This is an official version. |
Copyright © 2022: Queen’s Printer, Important Information
|
|
RULE 40 Analysis
Application and interpretation 40.01. In this rule , "proceeding" means a proceeding commenced by a statement of claim. 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; (c) determine whether examinations for discovery are necessary and if so, establish a schedule for all examinations; (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 with the Court 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 with the Court 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; (c) the known points of difference, if any, between the parties as to the state of readiness for trial; and (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 (c) may award costs (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. 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 with the Court, since a settlement conference or mini-trial; and (c) the parties have not filed a Memorandum of Settlement or notice of discontinuance under rule 39.09.
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 Court 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. 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; (c) except with leave of the Court, no party shall initiate or continue any form of discovery; and (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 (c) preclude a party from resorting to rules 20, 22.02(1), 33 and 40.14. 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) [Rep. by 36/14 s50] 40.10. (1) Each party shall, on or before the fourth day preceding the trial, file with the Court (a) an additional copy of the pre-trial brief prepared under rule 39A.03(1), if the party intends to rely on that brief for the trial; or (b) one original and one copy of an amended brief containing a summary of the facts, issues and law relevant to the proceeding. (2) Each party shall, within the time limit set out in paragraph (1), 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) a copy of the amended brief filed under clause (2)(b). 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 provide the Court 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. 40.14. Notwithstanding any other rule, the Court may (a) assign an early trial date; (b) assign a fixed date for trial; (c) order that a proceeding be placed on the Fixed Date List; (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. |