(ii) any order containing directions for the trial; and

(b) filing a Certificate of Readiness in Form 40.05A, and two copies signed by all parties or their counsel.

(2) Upon rec eipt of a Certificate of Readiness, the Registrar or any person designated by him pursuant to subsection 63(2) of the Judicature Act , shall examine it and, within seven days of such examination,

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

(b) if it has not been properly completed or signed, reject it and so notify counsel for the parties.

(3) A Certificate of Readiness that has been rejected by the Registrar or his or her designate may be amended and resubmitted, whereupon rule 40.05(2) shall apply to the Certificate as resubmitted.

165/94 s4; 240/94; 9/00 s4

Application where no Certificate of Readiness

40.06. (1) Where a party to a proceeding

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

(b) disagrees with the rejection by the Registrar or his or her designate of a Certificate of Readiness pursuant to rule 40.05(2)

any party may apply to the Court by interlocutory application (Inter Partes ) requesting that any differences respecting readiness for trial be resolved and that the matter be placed on the Pre-Trial List.

(2) An application pursuant to 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 any other 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) In an application pursuant to this rule, the Court shall, unless special circumstances warrant otherwise:

(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 thereafter conduct;

(b) in all other cases, dismiss the application and give such further directions and make such further orders respecting trial preparation as may be appropriate;

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

(ii) against the applicant if the application is dismissed and it did not involve rejection of a Certificate of Readiness by the Registrar; or

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

165/94 s4; 240/94

Setting Down for Trial

40.07. (1) Unless otherwise ordered by a judge, no trial date shall be given until a pre-trial conference has been held pursuant to Rule 39.

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

(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 meriting the fixing of a specific date;

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

(3) If within thirty days of conclusion of a settlement conference or mini-trial or such longer time as all parties may agree in writing filed in the Registry, the parties have not filed a Memorandum of Settlement pursuant to rule 39.06, the Registrar shall place the case on the General List without prejudice to the right of any party to apply for a fixed trial date.

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Settlement

40.08. Where a Memorandum of Settlement is filed pursuant to rule 39.06

(a) if no consent orders are required as part of the settlement, the Registrar shall automatically remove the case from the General List and the proceeding shall be deemed to be discontinued in accordance with the terms of the Memorandum of Settlement;

(b) if consent orders are required as part of the settlement, the form of the proposed orders shall be brought to the attention of the judge who conducted the settlement conference or mini-trial, if any, or to any judge in any other case, and, if approved, rule 40.08(a) shall thereafter apply.

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Consequences of Setting Down

40.09. (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) except with leave of the Court, no party shall initiate or continue any application that is not based on facts or events occurring or which first became known since the date of filing of the Certificate of Readiness;

(b) except with leave of the Court, no party shall initiate or continue any form of discovery that is not based on facts or events occurring or which first became known since the date of the discovery to which the proposed new discovery relates or in the case where no previous discovery was undertaken, since the date of filing of the Certificate of Readiness;

(d) the trial shall proceed when the case is reached on the General List or the fixed date arrives, unless a judge otherwise orders.

(2) Where a trial does not proceed when the case is reached on the General List or the fixed date arrives and no order is made pursuant to rule 40.09(1)( c), the Court shall, unless special circumstances require otherwise, drop the case to the bottom of the General List or strike it off the list, or in the case of a fixed date trial, adjourn the matter without a new date.

(3) Where a proceeding is struck off a trial list or adjourned without a date pursuant to rule 40.09(2) it shall not thereafter be placed on any trial list except with leave of a judge.

(4) Rule 40.09(1)( a) does not

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

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

165/94 s4; 240/94

Publication of General List

40.10. (1) The Registrar shall publish a monthly list in the Registry not later than the first day of each month, setting forth the proceedings from the General List and the Fixed Date List of the docket which are expected to come on for hearing or trial during the next calendar month and such list shall state a time on or after which the trial or hearing shall take place.

(2) The Registrar shall publish a Weekly List in the Registry not later than noon each Wednesday setting forth the proceedings from the monthly list referred to in rule 40.10(1) which are expected to come on for hearing or trial during the next week, and shall immediately notify the solicitors named on the pleadings in the proceedings.

(3) The Registrar shall publish a Daily List in the Registry not later than noon each day setting forth the list of proceedings from the weekly list referred to in rule 40.10(2) which are to come on for trial or hearing during the next sitting day of the Court and shall immediately notify the solicitor named on the pleadings in the proceeding.

(4) At any time any party may request that a fixed date be set for the trial or hearing of a proceeding and the Court may, for reasonable cause, direct that a proceeding be placed on the Fixed Date List of the docket and that the trial or hearing of the proceeding take place on a fixed date.

(5) 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.

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Brief for trial judge

40.11. (1) Where a proceeding has been entered for trial, each of the parties shall, on or before the fourth day preceding the trial, file in the Registry an original and a copy of the pre-trial brief prepared pursuant to rule 39.02(3) or such amended brief containing a summary of the facts, issues and law that may have been ordered at the pre-trial conference or that the party filing same may deem necessary.

(2) The parties shall before the trial exchange copies of their respective briefs.

165/94 s4; 9/00 s4

Dismissal for Want of Prosecution

40.12. 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 such order as is just.

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Notification of Change in Status

40.13. The parties shall immediately furnish the Registrar with any information that may affect the estimated duration of a trial or any changes in contemplated procedure or any circumstances that may result in delay of the trial.

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Abatement, etc. of Proceeding

40.14. Where a proceeding becomes abated or the interest or liability of any party is assigned or transmitted to or devolves on some person other than a party, the plaintiff or party having the conduct of the proceeding shall immediately notify the Registrar in writing of any such change, and the Registrar shall make the appropriate entry in his or her records.

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Order for Separate Trials, etc.

40.15. Where claims in respect of two or more causes of action are included in the same proceeding, or if two 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 such order as is just.

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General Powers

40.16. Notwithstanding any other rule, the Court may at any time, if special circumstances warrant and without requiring the parties to comply with any or all normal procedures for setting a proceeding down for trial,

(a) assign an early trial date;

(b) assign a fixed date for trial;

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

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

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Transition

40.17. (1) In this rule

(a) "Old General List" means the General List as it existed under rule 40.08 prior to its repeal on January 1, 1995;

(b) "Old Fixed Date List" means the Fixed Date List as it existed under rule 40.08 prior to its repeal on January 1, 1995.

(2) Rules 40.05 to 40.09 shall apply to all proceedings not on the Old General List or the Old Fixed Date List.

(3) A proceeding on the Old General List or the Old Fixed Date List as of January 1, 1995, may at any time be transferred to the Pre-Trial List by the parties filing a Certificate of Readiness and otherwise complying with rules 40.05 or 40.06.

(4) Where a Certificate of Readiness is filed by, or an order pursuant to rule 40.06(3)(a) is made before March 1, 1995, in respect of a proceeding on the Old General List or the Old Fixed Date List and the proceeding is placed on the Pre-Trial List, it shall have priority on the list over all other cases not previously on the Old General List or Old Fixed Date List and in respect of other cases on the Old General List or Old Fixed Date List for which Certificates of Readiness were also filed by March 1, 1995, it shall rank in priority according to the date of placement on the Pre-Trial List.

(5) Where a proceeding on the Old General List or the Old Fixed Date List is placed on the Pre-Trial List by means of a Certificate of Readiness filed, or an order pursuant to rule 40.06(3)( a) made, after March 1, 1995, it shall rank in priority in respect of all other proceedings on the list according to the date of placement on the Pre-Trial List.

(6) Until a Certificate of Readiness is filed by parties in a proceeding on the Old General List or the Old Fixed Date List or application is made and granted under rule 40.06, the parties shall be deemed not ready for trial and shall not, unless special circumstances warrant, be assigned a trial date.

(7) At a pre-trial conference held in respect of a proceeding that was previously on the Old Fixed Date List, the judge conducting the pre-trial conference shall, in exercising the powers conferred by rule 40.07(2), take into account any fixed date that may have previously been assigned to that proceeding or the fact that the proceeding had previously been qualified, by virtue of its presence on the Old Fixed Date List, to receive a fixed date.

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Form 40.05A

[Style of Cause]

Certificate of Readiness

1. The parties hereby jointly certify that, as of this date, this proceeding is ready for trial and that

- pleadings have closed

- no amendments to pleadings are contemplated

- all relevant parties are before the court

- all examinations for discovery have been completed, or are hereby waived

- all interrogatories have been delivered and answered, or are hereby waived

- lists of documents have been exchanged in accordance with the rules

- all appropriate pre-trial applications have been taken

2. Current estimates of the number of witnesses to be called are as follows:

By the First Plaintiff:

Second Plaintiff:

Plaintiff:

By the First Defendant:

Second Defendant:

Defendant:

3. Current estimates of the total number of documents to be presented at trial are as follows:

By the First Plaintiff:

Second Plaintiff:

Plaintiff:

By the First Defendant:

Second Defendant:

Defendant:

A joint Book of Documents will/will not [delete one] be entered in evidence by consent.

It is anticipated that (delete as required):

(a) audio recordings may be entered/played in evidence

(b) video recordings may be entered/played in evidence

(d) a __________ language interpreter may be required for the evidence of __________

and the party or parties proposing same hereby undertake to make all necessary arrangements to facilitate such activities at trial.

4. Current estimates of the number and area of expertise of expert witnesses to be called to give evidence are as follows:

Number Area of Expertise

By the First Plaintiff:

Second Plaintiff:

Plaintiff:

By the First Defendant:

Second Defendant:

Defendant:

5. It has been agreed that not more than _____ sitting days is a reasonable time for the hearing of all evidence and argument in this proceeding

The parties are not in agreement as to their estimate of a reasonable time for the hearing of all evidence and argument in this proceeding. The estimates of each party of the time involved in presentation of that party's case are as follows:

By the First Plaintiff: _______ days

Second Plaintiff: _______ days

Plaintiff: _______ days

First Defendant: _______ days

Second Defendant: _______ days

Defendant: _______ days

6. The parties do/do not [delete one] request a settlement conference in which case they estimate _____ hours for its completion.

7. The parties do/do not [delete one] request a mini trial in which case, they estimate _____ hours for its completion.

8. The trial record has been filed pursuant to rule 40.05(1)( a).

9. [Delete if not applicable]

Pursuant to the Jury Act we hereby jointly request that this proceeding be tried by a judge with a jury

This proceeding involves an action of defamation, malicious prosecution, false imprisonment, seduction or breach of promise of marriage and the [insert party requesting] hereby requests, pursuant to subsections 32(1) and (2) of the Jury Act , that the issues of fact be tried by a judge with a jury

The [insert party requesting] hereby requests, pursuant to section 32(3) of the Jury Act , that this proceeding be tried by a judge with a jury, for the reasons that:

10. The parties hereby request [or (if a settlement conference or mini-trial is requested) anticipate they will ultimately request]

(a) the earliest available position on the General List; or

(b) a position that will result in trial not before _____________, 19 _____, on the General List; or

(d) an early fixed trial date, for the reasons that:

The parties cannot agree on the manner and times of setting down of this proceeding for trial.

The position of the First Plaintiff, and the reasons therefore, are:

The position of the Second Plaintiff, and the reasons therefore, are:

The position of the __________ Plaintiff, and the reasons therefore, are;

The position of the First Defendant, and the reasons therefore, are:

The position of the Second Defendant, and the reasons therefore, are:

The position of the __________ Defendant, and the reasons therefore, are:

11. If the proceeding is settled before trial we will give the Registrar prompt notice of the settlement by filing a Memorandum of Settlement pursuant to rule 39.06.

12. We undertake to give promptly to the Registrar notice in writing of any information that may affect the estimated duration of trial or any changes in contemplated procedure or any circumstance that may result in delay of trial.

13. The counsel who shall have carriage of the proceeding at trial and/or who are authorized and will be fully briefed to attend and participate in any pre-trial or other conference are:

For the First Plaintiff: 1.
2.

Second Plaintiff: 1.
2.

Plaintiff: 1.
2.

For the First Defendant: 1.
2.

Second Defendant: 1.
2.

Defendant: 1.
2.

DATED at ___________, this _______ day of _______, 19_____.

Solicitor for First Plaintiff

Solicitor for Second Plaintiff

Solicitor for __________ Plaintiff

Solicitor for First Defendant

Solicitor for Second Defendant

Solicitor for __________ Defendant

14. The parties jointly estimate that _____ hours is a reasonable time for the conduct of the pre-trial conference in this proceeding.

The parties cannot agree as to an estimate of a reasonable time for the conduct of the pre-trial conference. The longest estimate of any party is _____ hours.

15. __________ practises outside of the judicial centre in which the pre-trial conference will likely be held and therefore requests permission to participate in any pre-trial conference by telephone/teleconference and hereby agrees to be responsible for the actual costs of such telephone call or teleconference.

165/94 s4; 240/94

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